For inclusion in the official record of the Petoskey Area Improvement Project

Jeff Saxby, P.E., Project Manager
Keri Settle, Project Manager
William Land, Spokesman
Michigan Department of Transportation
Project Planning Division
Van Wagoner Bldg.
425 W. Ottawa St.
PO Box 30050
Lansing, MI 48909

RE: The Study of the “Smart Roads: Petoskey” alternative in the Supplemental DEIS for the Petoskey Area Improvement Project

Ms. Settle and Messrs. Saxby and Land:

We are writing on behalf of the Michigan Land Use Institute and the Environmental Law & Policy Center to express our continuing concern that the Michigan Department of Transportation is not studying all reasonable alternatives as part of the Supplemental Draft Environmental Impact Statement for the Petoskey Area Improvement Project. In particular, MDOT representatives continue to state that the SDEIS will not include an analysis of the “Smart Roads: Petoskey” alternative. This has become a pressing matter because MDOT plans to conclude the SDEIS this summer.

We last raised this concern in a December 20, 2000 letter to MDOT, but the department has not responded. We are writing again today because, during a joint township meeting in the Petoskey area on April 11, 2001, Mr. Saxby stated that the department will not study “Smart Roads: Petoskey” as an alternative in the SDEIS. Instead, according to Mr. Saxby, MDOT already considered a different local road option in the SDEIS and dismissed it because it performed poorly.

MDOT’s refusal to fully explore reasonable alternatives to the proposed Petoskey Bypass alignments is contrary to the dictates of the National Environmental Policy Act, 42 U.S.C. Sections 4321-4347. This law requires that as part of the SDEIS for Petoskey, MDOT study all reasonable alternatives, including the “Smart Roads: Petoskey” alternative developed by the Institute and New Alternatives, Inc., with the substantial participation of local officials and residents of Emmet County. Moreover, MDOT’s position ignores the fact that local governments have stated a preference for studying alternatives such as “Smart Roads: Petoskey,” and a federal lawmaker has ensured that MDOT has sufficient funding to evaluate and implement such local road options. MDOT’s unwillingness to consider locally supported, viable alternatives threatens to stall an already lengthy process to relieve Petoskey-area traffic congestion.

INSTITUTE HAS PROVIDED MDOT WITH DETAILED INFORMATION ON “SMART ROADS: PETOSKEY”
Throughout the process of developing “Smart Roads: Petoskey,” the Institute kept MDOT well informed of our efforts with New Alternatives and the public so as to allow MDOT the earliest and fullest possible opportunity to review and study information concerning this alternative. In early 1999, representatives of the Institute and New Alternatives arranged to meet with MDOT’s then-Petoskey project manager Dave Geiger, and Mr. Saxby, the project engineer. In that meeting, we explained our Petoskey project work plan and goals and requested MDOT’s assistance in providing transportation data necessary to develop our alternative. In addition, the Institute pledged to keep MDOT informed of our progress.

Since then, we have provided MDOT with our full reports and report summaries each time the Institute and New Alternatives completed a phase of the “Smart Roads: Petoskey” project. Our project timeline to date:

• February 1999 — Phase One — Initial Assessment completed.
• August 1999 — Phase Two — Specific Recommendations completed.
• May 2000 — Phase Three — Comparison of Bypass and “Smart Roads: Petoskey” completed. (Final report)

In June 2000, we provided MDOT with copies of the completed “Smart Roads: Petoskey” alternative (full report and report summary) and specifically requested that MDOT fully evaluate this alternative as a part of the ongoing SDEIS

APRIL 11 PUBLIC MEETING
Despite its long-standing awareness of “Smart Roads: Petoskey,” MDOT continues to refuse to fully study this alternative. Most recently, on April 11, Bear Creek and Resort townships held a joint meeting to discuss the Petoskey bypass and alternatives to the bypass. At the meeting, both townships asked MDOT whether it was studying “Smart Roads: Petoskey.” Mr. Saxby said the department has not studied “Smart Roads: Petoskey” because it does not meet the project’s goal of building a state trunkline highway. According to Mr. Saxby, MDOT has studied a different alternative that relies on improvements to local roads. However, Mr. Saxby refused to identify for local officials and assembled citizens exactly which local roads MDOT studied. Mr. Saxby asserted that he had discussed the matter with the Federal Highway Administration and, with respect to considering alternatives, said, “ We think we’re covered.”

Mr. Saxby’s response disappointed many local officials and residents gathered at the April 11 joint township meeting. A member of the Bear Creek Township board expressed “great concern” that MDOT is pressing forward with a four-lane bypass through Bear Creek Township, while ignoring the two-lane “Smart Roads” approach. The board member noted that the agreement reached in 1998 among Bear Creek and Resort townships and the city of Petoskey explicitly calls for a two-lane road and a land conservation plan. The Bear Creek board member went on to say that MDOT should adopt the “best parts” of “Smart Roads: Petoskey,” including the two-lane profile, the improvements to U.S. 31, and the land protection program.

Two Resort Township board members also asked why MDOT has not fully considered “Smart Roads: Petoskey.” In response to these questions, Mr. Saxby said that the Emmet County Road Commission, not MDOT, is the appropriate agency to evaluate local road options such as “Smart Roads: Petoskey.” Mr. Saxby also said that MDOT’s ability to protect land along a bypass route is limited to buying access rights. Mr. Saxby expressed the opinion that other land protection efforts are beyond MDOT’s reach and, thus, cannot be studied as part of the Petoskey Bypass SDEIS.

Several meeting attendees also questioned why MDOT was ignoring “Smart Roads: Petoskey.” Some made the point that several resolutions of support for “Smart Roads” have been passed locally, including by Resort Township, the city of Harbor Springs, and several homeowner groups.

STRONG PUBLIC INTEREST IN THE STUDY OF “SMART ROADS: PETOSKEY”
Unquestionably, the public has a strong interest in the “Smart Roads: Petoskey” alternative and a full and fair study of it by MDOT. This interest has been clearly demonstrated by the number of local groups and governments that have passed resolutions of support for the “Smart Roads: Petoskey” alternative and a full evaluation of it by MDOT, including the Wequetonsing Association on August 14, 2000, the L’Arbre Croche Club on Sept. 1, 2000, the Menonaqua Beach Cottage Owners Assoc. on Sept. 2, 2000, the city of Harbor Springs on Sept. 18, 2000, and Resort Township on October 3, 2000. Dozens of Emmet County households also have expressed their interest in “Smart Roads: Petoskey” by joining the Institute during the development of this alternative. Clearly, the community’s interests and the goals of NEPA are best served if MDOT conducts a full and fair study of what might prove to be a superior alternative and if MDOT presents the public with a comparative analysis of the environmental impacts of all of the reasonable alternatives.

LAW REQUIRES FULL STUDY OF “SMART ROADS: PETOSKEY”
MDOT’s position, as reflected most recently in Mr. Saxby’s statements, is contrary to the law.

First, the federal legislation authorizing funds for the study of Petoskey area road improvements explicitly allows for “upgrad[ing] existing local roads.” This directly contradicts MDOT’s assertion that it cannot study an alternative like “Smart Roads: Petoskey” because the goal of the Petoskey Area Improvement Project is to build a state trunkline highway.

Second, NEPA and its regulations explicitly require that agencies “rigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. Section 1502.14(a); see 42 U.S.C. Section 4332(2); 23 C.F.R. Sections 771.123(c) (“The draft EIS shall evaluate all reasonable alternatives to the action ….”) and 771.125(a)(1); Muckleshoot Indian Tribe v. U. S. Forest Service, 177 F.3d 800, 813-14 (9th Cir. 1999) (“A viable but unexamined alternative renders [the] environmental impact statement inadequate.”). This requirement expressly includes reasonable alternatives that are not within the jurisdiction of the lead agency, as well as alternatives that may partially or completely meet the project’s goal. 40 C.F.R. Section 1502.14(c); Muckleshoot Indian Tribe, 177 F.3d at 814; City of New York v. U.S. Department of Transportation, 715 F.2d 732, 742 (2d Cir. 1983).

Therefore, it is legally insufficient for MDOT to maintain, as it did on April 11, that the department is essentially the wrong agency to study “Smart Roads: Petoskey,” and that the local road commission should take the initiative on its own if it so chooses. MDOT can use the project funding to hire consultants if it feels that it is not the best agency to conduct local roads studies for Petoskey. This is common practice for MDOT, which has hired private consultants to study the potential environmental and historical impacts of the proposed Petoskey Bypass routes. Similarly, the law does not support Mr. Saxby’s repeated statements at the April 11 meeting that MDOT cannot study the kind of land protection ideas that the townships have raised for years and specifically called for in the 1998 inter-governmental agreement. Mr. Saxby made a similar statement regarding the land protection package outlined in “Smart Roads: Petoskey.” While it may be true that MDOT’s staff cannot perform a full evaluation of land protection options, the department has the legal responsibility to see that the work is done, including contracting with land protection experts.

Finally, MDOT lacks the grounds to dismiss an alternative that it has not fully studied. The Institute worked with the transportation planning firm New Alternatives, Inc. to develop the “Smart Roads: Petoskey” alternative, using its expertise and extensive input of Emmet County residents. The Institute, ELPC, and New Alternatives are confident that the “Smart Roads: Petoskey” alternative is reasonable and feasible. “Smart Roads: Petoskey” would provide less expensive congestion relief much sooner, and with fewer adverse environmental effects, than the proposed bypass. New Alternatives’ evaluation of the alternatives under consideration found that “Smart Roads: Petoskey” would ease congestion in the Petoskey area and would cost about one-tenth as much as the Petoskey bypass proposal. In addition, “Smart Roads: Petoskey” would impact far fewer acres of wetlands and agricultural and historic lands, could open in a just a few years rather than a decade, and would better respect the character of the scenic and historic countryside in Resort and Bear Creek townships.

DELAYING FULL CONSIDERATION OF “SMART ROADS: PETOSKEY” UNTIL THE FEIS FRUSTRATES THE PURPOSE OF NEPA
In a December 1, 2000, phone conversation between MDOT and the Institute, MDOT stated that it would give minimal attention to “Smart Roads: Petoskey” in the SDEIS and that the department might, or might not, conduct some analysis in the FEIS. The Institute and ELPC responded with a December 20, 2000 letter explaining our belief that it is not appropriate to wait until the FEIS to consider a reasonable alternative.

A decision to delay consideration and evaluation of “Smart Roads: Petoskey” until the preparation of the Final EIS would circumvent NEPA’s clear mandate that agencies share information with the public and public officials and involve them in the study of the project as early and often as possible. See, e.g., 23 C.F.R. Section 771.111. As provided in the NEPA regulations of the Council on Environmental Quality (CEQ), “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and actions are taken.” 40 C.F.R. section 1500.1(b). These regulations require that agencies “shall to the fullest extent possible … [e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment.” 40 C.F.R. Section 1500.2(d). To insure that the agency provides relevant information to the public, the regulations state that, “[t]he agency shall make every effort to disclose and discuss at appropriate points in the draft statement all major points of view on the environmental impacts of the alternatives including the proposed action.” 40 C.F.R. Section 1502.9(a).

MDOT is well aware that waiting until the FEIS to study “Smart Roads: Petoskey” and present detailed information comparing the impacts of this alternative with those of the other alternatives would stifle public involvement. Specifically, waiting until the FEIS to consider “Smart Roads: Petoskey” would prevent the public and the many local officials who have expressed an interest in this project from offering substantive comments to which MDOT must respond. The NEPA procedures set forth in the CEQ and Federal Highway Administration regulations require that after preparing a Draft EIS and before preparing the Final EIS, an agency must obtain comments of federal agencies with jurisdiction with respect to any of the environmental impacts and must request comments from appropriate state and local agencies and the public. 40 C.F.R. Section 1503.1; see 23 C.F.R. Section 771.123(g). In preparing the Final EIS, then, the agency must consider and respond to the comments received on the Draft EIS. 40 C.F.R. Section 1503.4; see 40 C.F.R. Section 1502.9(b); 23 C.F.R. Section 771.125(a).

Moreover, MDOT normally holds a public hearing after release of a DEIS or SDEIS. In contrast, MDOT does not typically hold a public hearing after releasing a Final EIS, and the NEPA regulations do not require that an agency respond to comments submitted on the FEIS. Thus, by purposely delaying the study of a reasonable alternative until the FEIS, MDOT would thwart the public involvement process and avoid any opportunity for it to optimize and modify this alternative in response to public comment. Likewise, by refusing to study and document the comparative impacts and benefits of “Smart Roads: Petoskey” in the SDEIS, MDOT would deny the federal agencies involved in this NEPA process an early opportunity to evaluate and offer comments on the impacts of this alternative.

STUDY OF “SMART ROADS: PETOSKEY” MUST BE ITERATIVE
In a regional bypass project with similarities to the Petoskey proposal, the U.S. Environmental Protection Agency (in an Aug. 10, 1999 letter regarding the Boardman River Crossing Mobility Study in Traverse City) notified MDOT that the study of alternatives in an EIS must be “iterative.” EPA also wrote that MDOT is responsible for ensuring that alternatives are “modified” and “optimized” over time. EPA’s guidance applies to the Petoskey Area Improvement Study. The iterative process called for by the EPA can occur only if all alternatives are considered during the DEIS/SDEIS phase, so that modifications and iterations of alternatives can occur during the preparation of the FEIS.

In summary, the Institute and ELPC request that MDOT comply with the dictates of the NEPA statute and regulations and immediately begin to fully evaluate the “Smart Roads: Petoskey” alternative as part of the SDEIS for the Petoskey Area Improvement Project. After 15 years of effort by MDOT to develop a bypass around Petoskey, we believe that extending the completion date for the SDEIS beyond this summer, if necessary, is prudent and will have little practical effect on the timeline for conclusion of the Petoskey Area Improvement Project.

We await your response to this letter and to the full consideration of “Smart Roads: Petoskey” in the on-going SDEIS. As always, we would be pleased to meet with you to discuss this matter in greater detail.

Sincerely,

Kelly Thayer
Michigan Land Use Institute
Transportation Project Coordinator


Ann Spillane
Environmental Law & Policy Center
Senior Attorney


cc: Hon. Bart Stupak, U.S. Congress
Hon. Walter North, Michigan Senate
Hon. Scott Shackleton, Michigan House of Reps.
Mr. Al Dika, Mayor, Harbor Springs
Mr. Bill Fedus, Supervisor, Resort Township
Mr. Gerald Fulcher, Jr., MDEQ
Mr. Mark E. Hodgkins, USFWS
Ms. Sherry Kamke, U.S. EPA
Mr. Denny Keiser, Supervisor, Bear Creek Township
Mr. James A. Kirschensteiner, FHWA
Mr. George Korthauer, city of Petoskey
Mr. Lou Lambert, MDOT
Mr. Henry Rosenfield, U.S. Army Corps of Engineers