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17 ELR 20466 | Environmental Law Reporter | copyright © 1987 | All rights reserved Coalition Against a Raised Expressway, Inc. v. DoleNo. 84-1219-C (S.D. Ala. October 20, 1986)The court holds that the Department of Transportation (DOT) and the Federal Highway Administration violated § 4(f) of the DOT Act by failing to determine that significant indirect impacts on historic sites located near a proposed interstate highway connector in Mobile, Alabama, constitute a constructive use of the sites under the Act. After initially reviewing the appropriate standard of judicial review for agency actions, the court first holds that the environmental impact statement (EIS) prepared in connection with the construction of highway I-210 is adequate under the National Environmental Policy Act (NEPA). The defendants conducted numerous studies and reviews of several alternative routes, and gave detailed reasons for why the alternative preferred by plaintiffs was rejected. Defendants' predisposed preference for the chosen route does not automatically invalidate the EIS, since there is no evidence that the decisionmakers' good faith objectivity was tainted or that DOT failed to adhere to NEPA requirements. The court then holds that the Secretary of DOT arbitrarily and capriciously decided that the I-210 highway did not use any property protected under § 4(f) of the DOT Act. Construction vibrations, noise, and visual obstructions would cause significant indirect harm to various historic and archaeological sites located close to the proposed route that would substantially impair the enjoyment and value of these properties, resulting in a constructive use. The court next holds that defendants have not violated the comprehensive and cooperative planning process required under the Federal Aid Highway Act (FAHA), 23 U.S.C. § 134, for certain urban areas. Differences between the city's and state highway department's master transportation plans concerning the location of the proposed highway connector do not mandate a conclusion that the statute has been violated. The court also holds that defendants have not violated the FAHA's public hearing requirements, 23 U.S.C. § 128. The court holds that defendants have complied with DOT regulations concerning abatement of highway traffic and noise impacts during construction. There is no evidence that the noise study reports conducted for the project are technically inadequate, and defendants are attempting to develop mitigation measures. The court holds that defendants complied with § 106 of the National Historic Preservation Act (NHPA). Defendants' responses to the comments of the Advisory Council on Historic Preservation indicate that they took those comments into consideration, even though they disagreed with them. The court holds moot plaintiffs' claim that defendants violated § 110(f) of the NHPA by not protecting the Mobile City Hall, a national historic landmark, to the maximum extent possible by taking action to minimize harm to the building. The court notes that § 110(f) establishes a higher standard of care than does § 106, which requires federal agencies to take into account the effect of their actions on historic properties, but concludes that its ruling under § 4(f) of the DOT Act concerning the constructive use of this and other historic properties renders unnecessary a need to rule on this claim independently. Finally, the court holds that the administrative record is adequate under the Administrative Procedure Act for judicial review. Counsel for Plaintiff Counsel for Defendant Counsel for Intervenor Cox, J.: This matter is before the court on a joint motion for summary judgment (Doc. #52) filed by the plaintiff Coalition Against a Raised Expressway, Inc. (CARE) and the intervenor National Trust for Historic Preservation in the United States (National Trust) and a motion for summary judgment (Doc. #53) filed by the defendants Elizabeth H. Dole, in her official capacity as Secretary of the U.S. Department of Transportation; Ray Barnhart, in his official capacity as Administrator of the Federal Highway Administration (FHWA); and, Ray D. Bass, in his official capacity as Director of the State of Alabama Highway Department (AHD). The plaintiffs/intervenor challenge the planned construction of the proposed Interstate 210 connector in Mobile, Alabama. The plaintiffs/intervenor contend that the defendants have failed to comply with various laws passed by Congress as statutory prerequisites which must be satisfied before interstate highway construction may commence and that the east Mobile River-Blakely Island alternative is a feasible and prudent alternative to the proposed elevated I-210 connector along the Water Street route. This court is asked to permanently enjoin the defendants from proceeding further with the planning, financing, contracting or the construction of the proposed elevated I-210 connector, including the purchasing of rights of way, until such time as the defendants can demonstrate compliance with the federal laws in question or until the defendants adopt the east Mobile River-Blakely Island alternative. The injury the plaintiffs/intervenor allege will result from adverse impact of the I-210 construction project include, but are not limited to: increased physical and psychological separation of the downtown Mobile area from the riverfront area along the western bank of the Mobile River; long term depression of the economic development and urban renewal now occurring in the downtown Mobile area; and significant visual, aesthetic, noise, access, safety, and economic impacts on historic properties, which will adversely affect public use and enjoyment of these historic buildings and areas. This court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361 (mandamus), and 5 U.S.C. §§ 701-706 (Administrative Procedure Act). The court finds that the plaintiffs/intervenor are entitled to summary judgment on the Section 4(f) claim. The defendants are entitled to summary judgment on all other claims except for the Section 110(f) claim, which the court concludes it need not decide at this time. Description of the I-210 Project In October 1980, the United States Congress statutorily designated an interstate highway connecting I-10 and I-65 as part of the interstate system by an amendment to Public Law 96-400 (Federal Administrative Record 5, hereafter FAR). This amendment made available for federal interstate funding a highway of "6.25 miles in the State of Alabama connecting I-10 and I-65 in the vicinity of Mobile — Prichard" (FAR 5). The segment was subsequently designated I-210. The defendants selected a route for the I-210 project along the west side of the Mobile River, with the southern segment of the connector to be constructed as an elevated highway along Water Street.1 From I-10 to Beauregard Street the proposed highway will [17 ELR 20467] have four lanes, and it will widen to six lanes from Beauregard Street north to I-65. The interstate connector wil have control of access with interchanges at I-10 west tunnel, Beauregard Street, Bay Bridge/Telegraph Road, Wilson Avenue and Craft Highway and the I-65 terminus. There are four planned overpass structures to accommodate local traffic flow. The proposed I-210 connector is subdivided into three distinct segments: the southern segment, the middle segment, and the northern segment. The southern segment is the focus of this litigation and lies adjacent to the Mobile Central Business District (CBD). This area is delineated by the Mobile River to the east, Lawrence Street to the west, Canal Street to the south, and Marion Street to the north. Water Street runs north from its interchange with I-10, along the west side of the Mobile River, and lies immediately adjacent to the downtown historic and business districts of Mobile. These historic sites include the Church Street East Historic District, the Lower Dauphin Street Commercial Historic District, and DeTonti Square Historic District, the Mobile City Hall (a National Historic Landmark), the G.M.&O. Railroad Terminal and Water Street Archeological Sites. Standards for determination of significant cultural resources are based on requirements of the National Historic Preservation Act, and Section 4(f) of the Department of Transportation Act. Based on these guidelines, the following categories of cultural resources were determined to be of some historic and/or prehistoric significance: (1) existing National Register of Historic Places buildings or districts; (2) buildings or districts which are considered eligible for the National Register of Historic Places; (3) areas surveyed for nomination to the National Register of Historic Places by other parties; (4) areas or buildings of local historic or architectural significance; (5) cemeteries associated with historic events; (6) prehistoric or historic archeological sites; or (7) areas which are likely to contain as yet undiscovered historic or prehistoric archeological sites. The following historic sites and parks are located within the proposed I-210 connector corridor: A. Church Street East Historic District This is Mobile's largest and most varied historic district, occupying approximately 51 city blocks at the south end of the City. The district includes family residences, commercial buildings, Churches, hotels, and public buildings, including the Mobile City Hall. Three architectural styles predominate within the district: Federal/Greek revival; Creole or Gulf Coast raised cottages; and Italianate. The district contains a number of structures from the antebellum period, which was its most significant growth period. See FAR Document T, p. 14. Three of the most notable historic buildings are the Government Street Presbyterian Church (1836), the Cathedral of the Immaculate Conception (1835-49), and the LeClede Hotel (1855-56). In 1971, the district was listed on the National Register of Historic Places (FAR Document S). The proposed I-210 project will come within 55 feet of Fort Conde and within 43 feet of the City Hall. Id. at V-21. B. The DeTonti Square Historic District Named after French explorer Henri DeTonti, this district is a predominately residential district and is contemporaneous with the Church Street East Historic District. Most of the homes in the district are well-maintained and were originally built for wealthy cotton factors, commission merchants, planters and satellite professionals. The predominant architectural style is the Federal/Greek revival cottage, with ironwork porches common throughout the district. Approximately 50 structures of merit are in the district (FAR Document T, p. 14). This historic district was established in 1972. The proposed route would be located approximately 400 feet from the DeTonti Square district (Preliminary Case Report, hereafter PCR). This structure is Mobile's only National Historic Landmark, designated in 1973. Constructed in 1858, this Italianate building housed an open-air market on the first floor, while the City government offices were located on the second floor — a combination that was common in Europe during the 1800's. It is now the oldest continually operating City Hall in the United States. The building, which features intricate ironwork gates and grills, has been rehabilitated within the last several years (FAR Document T, p. 20). The proposed I-210 highway would be as close as 43 feet from the City Hall FAR Document T, p. 26; PCR IV-21). D. The Lower Dauphin Street Commercial Historic District This district lies immediately north of the Church Street District and contains 144 buildings that reflect Mobile's commercial and industrial development during the 19th and 20th centuries from its early roots in the cotton industry to its role as a major port handling diverse commodities and manufactured goods. The advent of the Mobile and Ohio Railroad in 1848 dramatically increased the City's importance as a commercial port. Although a fire in 1839 destroyed most of the buildings in the district, many of the existing structures date from the 1840's and after the Civil War (FAR Document T, p. 20-21). Notable buildings in the district include the Farley Building (1887), the Brisk-Jacobson Store (1869), and the Pincus Building (1891). Adjacent to the Lower Dauphin Street Commercial Historic District and the I-210 project are two other commercial buildings that have been identified as major historic resources and included in the National Register as individually significant properties: the Coley Building (1836) and the First National Bank (1905). The district was listed on the National Register of Historic Places in 1979 (PCR, p. iii). The proposed I-210 project will be as close as 85 feet from the closest structure in the district (Id. at IV-18). E. The G.M.&O. Railroad Terminal This structure was built in 1907 to further expand the capabilities of the City's port. The terminal is one of the earliest examples of Spanish Revival style architecture in the southeast. The building's grand scale is balanced by numerous large arched openings and windows across all of its facades. Symmetrically organized facades of the L-shaped building contain elaborate decorative applied ornamentation. A large dome caps the terminal and is a visual landmark that can be seen from the waterfront. In 1975 the G.M.&O. Terminal was placed on the National Register of Historic Places. The proposed I-210 highway will be as close as 100 feet from the Terminal (PCR p. iii, IV-17, FAR Document T, p. 26). F. Water Street Archeological Sites Many areas in Mobile, especially near the waterfront, have been built up directly on the remains of the City as it existed in the 18th and 19th centuries. Prior to 1907, the G.M.&O. Railroad Terminal was located at the edge of the City's warehouse district, which was central to the City's port operations. In the late 1960's most of the warehouses were demolished in order to create Water Street. Thus, there is a very high potential of finding archeological remains and artifacts beneath Water Street that may provide important information about Mobile's early economic and maritime history (FAR Document T, p. 23). This park is located across Water Street from the northeast corner of the Church Street East Historic District (FAR 159). Both CARE and National Trust allege six (6) violations of federal law; additionally, National Trust alleges a seventh violation. The seven alleged violations are: 1. That the defendants have failed to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331 et seq. (NEPA), and applicable implementing regulations with respect to the proposed construction project; 2. That the defendants' proposed construction of the I-210 connector would require the use of historic sites in violation of Section 4(f) of the Transportation Act of 1966, 49 U.S.C. § 1653(f), and the regulations implementing that statute, because one or more feasible and prudent alternatives exist that would minimize or avoid such uses; 3. That the defendants have authorized and undertaken the proposed construction of the I-210 connector in violation of the "3-C" requirement of the Federal Aid Highway Act (FAHA), 23 U.S.C. § 134; 4. That the defendants have authorized and undertaken the proposed [17 ELR 20468] construction of the I-210 connector in violation of the public notice and hearing requirements of the FAHA, 23 U.S.C. § 128; 5. That the defendants have authorized the construction of the proposed I-210 connector in violation of the noise control regulations of the U.S. Department of Transportation (DOT), 23 C.F.R. § 772; 6. That the defendants have failed to fully and meaningfully consider the views of the Advisory Council on Historic Preservation (ACHP) concerning the impact of the I-210 project on historic properties, in violation of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f; and 7. That the defendants have failed to undertake, to the maximum extent possible, such planning and actions as may be necessary to minimize harm to the Mobile City Hall, a National Historic Landmark, in violation of Section 110(f) of the NHPA, 16 U.S.C. § 470h-2(f). The plaintiffs/intervenor's joint motion for summary judgment is based on the following legal claims: (1) that the administrative records filed in this court are not adequate for judicial review under 5 U.S.C. § 706 and that the matter must be remanded to the Department of Transportation to prepare an adequate record; (2) that the defendants violated the National Environmental Policy Act; (3) that the defendants violated Section 4(f) of the National Historic Preservation Act; and (4) that the defendants improperly certified the highway planning process requirement of 23 U.S.C. § 134. The defendants seek summary judgment on all claims in the complaints. On October 10, 1986, the court heard oral argument on the motions. Counsel for all parties stipulated that there are no disputed issues of material fact in this case and that the case can be disposed of on cross motions for summary judgment (Doc. #48). Judicial review of an administrative agency is governed by the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., which provides that a "reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found" not to meet six separate standards. In every case, an administrative decision must be set aside if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" or if the action did not satisfy constitutional, statutory, or procedural requirements. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 822, 28 L. Ed. 2d 136 [1 ELR 20110] (1971); 5 U.S.C. §§ (2)(A)(B)(C)(D).2 Under this standard, the agency's decision is entitled to a presumption of validity, or regularity, and the reviewing court is prohibited from substituting its judgment for that of the agency. Overton, at 832-24. Administrative decisions should be set aside "only for substantial procedural or substantive reasons as mandated by statute, not simply because the court is unhappy with the result reached." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460 [8 ELR 20288] (1978). The role of the reviewing court is to determine whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 S. Ct. 2246, 2256, 76 L. Ed. 2d 437 [13 ELR 20544] (1983). The presumption of regularity, however, does not prevent this court from engaging in a "thorough, probing, in-depth review" of the Secretary's decision in this case. Overton, at 823. Under the standards of § 706, a reviewing court is required to make a substantial inquiry. Id. Upon review, three determinations must be made: (1) whether the Secretary acted within the scope of her authority; (2) whether the actual choice made was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); the test as regards this determination is whether the Secretary based her decision on the relevant factors and whether there has been a clear error of judgment; and (3) whether the Secretary's action followed the necessary procedural requirements. Overton, at 823-24. Moreover, this court's review must be based upon the administrative record that was before the Secretary when the decision was made and not a record compiled for purposes of litigation. Focusing on these principles and keeping in mind that the burden of proof is on the parties attacking the agency's determination, the merits of the claims are addressed separately below. Since the Court of Appeals applies the same standard of review as the District Court and need not accord any particular deference to this court's conclusions as to whether the record supports the agency's decision, it is not necessary to make detailed findings of fact. Druid Hills Civic Association v. Federal Highway Administration, 772 F.2d 700, 714 [15 ELR 21082] (11th Cir. 1985). It is undisputed that the Secretary acted within the scope of her authority. The court's review, therefore, will concern whether the Secretary's decision is supported by the record, under applicable standards of review, and/or whether she followed the necessary procedural steps. Count One of the complaint alleges a violation of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C) & (E), and the DOT regulations implementing NEPA. Under 42 U.S.C. § 4332(2)(C), all federal agencies are required to prepare and circulate for public and interagency comment, a detailed draft and final Environmental Impact Statement (EIS) on any major federal action "significantly affecting the quality of the human environment," which would identify and discuss: (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 enhancement 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. CARE/National Trust attack the adequacy of the defendants' draft and final EIS on numerous grounds. Their primary NEPA claim is that the EIS did not adequately examine reasonable alternatives to a downtown elevated expressway. They allege the defendants did not adequately consider the impact of the preferred alternative on the future development of downtown Mobile. The options raised, but allegedly not considered in good faith, are (1) a route along the east side of the Mobile River along Blakely Island (as shown on the Mobile Master Plan), (2) a "spur" that would run at grade along Water Street, and (3) a combination of the two. Under 42 U.S.C. § 4332(2)(E) the defendants are required to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." CARE/National Trust allege that an unresolved conflict exists because the Advisory Council on Historic Preservation (ACHP) recommended construction of the highway on the east side of the river, due to the negative impact the proposed route would have on historical buildings and sites, and that the defendants have failed to comply with the statute by developing appropriate alternatives. Many of the same facts involved in the alleged NEPA violation are also relevant to the Section 4(f) claim and the 3-C's claim. To a large extent the relevant facts are discussed under those claims. The legal claims are distinct, however, and must be judged under different legal standards. Druid Hills, at 713, n. 15. The NEPA's mandate is procedural and does not dictate a particular decision, so long as the Government fully addresses environmental impacts of, and considers reasonable alternatives to, major projects. The "alternatives" section is the "heart" of the EIS, see 40 C.F.R. § 1502.14 (1985), and serves both to insure that the Government has actually considered alternative methods of obtaining its goal and has compared the environmental consequences of each alternative. Druid Hills, at 712. The test is whether an agency performed its environmental task with "good faith objectivity." Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123, 1129 [4 ELR 20329] (5th Cir. 1974). In evaluating the NEPA claim, the court is governed by the rule of reason, i.e., the court must recognize that NEPA is not intended [17 ELR 20469] to impose an impossible standard on the DOT, nor does it permit an artificial framework to limit the DOT's environmental activity. Druid Hills, at 709. The judicial task is "to determine whether the resulting statement permits the decisionmaker to take a hard look at the environmental factors." Id. It is not the duty of this court to determine the propriety of competing methodologies as though it were a "super professional transportation analyst." The court's duty is to determine "whether the EIS furnishes the statutory minima required by the NEPA." Id. at 711. The administrative record in this case is replete with studies, recommendations and reviews of several alternative routes. Moreover, the defendants have stated reasons in the FEIS why the alternatives were rejected. The record indicates that Blakely Island alternative was rejected because (1) it does not serve the identified traffic needs of the area; (2) it has low road user benefits; (3) it would adversely impact environmentally sensitive areas; (4) it would be excessively expensive to construct and would adversely impact industrial areas; (5) the route is totally inconsistent with the MATS transportation plan; (6) it duplicates the Cochrane Bridge function; and (7) it exceeds mandate corridor length by 1.7 miles (FEIS, II-30). The spur alternative was rejected for several reasons; primarily because it would function at an unacceptable level of service3 (LOS "E" or "F"), based upon future traffic projections.4 Other identified reasons were: higher accident potential due to entry of high speed interstate traffic from both directions, impaired access to the Alabama State Docks bulk cargo and container operations, and the need for Congressional approval to remain eligible for interstate funding (FEIS, II-31, 32). Several other alternatives were also rejected for reasons listed in the FEIS. While it is necessary for the DOT to consider even those alternatives that may require Congressional action, Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837 [2 ELR 20029] (D.D.C. 1972), the court finds that the defendants have satisfied the statutory minima in this case. The plaintiffs/intervenor claim that the defendants were predisposed to select the Water Street route and created a "paper record" to support that selection falls short in two ways. First, subjective impartiality is not required, so long as it does not taint the decisionmaker's good faith objectivity. Movement Against Destruction v. Trainor, 400 F. Supp. 533, 547 (D. Md. 1975). It would be an unusual situation in which the Government transportation officials have no opinion relative to what location would best meet the transportation needs of an area. Second, the plaintiffs/intervenor have failed to meet their burden of showing that the DOT failed to adhere to the NEPA requirements. CARE/National Trust claim that the defendants did not act in good faith. This is the most colorable thrust of the NEPA claim, but it too falls short of proof. They have not shown that the defendants did not act in good faith. Evidence does indicate that while upper level DOT/FHWA officials were discussing possible ways to obtain Congressional approval for a spur with Congressman Jack Edwards, the lower level officials in Atlanta were projecting a "take it or leave it" posture to the City of Mobile. Without more, this evidence indicates poor communication between upper and lower level DOT/FHWA officials — not a lack of good faith. Indeed, the defendants decided to designate the I-210 project as an interstate route only a few weeks after the law was passed and identified the southern terminus as a point near the west end of the George C. Wallace Tunnel (State Administrative Record Supp. 52, p. 162a, hereafter SAR). Moreover, the original contract with Greiner Engineering Sciences limited the scope of their work, and, at a later time, Greiner was instructed to study the Blakely Island route "to the point where it can be proven unfeasible" (FAR 92, p. 14a). This evidence does not prove the defendants did not act in good faith. An equally acceptable explanation is that the defendants acted with fiscal responsibility in the expenditure of public money. On this record, the defendants are entitled to summary judgment on the NEPA claim. Count Two of the complaint alleges that the proposed construction of the I-210 connector will require the use of historic sites in violation of Section 4(f) of the Transportation Act of 1966, 49 U.S.C. § 1653(f), Section 18(a) of the Federal-Aid Highway Act of 1978, 23 U.S.C. § 138, and the regulations implementing those statutes, because the Secretary erroneously decided that the I-210 connector did not "use" any Section 4(f) property because one or more feasible and prudent alternatives exist that would minimize or avoid such uses. In January, 1983, Section 4(f) of the Transportation Act of 1966, P.L. 86-670, 80 Stat. 934, was repealed by P.L. 97-449, 96 Stat. 2444, and recodified without substantive change at 49 U.S.C. § 303. Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303, is virtually identical to Section 18(a) of the Federal-Aid Highway Act of 1978, 23 U.S.C. § 138; the two statutes are referred to collectively as "Section 4(f)." Section 4(f) provides as follows: The Secretary may approve a transportation program or project requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if — (1) there is no prudent and feasible alternative to using that land; (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use. 49 U.S.C. § 303(c).5 CARE/National Trust specifically allege that the defendants' conclusion that Section 4(f) does not apply to the I-210 project because the highway would not have a significant adverse impact so as to constitute a "use" of any historic resources within the meaning of the statute and that there is no feasible or prudent alternative to the proposed elevated I-210 connector along the west side of the Mobile River along Water Street is unreasonable, capricious, an abuse of discretion and otherwise not in accordance with law. Additionally, they allege that the defendants failed to comprehensively and thoroughly provide planning to minimize the adverse impact to historic buildings and sites in Mobile resulting from the I-210 project and failed to prepare and circulate for public comment an adequate preliminary and final Section 4(f) statement, in violation of 23 C.F.R. § 771.135.6 In contrast to NEPA, which is essentially procedural, the mandate in Section 4(f) is substantive. Under NEPA, the decisionmaker need not elevate environmental concerns over any other factor; only a consideration of alternatives that would avoid or minimize harm [17 ELR 20470] to protected sites is required. "Section 4(f) requires that parklands and historic sites be given paramount importance when evaluating a project." Druid Hills, supra, at 713 n. 15. On this claim, the parties' positions are clearly drawn. The FHWA determined that the provisions of Section 4(f) do not apply to the I-210 project (FAR 190; FEIS IV-19) and concluded that no alternative will use any 4(f) properties or cause indirect impacts so as to constitute a "use" (FEIS IV-19). Stated otherwise, the conclusion was that there will be neither actual nor constructive use of Section 4(f) properties. The defendants contend that the plaintiffs/intervenor must show by a preponderance of the evidence that the impact of the proposed route would substantially impair the value of historic sites in order to establish constructive "use" of such properties within the meaning of Section 4(f). CARE/National Trust argue that Section 4(f) protect against indirect harm, as well as the direct physical taking of land and that indirect effects may constitute a "constructive use" of the site, making operative the protective provisions of Section 4(f). Additionally, it is argued that any use, regardless of its degree, involves the protection of the statute; and, that only in cases involving indirect harm to the protected site is the decisionmaker allowed to inquire into the degree of harm or the relationship between the type of harm and the type of site protected; that when the use is a direct physical harm, no such threshold inquiry is allowed. The plaintiffs/intervenor contend that they have the burden of alleging facts which, if taken as true, show that the contemplated project will "use" in some significant way parkland or historic sites. Under this standard, the court need determine only whether the proposed project may constitute a "use," constructive or actual, of the protected sites. In support to their position, CARE/National Trust contend that the recent Fifth Circuit decision in Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d 423 [15 ELR 20967] (5th Cir. 1985), a case in which that Circuit applied the constructive use doctrine, should be followed. The Fifth Circuit acknowledged the constructive use doctrine in Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 85 [6 ELR 20710] (5th Cir. 1976), a case that is binding precedent in this Circuit. See Bonner v. City of Prichard, 611 F.2d 1206 (11th Cir. 1981). In the case at bar, however, the court need not decide whether the Citizen Advocates for Responsible Expansion, Inc. (I-CARE) case was properly decided. The courts generally have applied the constructive use doctrine in cases involving Section 4(f) properties threatened by indirect harm. Seven other constructive use cases are cited in the I-CARE opinion. See 770 F.2d at 441, f.n. 23, citing Monroe County Conservation Council, Inc. v. Adams, 566 F.2d 419, 424 [8 ELR 20077] (2d Cir. 1977); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 362 F. Supp. 627, 639 [3 ELR 20709] (D. Vt. 1973, aff'd, 508 F.2d 927 [5 ELR 20068] (2d Cir. 1974)); Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 85 [6 ELR 20710] (5th Cir. 1976); Adler v. Lewis, 675 F.2d 1085, 1092 [12 ELR 20674] (9th Cir. 1982); Stop H-3 Association v. Coleman, 533 F.2d 434, 439 [6 ELR 20424] (9th Cir. 1976); Brooks v. Volpe, 460 F.2d 1193, 1194 [2 ELR 20139] (9th Cir. 1972); Sierra Club v. United States Department of Transportation, 753 F.2d 120, 130 (D.C. Cir. 1985). On the evidence in the record, the court finds by a preponderance of the evidence that the proposed I-210 connector will have a significant and substantial adverse impact on the historic and archaeological sites along the Water Street alternative which would substantially impair the historic significance, enjoyment and value of those properties. The court concludes that the I-210 project would constructively "use" these historic properties and that the defendants' determination that there will be no such "use" and therefore that there is no Section 4(f) involvement is arbitrary and not supported by the record. It is undisputed that construction of the elevated I-210 connector will be a major highway building project (F.A.R. CC). The I-210 connector is proposed to fulfill several specific transportation needs within the Mobile Urban Area. Future traffic projections estimate that the I-210 connector could carry from 24,000 to 65,000 vehicles per day in future years (FEIS, I-3). It is contradictory for the defendants to recognize that a highway project of such magnitude (labor, materials and money) is necessary to help relieve future traffic problems, but to state conversely that there will be no significant impact on the adjacent Section 4(f) properties resulting from the construction and future operation of the highway. The United States Department of the Interior (FAR 159), the Alabama State Historic Preservation Officer (FAR 196), and the Advisory Council on Historic Preservation (FAR, Document T, p. 107a) all separately concluded that the project would adversely affect the historic attributes of the protected sites. One of the defendants' own consultants — Rummel, Klepper and Kahl — confirmed as late as July, 1983, "that the project will have an adverse effect on the historic/archeological resources in the project corridor" (FAR 236, p. 50a). Even Greiner Engineering noted that a Blakely Island route would avoid "direct historic, visual, esthetic or development impacts on downtown Mobile" (SAR 811, p. 297a). Although the defendants admit that the highway will be highly visible and that the facility will have a negative impact in areas where unobstructed views are important, and that the highest likelihood of visual impact will be in downtown Mobile in the Water Street area, the visual impacts are not considered significant enough to include in a Section 4(f) report (FEIS V-58, 59). For reasons detailed in the FEIS, the defendants concluded that the waterfront is already separated from the central business district and "that the waterfront area adjacent to downtown Mobile is of an industrial/commercial nature and is aesthetically lacking," Id.; therefore, the I-210 connector "would have minor impact on the visual aesthetics in this area." Id. Simply stating that the visual impacts are minimized by building I-210 along existing developed transportation corridors does not satisfy the high standards of Section 4(f). Nor is it satisfactory to propose "architectural treatment" of the massive concrete highway piers to make them "as aesthetically pleasing as is feasible and practicable" (PCR, p. VI-11). The elevated highway will rise at least 17 feet above the ground at its lowest point, but the roadbed, guardrails, lighting standards and signs could create a visual intrusion in excess of 40 feet in height, standing only 43-50 feet from the City Hall (FAR Document T, p. 25). Future noise predictions were made on 27 measured sites in the preferred alternative corridor. Traffic noise impacts occur when the predicted traffic noise levels approach or exceed the Design Noise Level (the noise level recommended by the FHWA), or when the predicted noise levels substantially exceed the existing noise levels (FEIS, IV-35). The criteria used to calculate the noise impact at a given site depend on three variables: the existing noise level, the projected future noise level, and the Design Noise Level (70d BCA). Id. Four noise sites are located in the southern corridor: Fort Conde Village (NS-1), Government Street Park (NS-2), City Hall (NS-3) and the Riverview Plaza (NS-23). The defendants concede that these areas will be impacted by the highway noise, as well as the "historic YMCA" (FEIS, IV-41). All of the four possible alternative highway alignments along the Water Street route will result in noise levels above the measured noise levels and the Design Noise Level (See Appendix A, Table IV-13 [17 ELR 20473]). These four areas will be impacted as follows:
In the middle corridor, the G.M.&O. Railroad Depot (NS-4), just north of Beauregard Street, is predicted to "experience high noise levels"; as much as 80 dB(A) and 11 dB(A) above the measured levels (FEIS, IV-41, 42). The impact on this historic site must be addressed in a Section 4(f) report and it was not, even though the noise level is higher at this site than at any other site in the corridor. While their noise prediction models (see FEIS, IV-35) reveal significant noise impacts, the defendants concede that harm from high noise levels cannot be mitigated (Defendants' brief, p. 87; FEIS IV-44). The types of noise mitigation measures analyzed included (a) decrease of truck traffic through restrictions, (b) construction of noise walls or berms, and (c) implementation of zoning compatible [17 ELR 20471] with highway noise on undeveloped lands. Decreasing truck traffic was considered to be unrealistic and implementation of zoning is not applicable; leaving only one other measure — construction of noise walls. This measure, however, cannot be implemented at the Fort Conde site because of the intricate ramp system to be constructed there, and cannot be implemented at the City Hall site because of the adverse visual effect that would result (FEIS, IV-44). Noise abatement in these areas is considered "unlikely." Id. No noise mitigation at the G.M.&O. Railroad Depot is proposed because the defendants considered it not reasonable or feasible since the G.M.&O. is "destined to receive high noise levels regardless of alternative design or placement." Id. Little information is contained in the FEIS addressing construction noise and what is contained in the FEIS does not satisfy the requirements of Section 4(f). These impacts should be properly dealt with when the defendants prepare their Section 4(f) report. Any harm from construction vibration is disclaimed by the defendants in the Preliminary Case Report (PCR, IV-6, 7). Construction of slip ramps will occur, however, within 43 feet of the Mobile City Hall (FAR, Doc. T, p. 26, PCR p. IV-12, Table IV-1). Pile driving exceeds the "threshold of architectural damage" for distances up to 50 feet (PCR, IV-6 and -7). The defendants do not address this problem, stating that "none of the alternatives are located within 50 feet of a historic structure." Id. The FHWA and ADH acknowledge that there is a significant possibility that the proposed project will use "unique" archeological sites along Water Street that have been determined eligible for the National Register (see PCR, p. II-9, IV-11, VI-2; Appendix, Vol. III, p. 310a-312a). Under the 4(f) standards, any decision that no alternative would physically use protected sites is erroneous. Clearly, the preferred I-210 alternative will be built in this area containing archeological remains. It is the "use" of a park or historic site which triggers the substantive requirements of Section 4(f). Based on the evidence in the record establishing that the proposed I-210 project would have a significant impact on protected sites, the defendants' decision not to prepare a Section 4(f) report because there would not be a significant impact was arbitrary and capricious. There is not sufficient evidence in the record to enable the court to make an exhaustive list of the Section 4(f) properties which will be significantly and substantially affected. The court concludes, however, that there is a "use" of at least the following sites protected by Section 4(f): the Mobile City Hall; the G.M.&O. Railroad Terminal; the Water Street Archeological Sites; and the Government Street Park. The plaintiffs/intervenor are entitled to summary judgment on this claim. The court makes no finding relative to the reasonableness or prudence of alternative routes. The alternative issue is not ripe for decision at this time. It is not for this court to decide what alternative, if any, should be adopted. This court cannot substitute its judgment for the Secretary's as regards the location of the highway. The court concludes that the determination that the I-210 connector would have no significant impact on Section 4(f) property was wrong (under the applicable standard of review) and because of that conclusion a failure to comply with Section 4(f) was also wrong. Count Three alleges that the continuing, comprehensive and cooperative planning process (the 3-C's process) of the Federal Aid Highway Act required by 23 U.S.C. § 134 has been substantially lacking in the development of the I-210 project. Under 23 U.S.C. § 134, the Secretary of Transportation cannot approve for federal funding any state or local highway project for an urban area (more than 50,000 population) unless she determines "that such projects are based on a continuing comprehensive transportation planning process carried on cooperatively by states and local communities in conformance with the objectives stated in this section." Those objectives include "the development of transportation plans and programs which are formulated on the basis of transportation needs with due consideration to comprehensive long-range land use plans, development objectives, and overall social, economic, environmental, system performance, and energy conservation goals and objectives, and with due consideration to their probable effect on" future development. The planning process must "consider all modes of transportation." Transportation planning is implemented through various, overlapping, local and regional agencies, whose powers are governed by state law, in some instances, and by federal statutes and regulations in others. The statute contemplates a "planning process," not a particular "plan." D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1240 [1 ELR 20572] (D.C. Cir. 1972). Each urban area has a "metropolitan planning organization" (MPO), which is prescribed by federal law and is responsible, together with the State, for carrying out and certifying compliance with the provisions of Section 134. 23 C.F.R. § 450.104(3) (1985). MPO members include representatives of local city governments and the AHD. In Alabama, MPO's are an arm of regional agencies, which carry out the mandate of the 3-C's process under their state law statutory authority. Ala. Code § 11-85-56 (1975). The regional agency in the south Alabama area is the South Alabama Regional Planning Commission (SARPC), which through the MPO produces a Mobile Area Transportation Study Plan (MATS Plan). The 3-C's process presumes that all levels of government in an urban area — including the Mobile City Planning Commission which is authorized to adopt a Master Street Plan under Ala. Code § 11-52-8 (1975) — will cooperate in a coordinated approach to planning transportation systems. D.C. Federation of Civic Associations, 459 F.2d at 1240. Section 450.114 sets forth a certification process to assure conformity with the requirements of 23 U.S.C. § 134. Since 1968, the Mobile Master Street Plan has shown a highway link between I-65 and I-10 located on the east side of the Mobile River, down Blakely Island. The MATS Plan shows a limited access expressway along Water Street and has been inconsistent with the City's plan since 1971. For the last three years the AHD has "conditionally" certified the 3-C's process. Without certification, federal funding is terminated. CARE/National Trust contend that the conditional certification is a violation of the 3-C's process and that the MATS Plan does not take precedence over the City plan. In February, 1986, the Mobile City Council adopted a resolution expressing support for the I-210 project as proposed by the AHD, and requested the Mobile City Planning Commission to conform their plan to the MATS Plan. The defendants argue that this action by the Mobile City Council as regards plan inconsistency renders the planning contentions (the 3-C claim) MOOT. The court is of the opinion that the absence of an agreed upon plan for the I-210 does not mean that the statute has not been complied with. To hold otherwise would mean that a city has the right to "veto" the construction of interstate highways within its city limits. The plaintiffs/intervenor have not shown that they are entitled to relief on this claim. Count Four alleges a violation of Section 128 of the Federal Aid Highway Act and DOT regulations implementing that section. The public hearings section allegedly violated is codified in 23 U.S.C. § 128, which provides in pertinent part: (a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. (b) When hearings have been held under subsection (a), the State highway department shall submit a copy of the transcript of said hearing to the Secretary, together with the certification and report. CARE/National Trust specifically allege that the AHD has not held a public hearing at which the proposed I-210 project was adequately considered and that no public meeting was held at which alternative locations have been comprehensively considered. CARE/National Trust have not moved for summary judgment on this claim; the defendants have so moved. The contentions in the complaint are without merit. It is undisputed that during October and early November, 1982, the AHD provided notice to the public and interested parties that it would conduct two corridor public hearings concerning the I-210 project. The first hearing was held on November 15, 1982, at 7:00 P.M. in the Prichard Municipal Auditorium in Prichard, Alabama. The [17 ELR 20472] second hearing was held on November 16, 1982, at 7:00 P.M. in the Mobile Municipal Auditorium, Mobile, Alabama. Additionally, AHD scheduled informal sessions at both locations from 3:00 P.M. to 5:00 P.M. prior to the formal corridor public hearings (FAR 139, 961, 974, 982, 151, 155; SAR 936, 1043, 1157). In their brief, the plaintiffs/intervenor contend that the defendants appear to have suppressed evidence that would corroborate the concerns expressed about serious and damaging impacts on downtown Mobile. The evidence in question is a DOT report prepared in December, 1980, at the direction of Congress and filed as an Addendum to the final EIS (FAR, Document U, pp. 175a-288a). The report details the detrimental impacts that elevated expressways have had on numerous American cities, and the report recommends mitigation efforts. CARE/National Trust argue that the report should have been made available when public comment was solicited on the draft EIS at the public hearings, and that the defendants should explain why the I-210 highway will not have a similar negative impact on Mobile. The complaint has never been amended to include this particular allegation under the public hearing claim. To the extent that the DOT report is part and parcel of the Section 4(f) claim, relief has already been granted. The defendants are entitled to summary judgment on the public hearing claim. Count Five alleges a violation of the DOT regulations governing traffic and construction noise related to federal highway projects by approving the proposed expansion of the elevated I-210 connector. 23 C.F.C. part 772, promulgated pursuant to 23 U.S.C. §§ 109(h) and (i) and 315, 42 U.S.C. §§ 4331-32, and 49 C.F.R. § 1.48(b). CARE/National Trust specifically allege that the defendants (1) failed to analyze and incorporate a design alternative that would result in substantially lower noise levels; (2) failed to adequately determine and analyze expected traffic and construction noise impacts; (3) failed to prepare an adequate noise study report; (4) failed to incorporate adequate noise abatement measures; and (5) failed to qualify for and obtain an exemption from the requirement of achieving design noise levels for the areas near the planned expansion. A full explanation of the methodology used to assess traffic and construction noise impacts by alternatives and by corridor segments is included in the FEIS. Also, the FEIS summarizes the technical findings of the noise study reports conducted for the I-210 project (FAR U, FEIS, IV-35 through 44; FAR F and M Noise Study Reports). Twenty-seven (27) sites within the study corridor are predicted to be sensitive to noise. Accordingly, the FEIS discusses possible approaches to mitigate/abate traffic and construction noise impacts (FAR U, FEIS, IV-44 through 47). The defendants are attempting to develop workable mitigation measures, but candidly admit that little can be done to mitigate noise in certain historic areas (see Section 4(f) discussion supra). The defendants have complied with the procedures for abatement of highway traffic and construction noise; there is no evidence that the noise study reports are technically deficient. To the extent that the noise impacts have an adverse effect on Section 4(f) properties, relief has been granted on that claim. The defendants are entitled to summary judgment on this claim. Count Six alleges a violation of the National Historic Preservation Act (NHPA). 16 U.S.C. § 470(f). CARE/National Trust specifically allege that the defendants failed to consider comments of the Advisory Council on Historic Preservation in the course of the I-210 project, and failed to meaningfully respond as required by Section 106 of the NHPA. Furthermore, the defendants failed to reach a Memorandum of Agreement for mitigation of adverse impact and otherwise failed to meaningfully consider and respond to those comments. The evidence shows that the defendants did take into consideration the Advisory Council's comments and responded — they disagreed with those comments. This complies with the statutory requirements, the defendants are not obligated to accept the Advisory Council's comments. The defendants are entitled to summary judgment on this claim. VII. The National Landmark Claim The seventh claim (Count Two of the intervenor's complaint, Doc. #16) alleges a violation of Section 110(f) of the National Historic Preservation Act, 16 U.S.C. § 470h-2(f). Section 110(f) of the NHPA mandates that federal agencies have affirmative responsibilities to protect National Historic Landmarks7 to the "maximum extent possible." CARE/National Trust specifically allege that the proposed I-210 connector would have a significant adverse impact on the Mobile City Hall, a National Historic Landmark, and that the defendants have failed to undertake, to the maximum extent possible, such planning and actions as may be necessary to minimize harm to the building. Section 110(f) provides as follows: Prior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark and shall afford the Advisory Council a reasonable opportunity to comment on the undertaking. In 1980, Section 110(f) was enacted as part of a comprehensive set of amendments to the NHPA of 1966, Pub. L. No. 96-515, 94 Stat. 2987 (1980). The amendment significantly expanded the statutory responsibilities of federal agencies for the reservation of historic properties. The legislative history of the amendment explicitly states that § 110(f) "establishes a higher standard of care to be exercised by federal agencies" than the standard under § 106 of NHPA (see NHPA claim, supra), which applies to all sites listed in or eligible for the National Register. H. Rep. No. 1457, 96 Cong., 2d Sess. 52 (1980), reprinted in 1980 U.S. Code Cong. & Admin. News 6378, 6401. Whereas § 106 requires federal agencies to "take into account" the effect of their actions relative to historic properties and to afford the Advisory Council an opportunity to comment in advance on any proposed action, Section 110(f) requires more by setting a higher standard. The legislative history states that Section 110(f) "does not supersede § 106, but complements it by setting a higher standard for agency planning in relationship to landmarks before the agency brings the matter to the[Advisory] Council." H. Rep. No. 1457, supra, 1980 U.S. Code Cong. & Admin. News at 6401. The Mobile City Hall, built in 1858, is the City's only National Historic Landmark, designated in 1973. This Italianate building, recently rehabilitated, was originally constructed to include a market on the ground floor, and was used as an armory during the Civil War. It is the oldest continually operating City Hall building in the nation. City Hall is subject to the protections of Section 110(f). Compliance with Section 106 does not necessarily satisfy the mandate of Section 110(f) with its higher standard of care. The defendants did not respond to the Advisory Council's findings that "the elevated expressway could very well tip the scales toward demolition, eliminating otherwise viable preservation alternatives" (FAR Document T, p. 27). Having previously concluded that there is a "use" of City Hall within the meaning of Section 4(f), the court is of the opinion that compliance with Section 4(f) will moot the Section 110(f) claim. A decision on the Section 110(f) claim as an independent claim is therefore not necessary in this case. VIII. Adequacy of the Administrative Record CARE/National Trust have moved for summary judgment on the ground that the administrative record filed in this court is not adequate for judicial review under 5 U.S.C. § 706 and request that the matter be remanded to the Department of Transportation to prepare an adequate record. They specifically allege that the mammoth record filed in this court is not the one on which the Government actually based its decision to build the elevated I-210 expressway. Rather it is a compilation of materials — many of which were not even in the Government's custody at the time the decision to build the I-210 expressway was made — that was produced in preparation for this litigation under the supervision of Government [17 ELR 20473] attorneys and constitutes "post hoc rationalizations" instead of a true record. The court finds that the plaintiffs/intervenor have not shown the record to be inadequate for judicial review. The defendants are entitled to summary judgment on this claim. Having found that the plaintiffs/intervenor are entitled to summary judgment on the Section 4(f) claim their motion for summary judgment is GRANTED on that claim and otherwise DENIED. The defendants are entitled to summary judgment on all other claims except for the Section 110(f) claim, which the court has concluded it need not decide. The plaintiffs/intervenor are entitled to injunctive relief on the Section 4(f) claim. The court will remand the case to the appropriate officials and require compliance with the statute in question. CARE/National Trust are entitled to an order enjoining the defendants from proceeding further with the I-210 project until the statute and applicable regulations are complied with, and the court will by separate document enter final judgment accordingly. This matter having come before the court on cross-motions for summary judgment, and the court having considered the briefs, record, and exhibits, and having heard oral argument from counsel for the parties on their motions, it is ORDERED, ADJUDGED and DECREED as follows: 1. The proposed I-210 project will significantly and substantially impair and therefore constructively use within the meaning of Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303, the following sites protected by Section 4(f): the Mobile City Hall, the G.M.&O. Railroad Terminal, the Water Street Archeological Sites, and the Government Street Park. 2. The defendants have failed to comply with Section 4(f) of the Department of Transportation Act because the defendants found that the proposed project would not "use" Section 4(f) properties. 3. This matter is REMANDED to the United States Department of Transportation for compliance with the statutory requirements of 49 U.S.C. § 303 and all regulations promulgated thereunder with reference to the following described protected sites: the Mobile City Hall, the G.M.&O. Railroad Terminal, the Water Street Archeological Sites, and the Government Street Park. 4. The defendants and their successors, agents, employees, attorneys and those persons otherwise acting in concert or participation with them who receive actual notice of this order are ENJOINED from proceeding with the acquisition of rights-of-way or construction of the proposed I-210 project unless and until there has been compliance with the statutory requirements of 49 U.S.C. § 303, and all regulations promulgated thereunder, with reference to the above-named protected sites. 5. All other relief requested by the plaintiffs is DENIED. The plaintiffs/intervenor are entitled to recover of the defendants their taxable costs.
2. In two more narrow circumstances, an administrative decision also may be set aside: (1) if the action is not supported by substantial evidence; or (2) if the action was unwarranted by the facts. These two circumstances are explained by the Supreme Court in the Overton decision and neither situation exists in this case. 3. Level of service calculations describe the operating conditions of an intersection during peak periods. The calculation is a function of the configuration of the intersection and the traffic volume using the intersection. Once calculations are completed, a letter rating, ranging from A (best) to F (worst), is assigned to the intersection. LOS D is acceptable in an urban environment. LOS E means that the intersection is operating at or near capacity while LOS F represents forced flow operation. See, Highway Capacity Manual, Highway Research Board, Special Report 87, at 111-113, 130-31 (National Academy of Science, National Research Council 1965). Druid Hills, 772 F.2d at 710 n. 11. 4. Traffic projections for the spur alternative were developed from the AHD's computer runs of the MATS I-210 project network for the year 2005. The daily traffic assignments were converted to design hour volumes by application of project approved peak hour percent of daily flow, directional splits and truck percentages. The AHD analysis showed that for the spur alternative, the projected two-way volume at the critical point on Water Street would be in excess of 46,500 vehicles per day. In view of that volume, the spur alternative, in order to have a level of service "D" (minimally acceptable), would require twelve through lanes (plus turn lanes), not a reasonable or practical design. Furthermore, the maximum number of vehicles that an eight-lane facility can carry at level of service "D" is 36,260; thus, an eight lane facility carrying in excess of 46,500 vehicles per day would be unacceptably congested. (F.A.R. K, Traffic Data for Spur Alternative and Q, Spur Alternative Analyses). 5. 23 U.S.C. § 138 as follows: [T]he Secretary [of Transportation] shall not approve any program or project which requires the use of any publicly owned land from a public park, recreational 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 any land from an historic site of national, State or local significance as so determined by such officials unless (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 such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use. 6. If Section 4(f) is determined to be applicable, the regulations require preparation of a draft Section 4(f) evaluation, circulation of the report, receipt of comments, consideration of comments, revision of the report in response to comments, preparation of a final Section 4(f) evaluation, and review and approval of same. 23 C.F.R. § 771.135. 7. The National Historic Landmark program was authorized by Congress in order to recognize "properties of exceptional value to the nation as a whole rather than to a particular State or locality." 36 C.F.R. § 65.2(a); see 16 U.S.C. § 470a(a). In contrast to properties listed on the National Register of Historic Places, which are nominated by state historic preservation officers and federal agencies, 36 C.F.R. §§ 60.5-60.9, National Historic Landmarks are designated by the Secretary of the Interior based upon the Department's own research. Each property considered for National Historic Landmark status must be approved and recommended by the National Park System Advisory Board. 36 C.F.R. § 65.5(d)-(e). a All noise levels expressed in L[10] dB(A) b Noise levels recommended by Federal Highway Administration Program Manual 7-7-3. c See Exhibits II-1 and II-2 for location of specific alternative alignments. Alternative A is the Preferred Alternative. The Preferred Alternative can use S-1, S-4 (S), or S-6, and S-5. d (F)=Fill Section, (S)=Structure Section a All noise levels expressed in L[10] dB(A) b Noise levels recommended by Federal Highway Administration Program Manual 7-7-3. c See Exhibit II-5 for location of specific alternative alignments. d (F)=Fill Section, (S)=Structure Section a All noise levels expressed in L[10] dB(A) b Noise levels recommended by Federal Highway Administration Program Manual 7-7-3. c See Exhibit II-7 for location of specific alternative alignments. 17 ELR 20466 | Environmental Law Reporter | copyright © 1987 | All rights reserved |