September 27, 2001
Via Overnight Delivery
Mr. James Steele
Division Administrator
Federal Highway Administration
315 Allegan Street, Room 207
Lansing, MI 48933

RE: REQUEST FOR RECONSIDERATION OF RECORD OF DECISION:
BOARDMAN RIVER CROSSING MOBILITY STUDY
GRAND TRAVERSE COUNTY, MICHIGAN
FHWA-MI-99-01

Dear Mr. Steele:

We are writing to formally request that the Federal Highway Administration ("FHWA") reconsider its August 2001 issuance of the Record of Decision ("ROD") for the project known as the Boardman River Crossing Mobility Study, Grand Traverse County, Michigan. This request for reconsideration is submitted on behalf of the Michigan Land Use Institute, the Environmental Law and Policy Center of the Midwest, the Coalition for Sensible Growth, the Northern Michigan Environmental Action Council, and the Sierra Club - Traverse Group.

INTRODUCTION

As part of their Boardman River Crossing Mobility Study, the Michigan Department of Transportation ("MDOT") and the Grand Traverse County Road Commission ("Road Commission") failed to fully consider the potential impacts to certain Section 4(f) properties and redefined the project’s purpose and need after receiving all final concurrences, in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. MDOT and the Road Commission have only now – after release of the ROD – finally revealed the full level of public and local government opposition to the selected alternative and the full level of public support for the Smart Roads: Grand Traverse Region Alternative. Moreover, the ROD’s selected alternative is based on a faulty premise that it will be substantially cheaper to construct than the other build alternative.

The wetland mitigation strategy for the project is also highly likely to fail, according to new information obtained from the State of Michigan’s wetland regulatory department. Finally, the ROD places unwarranted restrictions in the design of the selected alternative’s bridge, and in doing so, increases the likelihood of wetlands loss.

In light of this substantial and compelling new evidence, and for each of the reasons presented in detail below, we respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

I. THE IMPACTS ON SECTION 4(f) PROPERTIES WERE NOT FULLY CONSIDERED.

Michigan’s public lakes and streams are part of a public trust that grants citizens, as beneficiaries of this trust, the paramount right to use these lakes and streams for boating, fishing, swimming and recreation. Collins v Gerhardt, 237 Mich 38, 45046, 211 NW 115 (1926). This trust cannot be surrendered, alienated, or subordinated. Illinois Central Railroad v Illinois, 146 US 387, aff’d 154 US 225 (1894). The public trust grants public access to and over all such navigable streams for the use and enjoyment of these public recreational uses, and such public uses are not subject to trespass claims asserted by riparians who own the land along and beneath the river. Moore v Sanborne, 2 Mich 520 (1853), Collins, supra.

The Boardman River is a navigable stream and subject to the public trust rights of citizens for fishing, swimming, boating, canoeing, and other recreational activities. Citizens use the Boardman River for these recreational purposes, including the stretch of river that will be crossed by the proposed Hartman-Hammond bridge. The public’s paramount right and use under the public trust doctrine constitute a legally sufficient public property recreational easement or interest protected by Section 4(f) of the Department of Transportation Act ("DOT Act"), 49 U.S.C. § 303.

Section 4(f) prohibits approval of any use of a public park, recreation area, or other recreational interest or easement, unless it has been demonstrated on the record that there is "no feasible and prudent alternative" to the use of the public recreational interest or easement. The FHWA and the Road Commission have failed to address the availability of feasible or prudent alternatives, under Section 4(f), that would not require the crossing, use, or subordination of this public trust easement in and on the Boardman River. Accordingly, the ROD approving the environmental impact statement ("EIS") and Section 4(f) review and analysis are contrary to law, 49 U.S.C. § 303 and 23 CFR 771.135.

In addition, the EIS and the ROD do not adequately address the impacts or the existence of feasible and prudent alternatives to the proposed heavy increase in traffic on the segment of Three Mile Road where it terminates at the entrance to the state of Michigan’s Traverse City State Park on East Grand Traverse Bay. The failure to discuss or adequately address the impacts from traffic congestion, noise, dust, fumes, and oil spillage from automobile and truck traffic in the middle of major recreational amenity in the Grand Traverse Region also violates Section 4(f) and 23 CFR 771.135. This is more fully discussed in II, below. For these reasons, we respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

II. THE IMPACTS ON SECTION 4(f)
STATE PARK LAND ALSO WERE NOT FULLY CONSIDERED.

The Boardman River Crossing Mobility Study and its ROD also fail to fully consider the impacts on Section 4(f) lands by narrowly defining the study area in an apparent attempt to avoid considering the project’s impact to the Traverse City State Park. Section 4(f) provides that "special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites." 49 U.S.C. Section 303(a). Section 4(f) thus states that the Secretary of Transportation: may approve a transportation program or project requiring the use … of publicly owned land of a public park, recreation area, or wildlife refuge or national, State, or local significance, or land of an historic site of national, State, or local significance … only if there is no prudent and feasible alternative to using that land; and 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) (emphasis added).

The first requirement of Section 4(f) provides that the Department of Transportation cannot build a project that uses Section 4(f) land unless there is no "prudent and feasible alternative" to using that land. "Prudent and feasible" is defined in the law as allowing for the use of parkland or other Section 4(f) property if alternative routes "involve uniquely difficult problems" or if "the cost of community disruption resulting from alternative routes [reaches] extraordinary magnitude." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 416 (1971); Druid Hills Civic Association, Inc. v. Federal Highway Administration, 772 F.2d 700, 715 (11th Cir. 1985).

The second requirement of Section 4(f) "imposes the duty to utilize all possible planning to minimize harm to parks and historic sites before the Secretary can approve a route using section 4(f) property." Druid Hills, 772 F.2d at 716. This provision of Section 4(f) "requires a simple balancing process which totals the harm caused by each alternative route to section 4(f) areas and selects the option which does the least harm. The only relevant factor in making a determination whether an alternative route minimizes harm is the quantum of harm to the park or historic site caused by the alternative." Id. at 716 (citations omitted). Under this provision, an agency conducting an EIS process is expressly prohibited from rejecting one alternative that impacts Section 4(f) resources in favor of a preferred alternative that also uses Section 4(f) property. In City of South Pasadena v. Slater, 56 F. Supp. 2d 1106, 1116 (C.D. Cal. 1999), for example, the agencies refused to consider a low-build alternative due to its impacts on Section 4(f) land. The Court stated:

The Defendants rejected [the multi-mode low-build alternative (MMLB)], in part, because it, like the 710 Freeway Project, would also use Section 4(f) resources. The MMLB will require building a new on-ramp for the 110 Freeway at Fair Oaks Boulevard. The 110 Freeway (Pasadena Freeway) is a Section 4(f) resource. The defendants argue that they may reject the MMLB because both the MMLB and the 710 Freeway Project will use Section 4(f) resources.

The defendants are incorrect. The appropriate inquiry is to consider the extent to which each alternative uses Section 4(f) resources. 56 F. Supp. 2d at 1116.

To conduct this required balancing process, the record must contain sufficient information to enable the decisionmakers to weigh the relative damage to protected lands that would result from each alternative. Druid Hills, 772 F.2d at 716-717. In Druid Hills, the Court found that the record failed to provide sufficient information from which the Section 4(f) impacts of the alternative plans could be compared. The Court remanded the case to the Secretary of Transportation to reconsider the facts and make adequate findings on the impact on Section 4(f) resources caused by the alternatives to the recommended route. The Court found:

This review should encompass an accurate assessment of the characteristics of the property that will be affected by the alternative, e.g., if the property is in a historic district, whether it has been previously impacted by commercial development and if so, to what extent. The Secretary’s review must also address the quantity of harm that will accrue to the park or historic district site and the nature of that harm, e.g., visual impact or physical taking. It will not suffice to simply state that an alternative route would affect 4(f) properties without providing some rational, documented basis for such a conclusion. Druid Hills, 772 F.2d at 718 (emphasis added).

Thus, the record must contain evidence demonstrating the characteristics of the Section 4(f) property, including whether it has already been impacted by development, and the extent of the harm that will be caused to the property by each alternative.

The northeast portion of the Boardman River Crossing Mobility Study’s project study area encompasses Three Mile Road and Four Mile Road, north to just beyond their termini with U.S. 31. The study area is drawn so narrowly, however, that the area between Three Mile and Four Mile Roads is not included, even though the distance between these roads is generally less than one mile and no other roads run parallel between them. Traverse City State Park lies between Three Mile and Four Mile roads, at their northern termini at U.S. 31. The State Park is situated only about one-eighth of a mile east of the northern end of Three Mile Road and about a half-mile west of the northern end of Four Mile Road.

The state-owned park provides a large sandy beach, picnic area, and swimming area along the east arm of Grand Traverse Bay, on Lake Michigan. It is a major attraction for local residents, as well as for tourists from throughout Michigan and across the nation who vacation in the Grand Traverse Region. The beach begins only a few dozen yards from U.S. 31.

The Road Commission contends that the current traffic volume (in excess of 20,000 vehicles per day) along the portion of Three Mile Road in the study area presently exceeds the roadway’s design capacity. Traffic along Three Mile Road is certain to increase substantially if the selected alternative is constructed. The selected alternative, as described in the EIS, would facilitate higher east-west traffic volumes along the continuous Hartman-Hammond-Three Mile Road corridor by providing a new crossing of the Boardman River and additional lanes along Hartman Road, a portion of Hammond Road, and Three Mile Road. In addition, traffic along Three Mile Road north to U.S. 31 also would increase when, in a few years, the entrance to the nearby Cherry Capital Airport is relocated from Parsons Road to South Airport Road, a short distance west of Three Mile Road. The selected alternative’s net effect would be to funnel significantly higher volumes of traffic through the Three Mile Road/U.S. 31 intersection, which, as mentioned, is about one-eighth of a mile away from the Traverse City State Park, a Section 4(f) property.

The EIS and ROD fail to take into account the impacts of inducing more traffic to travel near and past the Traverse City State Park, a Section 4(f) property. Possible impacts from the selected alternative on the state park that should be evaluated include, but are not limited to, air quality, water quality, noise, access, and recreational use effects. In light of this substantive oversight in the final EIS, for this additional reason, we respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

III. THE ROD IMPROPERLY REDEFINES THE PURPOSE AND NEED FOR THE PROJECT, WHILE THE PURPOSE AND NEED IN THE EIS REMAINS UNREASONABLY NARROW, ARBITRARY, AND FACTUALLY UNSUPPORTED

The ROD redefines the purpose and need of the Boardman River Crossing Mobility Study. Under NEPA, it is inappropriate to change the purpose and need after securing concurrence on the purpose and need from state and federal review agencies. The ROD states (p. 1): "In addition, the purpose of the project is to address the east-west surface transportation system flow constriction across the Boardman River, which will develop with the closure of the Cass Road Bridge." This is a clear departure from the purpose and need published in the draft EIS and the final EIS for the project.

In the final EIS (p. 2-1), the purpose and need is defined, in part, as: " In addition, the purpose and need of the project is to address the east-west surface transportation system flow constriction problems which have developed, and which are forecasted to increase in significance in the near future in and around Traverse City, Grand Traverse County, Michigan. While the ROD states that traffic problems "will develop," the final EIS states that traffic problems "have developed." This constitutes an improper shifting of the project’s purpose and need, leaving the review agencies and the public unable to fully participate in commenting on the desirability and effectiveness of alternatives in meeting purpose and need and unable to offer their own alternatives. For example, existing (1997) levels of service on the east-west crossings range from Level of Service "B" to Level of Service "D". If the ROD is correct, then these levels of service do not constitute traffic problems. If the final EIS is correct, then these levels of service do actually constitute traffic problems. The review agencies and the public are left to wonder.

NEPA is designed to "encourage productive and enjoyable harmony between man and his environment … [and to] prevent or eliminate damage to the environment." 42 U.S.C. § 4321. To achieve these goals, the statute requires agencies to "have available, and [to] carefully consider, detailed information concerning significant impacts" of a proposed project in the form of an EIS. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). In the EIS, agencies must "rigorously explore and objectively evaluate all reasonable alternatives" to the proposed action, including the alternative of "no action." 40 C.F.R. 1502.14(a)&(d)

These crucial requirements serve two key functions. First, "by focusing the agency’s attention on the environmental consequences of a proposed project, NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson, 490 U.S. at 349. Thus, agency decisions are more likely to be "fully informed" and "well-considered." Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1049 (2d Cir. 1985). Second, an EIS serves a vital public information function, providing the public with "environmental full disclosure" so that it "can weigh a project’s benefits against its environmental costs." Id. Consequently, a properly drafted EIS should fully inform the public of the purpose and need for the project as well as the environmental impacts of the project and its reasonable alternatives. For this reason as well, we respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

In addition, the EIS defines an unreasonably narrow, arbitrary, and factually unsupported statement of purpose and need. This results in a purpose and need and project goals that the preparers insist can be satisfied only by the proposed Hartman-Hammond Connector with Three Mile Road alternative. However, the EIS’s statement of purpose and need is contradicted by statements included within the FEIS, and the recommended alternative is no more successful than two dismissed alternatives in meeting the stated purpose and need.

Federal regulations require that an environmental impact statement "specify the underlying purpose and need" for any project that it proposes. (40 C.F.R. § 1502.13). This requirement is critical. Under federal law, an environmental impact statement "insures the integrity of the agency process by forcing [the agency proposing a project] to face those stubborn, difficult-to-answer objections without ignoring them or sweeping them under the rug." Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 1043, 1049 (2d Cir. 1985)..

With the Boardman River Crossing Mobility Study, the FEIS misleadingly attempts to sweep under the rug the difficult questions concerning the prudent and feasible alternatives to the project. This is done in the FEIS by crafting an unreasonably narrow and factually unsupported definition of the purpose and need for the project — replacing the deficient Cass Road Bridge while maintaining and, in places, improving projected levels of service on five other river crossings, some of them several miles away. The FEIS concedes that few north-south travel deficiencies presently exist in the project area (FEIS, p. 2-2). The FEIS also finds that existing traffic volumes on the east-west routes are acceptable because all the crossings operate at a level-of-service ranging from B to D. "Typically, levels-of-service A through D are considered acceptable." (FEIS, p. 2-3)

The FEIS explains that future traffic growth, not current, is the impetus for the proposed project. "Traffic studies evaluating recent and projected population growth in the area indicate that east-west mobility across the Boardman River will be a major problem within the next few years. These problems will worsen with the eventual closure of the Cass Road Bridge." (emphasis added) (FEIS, p. 2-2.)

The statement of Purpose and Need, in addition to being narrow, also is inaccurate. Perhaps because inaccurate traffic models were utilized or inputs to the model such as population growth rates were wrong, the conclusions reached in the FEIS do not match those of land use experts, such as Garfield Township planner Gerry Harsch.

The Road Commission questioned Mr. Harsch regarding the future importance of the recommended Hartman-Hammond-Three-Mile Road alternative. They summarize his findings as:

• Private property within the township currently has sufficient road access to support development independent of the proposed bridge connection;
  
  
• Development activity in the township is occurring south of Hammond Road and has not been slowed by the lack of connection between Hartman and Hammond roads. (FEIS, Vol. II, Appendix C-1)

The deficient Cass Road Bridge and the projected congestion on some of the other east-west crossings in the Grand Traverse region, in fact, have no relation. This is illustrated in the FEIS. (FEIS, Table 3.2-1) This table shows that the same traffic volumes result on two of the river crossings being studied (Grandview Parkway/U.S. Route 31 and Eighth Street) from either closing the Cass Road Bridge without any other new construction or rebuilding the Cass Road Bridge to its original two-lane structure. Meanwhile, traffic volume on the Beitner Road crossing decreases slightly after the Cass Road Bridge is closed, when compared to rebuilding the bridge. This directly contradicts that FEIS statement that congestion will worsen with the closure of the Cass Road Bridge.

The FEIS lists Front Street as one of the six Boardman River Crossings in the project area (FEIS, p. 2-2). But the Front Street crossing is not mentioned again in the FEIS and is not listed on either Table 3.2-1 or Table 3.3-1, which include modeling data for the other five crossings. (Front Street serves Traverse City’s downtown shopping district). This omission leaves the public uninformed, contrary to NEPA’s requirement, about whether the two alternatives advanced for further evaluation would meet the project goal of maintaining levels-of-service on crossings, such as Front Street, that are not adjacent to the Cass Road Bridge. (FEIS, p.2-7)

By artificially linking two unrelated problems—the deficient Cass Road Bridge and regional east-west congestion—the FEIS creates a need that almost nothing other than the proposed Hartman-Hammond Connector with Three Mile Road alternative can satisfy. In fact, of the two build alternatives selected in the FEIS for further evaluation, only the Hartman-Hammond Connector with Three Mile Road alternative meets the narrowly defined purpose and need.

Indeed, the primary flaw of the FEIS alternative analysis is that the purpose and need is too narrowly drawn. The project in substance seeks to move traffic from the intersection of M-37 and U.S.31 to Hammond Road, tying into Three Mile Road, Four Mile Road, and Five Mile Road, and back to US-31 northeast of Traverse City.

The deficient Cass Road Bridge and east-west mobility are almost entirely unrelated and should be addressed as separate projects. This would allow other alternatives to compete more fairly with the Hartman-Hammond Connector with Three Mile Road alternative, quite likely at less cost to taxpayers and with less harm to the environment. Potential alternatives then would include repair of the deficient bridge as a single project without a significant impact. The repair was recommended, as part of a broader motion, on July 20, 1999, by a 5-0 vote of the planning commission of the Charter Township of Garfield, where the bridge is located. (See Pub. Comm. Appendix H-2)

Considering east-west mobility as a distinct project, alternatives worthy of evaluation would include transportation system modifications. These include synchronized traffic signals, reduced numbers of driveways and other access points, the creation of service drives for contiguous development, and the addition of sidewalks and other pedestrian facilities to improve traffic flow on roads projected to be congested in the future. These fixes would be more economically and environmentally prudent than the only alternative being furthered for evaluation, the Hartman-Hammond Connector with Three Mile Road alternative.

In addition, the Bay Area Transportation Authority, the regional bus system headquartered in Traverse City, has begun fixed-route service that also should be considered as a means of reducing congestion. Moreover, municipalities in the Grand Traverse Region are actively engaged in promoting compact development that is specifically intended to reduce car trips and congestion, and this also should be considered as part of an alternative. These alternatives, and other alternatives, were summarily dismissed during the study process as failing to meet the unreasonably narrow, arbitrary, and factually unsupported statement of purpose and need.

Once it is established that the Boardman River Crossing Mobility Study is not about a bridge, and should not be analyzed as such, the alternative analysis also properly turns to the Smart Roads alternative with Cass Road Bridge. The DEIS (Figure 3.1-7) shows that the Road Commission found the Smart Roads with Cass Road Bridge alternative moves traffic from the intersection of M-37 and U.S. 31, along Beitner Road to Keystone Road and on to a new short link to Hammond Road to Three Mile Road and on to U.S. 31. This analysis is not carried forward into the FEIS.

The Hartman-Hammond Connector with Three Mile Road alternative addresses much the same traffic flow as the Smart Roads alternative (DEIS, Figure 3.1-9), moving traffic north along U.S. 31 to Hartman Road, over the proposed new bridge to Hammond Road, and on to Three Mile Road and U.S. 31. With either of the two alternatives, Hammond Road gets extended to Keystone Road, so the question becomes: Which alternative gets drivers to the spot on Keystone Road where it would connect with the extended Hammond Road and then would continue eastward?

Once the alternative analysis is viewed this way, the Hartman-Hammond Connector with Three Mile Road alternative is shown to be excessively costly and unneeded. The Smart Roads with Cass Road Bridge alternative meets the Purpose and Need and Project Goals of the FEIS (p. 2-7), with less cost and less environmental impact. No new bridge and highway construction is required, no loss of farmland, no loss of wetlands, no impact on the Boardman River, no impact on recreational lands, and no impact on threatened elementary schools.

For these reasons related to an unreasonably narrow, arbitrary, and factually unsupported purpose and need, we respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

IV. FOR THE FIRST TIME, THE RECORD OF DECISION REVEALS THE LEVEL OF PUBLIC AND LOCAL GOVERNMENT OPPOSITION.

The ROD, for the first time, reveals the full scope of citizen and local government opposition to the Boardman River Crossing Mobility Study’s selected alternative and support for the Smart Roads: Grand Traverse Region alternative and its components. It is contrary to NEPA for the agencies to wait until the ROD to fully convey public and government sentiment that was known to FHWA before the final EIS was released.
The ROD states (pp. 15-16) that "The City of Traverse City sent a letter to the GTCRC expressing their opposition to the ‘Hartman/Hammond Bridge Project,’ which was not summarized in the Final EIS. The letter was received after the [DEIS’] 45-day comment period but nonetheless should have been referenced in Section 7." Opposition to the selected alternative by the City of Traverse City is vital and essential information that should have been made known to the state and federal review agencies before those agencies concurred with the final EIS. Opposition by the City of Traverse City is particularly relevant because the purpose and need for the project includes relieving congestion within Traverse City. In fact, the selected alternative results in a Level of Service "E" for all the modeled east-west routes in Traverse City. It is conceivable that had the review agencies been made aware of the City of Traverse City’s opposition, the agencies might then have, instead, supported the South Airport Road alternative or other combinations of alternatives. Indeed, even without knowledge of the City of Traverse City’s opposition to the selected alternative, several review agencies expressed their interest in the South Airport Road alternative.

Likewise, citizens should have been made aware of the Traverse City government’s opposition to the selected alternative in order to be fully informed before expressing their own opinions. Even without disclosure in the final EIS of the City of Traverse City’s opposition, a 60% majority of those citizens who wrote letters commenting on the final EIS opposed the selected alternative. (ROD, p. 12). This level of citizen opposition might have increased if the public had been made more aware of the viewpoint of the City of Traverse City.

Similarly, for the first time in the EIS process, the ROD indicates that the Smart Roads alternative received "considerable local support." During the draft and final EIS processes, consultants hired to assist with the project worked to trivialize the public’s support for the Smart Roads alternative. For example, during a meeting of the Citizen Advisory Committee closely following the release of the draft EIS, the Road Commission’s consultants sought to discount the relevance of hundreds of pre-printed post cards submitted by the public in support of the Smart Roads alternative and in opposition to the selected alternative. Later research showed that most people directly expressed their opinions by writing additional comments on the pre-printed cards and virtually everyone signed his or her name to the card. The majority of the public letters commenting on the draft EIS also appear to support the Smart Roads alternative and oppose the selected alternative.

In light of this new evidence showing that citizens and the state and federal review agencies were misinformed about the level of support for the selected alternative, we also respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

V. THE SELECTION OF THE BRIDGE-BUILDING ALTERNATIVE
WAS BASED ON FAULTY PREMISE.

The ROD states (p. 3) that one of the "primary reasons" for choosing the selected alternative was that "it would cost substantially less than the South Airport Road Alternative... ". This purported justification is false. In fact, it is likely that the cost of the selected alternative will exceed the cost of the other build alternative, namely the South Airport Road alternative.

The draft EIS states (pp. 5-60) that right-of-way and construction costs for the Hartman-Hammond-Three Mile Road selected alternative would cost $22.5 million and the South Airport Road alternative would cost $31.2 million, both in 1998 dollars. The most recent cost estimate for the selected alternative, however, brings the cost of the two build alternatives much closer together. The signature page and p.5-6 of the final EIS state that the Hartman-Hammond-Three Mile Road selected alternative would cost $25.9 million. Thus, the selected alternative is estimated in the FEIS to cost only about 20% less than the South Airport Road alternative.

In addition, the design on the selected alternative has not been completed. The final EIS says that the proposal is to set the bridge on piles of "fill." However, in its final EIS concurrence letter, the U.S. Environmental Protection Agency requested that piers be considered as supports rather than fill, in order to minimize wetland loss. The FHWA in the ROD, for the first time as part of the Boardman River Crossing Mobility Study, states that, "Support of the bridge on piers instead of fill will be considered during design." Designing, manufacturing, transporting, and installing the piers is highly likely to cost significantly more money than using fill. In addition, the Department of Interior’s concurrence letter "strongly recommend[ed] that the final engineering plans include bridging of the Boardman River Valley to the maximum extent practicable." This recommendation is also likely to significantly increase the cost to construct the selected alternative. Thus, if the recommendations of FHWA and the federal review agencies are followed, the selected alternative is quite likely to cost a good deal more than the other build alternative, the South Airport Road alternative. This runs directly counter to the supposed cost savings promised by the selected alternative and cited as a primary reason for its selection.

Because of this new information as well, brought forward after the final EIS in letters by review agencies as well as by the FHWA in the ROD, we respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

VI. THE WETLAND MITIGATION STUDY WAS FUNDAMENTALLY FLAWED.

The ROD contains new information revealing that the Road Commission intends to use an approach to wetland mitigation that is highly likely to fail. The approach relies in part on a regulatory process conducted by the Michigan Department of Environmental Quality, which does not have an effective wetland mitigation program in place. With respect to mitigation, the ROD states (pp. 9-10) that:

Wetland mitigation sites will be thoroughly evaluated during final design and preparation of the MDEQ permit application for the project. Detailed analysis of parameters necessary to create the conditions for a functional wetland will be completed. Design details of the wetland mitigation plan will be presented and reviewed by the resource agencies in advance to the submittal of a permit application. The wetland mitigation plan will provide an appropriate buffer zone for boundaries not adjacent to existing wetlands or the Boardman River. Performance criteria for post-construction success of the mitigation will be discussed during the agency pre-application meeting. The permitting process will have a rigorous regulatory review prior to the approval of the wetland mitigation plan.

After the close of the final EIS public comment period on March 19, 2001, the Michigan Land Use Institute and the Environmental Law and Policy Center obtained, through a peer organization’s Freedom of Information Act request, a Michigan Department of Environmental Quality ("MDEQ") internal report confirming that wetland mitigation projects such as the one proposed in the final EIS are highly unlikely to succeed in offsetting damage to existing wetlands. The MDEQ internal report evaluated the state’s wetland mitigation program and was prepared by the Land and Water Management Division. Michigan Wetland Mitigation and Permit Compliance Study Final Report, prepared September 2000, evaluating 159 wetland mitigation sites. This report identified the main factors responsible for 78% of wetland mitigation projects failing to meet their intended objectives:

• The use of "conceptual" mitigation plans rather than a complete mitigation plan. MDEQ staff recommended that "The current practice of requiring no specific mitigation plan, or accepting ‘conceptual’ plans, should be stopped." (MDEQ Report, p. 46).
  
  
• "Mistakes involving hydrology generally result in failure. Hydrology appears to be the single most misunderstood, least understood, or least studied aspect of most mitigation projects…Getting the hydrology ‘wrong’ occurred in 3 out of every 4 mitigation projects." (MDEQ Report, p. 57).
  
  
• Every mitigation project intended to create a forested wetland, such as a conifer swamp, failed.

Hydrological information is even more critical when creating a forested wetland. (MDEQ Report, pp. 60-61). The wetlands mitigation process outlined in the final EIS presents a conceptual wetlands mitigation plan, proposes to create a forested wetland, and fails to perform a sufficient hydrological study. We respectfully request that Federal Highway Administration, the U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service acknowledge that the conceptual wetland mitigation plan in the final EIS is highly unlikely to succeed.

In its report, the MDEQ lays out specific recommendations for attaining a greater likelihood of success. These include developing a complete wetland mitigation plan based on a thorough hydrological study and with realistic goals, such as a higher ratio of out-of-kind mitigation. Given this new information, FHWA and cooperating agencies should require supplemental work to develop a wetland mitigation plan that actually is likely to succeed before the agencies conclude their review of the final EIS.

Consequently, the ROD anticipates developing the wetland mitigation plan with regulatory agencies that do not have an effective wetland mitigation regulatory program in place. For this reason as well, and in light of all the new information contained in the MDEQ report, we respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

VII. UNWARRANTED RESTRICTIONS WERE PLACED ON THE BRIDGE DESIGN.

The ROD contains new information revealing that FHWA does not expect the Road Commission to consider a range of reasonable design alternatives to minimize wetland impacts. In response to a request by the U.S. Environmental Protection Agency to minimize wetland loss, FHWA states in the ROD (p. 10): "Support of the bridge on piers instead of fill will be considered during final design." However, FHWA fails to give the Road Commission a similarly appropriate directive in response the Department of Interior’s concurrence letter, which "strongly recommend[s] that the final engineering plans include bridging of the Boardman River Valley to the maximum extent practicable."

Thus, the FHWA is arbitrarily precluding consideration of a bridge spanning the maximum amount of the river valley possible, which would very likely be most protective of wetland and aquatic resources, as well as wildlife habitat. For this reason as well, we respectfully request that FHWA reconsider its ROD for the Boardman River Crossing Mobility Study.

CONCLUSION

For all of the foregoing reasons, the Michigan Land Use Institute, the Environmental Law and Policy Center of the Midwest, the Coalition for Sensible Growth, the Northern Michigan Environmental Action Council, and the Sierra Club - Traverse Group respectfully request that the Federal Highway Administration reconsider its Record of Decision and require the Grand Traverse County Road Commission to revise the Final Environmental Impact Statement to comply with the requirements of NEPA and Section 4(f). Thank you for your consideration, and please contact us if you would like to discuss these issues in greater detail.

Respectfully submitted,

Kelly Thayer
Transportation Project Coordinator
Michigan Land Use Institute
845 Michigan Avenue
P.O. Box 228
Benzonia, MI 49635
(231) 882-4723

Ann Spillane
Senior Attorney
Environmental Law and Policy Center
35 East Wacker Drive
Suite 1300
Chicago, IL 60601-2110
(312) 795-3713