Monday, March 31, 2008

My NCAA Basketball Bracket is on Life Support

After this weekend's Men's NCAA basketball championship results, I have but one team picked to win one game next weekend. As one would expect, my non-statistical relatively uninformed bracket filling was relying on mostly luck. And, I had a bit of luck go my way. Comparing my picks to picking purely the better seeded teams to win I had the following results.

Round one: I picked 23 of 32 winners; 'experts' picked 24 of 32 winners.

Round two: I picked 12 of 16 winners; 'experts' picked 11 of 16 winners.

Round three: I picked 3 of 8 winners; 'experts' picked 5 of 8 winners.

Round four: I picked 1 of 4 winners; 'experts' picked 4 of 4 winners.

In summary, my bracket had 39 correct entries and 21 incorrect entries compared to the 'experts' having 44 correct entries and 16 incorrect entries. I can live with that. It just goes to show that we all can succeed on occasion in March Madness. Of course I relied a fair bit on the expert seedings to guide me in many of the selections. I am often picking underdogs to win, so I am surprised I did as well as I did. Memphis is my only chance at getting my 40th win this tournament in case you are curious.

Now, if I can have some success in picking election winners in the November 2008 election I will really be happy. My current national bracket includes Barak Obama for President, Mark Warner for U.S. Senator from Virginia, and Tom Perriello for the 5th congressional district. I didn't put any money on my basketball picks, but I have invested a bit in November 2008 political races. I may be telephoning you about some of these races to see if I can boost the odds of going 3 for 3 in November. I do significantly more homework in picking my candidates than basketball game winners, and I encourage you to do the same.

Visit:;; and when you get a chance to check out candidate choices for theses offices.

Friday, March 28, 2008

Does Earmark Indicate Congressional Mandate for Route 250 Bypass Interchange at McIntire Road?

On March 3, 2008 my blog posting questioned if the earmark of $25 million for funding to "Construct Meadowcreek Parkway Interchange" constituted a mandate for building this interchange. Since that posting I reread a July 28, 2005 headline article in The Daily Progress that indicates Senator John H. Warner, R-Alexandria, was providing the funding for reasons that don't rise to the level of mandate for construction. I have included the text of this article below and I believe you will agree that this earmark is not suitable as being one of the purposes for building this proposed interchange as stated in the projects statement of "Purpose and Need" in the draft Environmental Assessment. As I read the Bob Gibson article below, I am reminded of the Alaska Bridge to Nowhere earmark discussion more than being convinced that our senator believes there is a compelling federal interest in this interchange being constructed. The interchange consultants continue to argue that transportation alternatives that avoid having significant impacts on historic properties and parkland are not acceptable in that they don't meet the project Purpose and Need, I find it essential that this earmark be removed from the itemized elements in the Purpose and Need statement.

Bob Gibson's article includes Sen. Warner saying "It doesn't have a damn thing to do with politics or anything like that. It's just an old [former University of Virginia law] student's expression of gratefulness to the community." It is hard to argue that this is a statement of the earmark being a way of meeting a clear transportation interest of the federal government or any sort of congressional mandate. I think this earmark is all about politics and not about transportation at all.

Here is the July 28, 2005 article for your consideration.

Warner secures parkway funds: Senator's fondness for city earned Meadowcreek monies

By Bob Gibson, Daily Progress staff writer
Published in The Daily Progress
Thursday July 28, 2005, page 1

Citing his affection for Charlottesville, U.S. Sen. John W. Warner, R-Alexandria, said Wednesday that he has secured $25 million fo fully fund the final piece of the long-stalled Meadowcreek Parkway.

Warner said he decided to earmark the federal transportation dollars available to him as a senior senator to pay for a grade-separated interchange at the U.S. 250 Bypass, McIntire Road and the southern end of the parkway that has been planned for more than 30 years. The 2-mile parkway would extend from East Rio Road to Melbourne Road, wind through the east edge of McIntire Park and end at the U.S. 250 Bypass.

"It doesn't have a damn thing to do with politics or anything like that. It's just an old [former University of Virginia law] student's expression of gratefulness to the community," Warner said in a telephone interview.

"I started in 1949 in the law school," said Warner, who described leaving to fight in the Korean War and returning to Charlottesville in 1951. "Charlottesville opened its arms to us, the veterans coming back from the war. I have to look back now at 78 years old and say those were some of the happiest years of my life."

Warner said he decided to earmark the full $25 million for the interchange to complete the parkway's funding after longtime friend Forrest Marshall, a city pharmacist and former county supervisor, led a delegation to Washington to appeal for the funds.

A local's nudge

"Forrest had a lot to do with it," Warner said. He said he was impressed with the unanimity voiced by Charlottesville Mayor David Brown, county Supervisor Ken Boyd, 5th District Rep. Virgil H. Goode Jr., R-Rocky Mount, and others who met with him on April 7.

Brown said the 30-minute meeting with Warner was fruitful beyond anyone's hopes or dreams, although Warner was careful at the time not to promise any funding for the parkway project.

"What's the saying in politics? It's better to under-promise and over-deliver," Brown said. "The mood of the meeting was very positive. I felt growing cooperation was evident between the city and the county."

John J. "Butch" Davies III, a former Culpeper delegate who represents the Charlottesville-Culpeper region on the Commonwealth Transportation Board, said the full funding would not have been possible without Warner earmarking the $25 million after the federal highway funding bill had been largely agreed upon.

"That really is a victory for the community," Davies said. "The state was on board and the money was there for the Meadowcreek Parkway."

With funding secured for the $25 million interchange needed for the $31 million parkway, the project can be built within five to six years, Davies said.

"It will actually improve conditions on [the U.S. 250 Bypass] from what they are today" by eliminating a traffic light and having one highway built over the other, said Harrison B. Rue, executive director of the Thomas Jefferson Planning District Commission, who also attended the meeting in Warner's Senate office.

Rue said the city portion of the parkway across the eastern fringe of McIntire Park will cost about $11.6 million. He said the parkway's county portion from a Melbourne Road intersection just east of Charlottesville High School's football stadium north to East Rio Road will cost an estimated $19.4 million.

Rue and Davies said the parkway may include a roundabout at Melbourne Road with no traffic lights, although the Virginia Department of Transportation does not favor that design.

Boyd, the county supervisor at the meeting, said Warner "was very impressed that the city and county were coming and asking for something in agreement. That has not always been the case."

Opening Parkland

He said the parkway will increase the amount of parkland, not decrease it, and will "actually be a linear park with the ability to walk and bike downtown. There are bike paths and walking paths that are off the road."

Boyd said county officials were excited at the news from Warner "because we had thought we would not get all the money we asked for."

Marshall, the former supervisor who arranged the meeting with Warner, said the senator found the full amount "because he loves the community. He said you tell those guys he did it because he was in school here and fell in love with the area. This man has done an awful lot for this community."

Davies said the parkway and the extension of Hillsdale Drive as another parallel road on the east side of U.S. 29 will ease congestion on the portion of U.S. 29 just north of Charlottesville.

"Both of these roads will divert significant local traffic," Davies said. "They divert the local traffic to alternate routes at affordable dollars."

The interchange secured by Warner "helps enormously with the viability of this [U.S. 29] corridor and it makes the 250 Bypass work," Davies said. "The city is a big winner in this project."

Photo Source: Associated Press from online source.

March Madness

This is the time of year I test my guessing ability more than any understanding of NCAA basketball. I competed in quite a few sports at college, high school, and club level - but basketball was not one of them. I join in the March Madness to the extent I fill out a bracket and pick my selection of upset winners, and follow the results in the morning paper (and watch a very little bit of a few games on TV). My guessing skills are pretty good, though, and I actually 'predicted' the success of Villanova, West Virginia, Xavier, and several other upset winners.

Of the four teams that won their third round games, University of North Carolina, Xavier, UCLA and Louisville - only Louisville was not on my bracket. I picked Tennessee to beat Louisville, but I remember agonizing over whether to pick Tennessee or Louisville (on team mascot, or jersey color, or past associations with the city or state or whatever guided my decision). In fact, in the interest of complete disclosure, I picked Tennessee to win the whole tournament so there is now a big hole in my bracket.

When it comes to doing pubic policy decision analysis and planning I read news articles, rules and regulations, court cases and reports - but for NCAA basketball I am happy to get my bracket and fill it with my choices in about three minutes with little thought.

I am going to enjoy my success in NCAA men's basketball 'bracketology' and be hoping for my selections of Texas, U. of Wisconsin, Memphis, and Kansas that were my original bracket picks to win tonight. I have not watched any of these teams play this year and I don't even know the jersey colors for all these teams, but being lucky is a good thing. Hard work and research clearly has its rewards, but picking 7 out of 8 teams to reach the 'elite-8' (if my luck continues) would be a treat - and much better than my usual success in picking winners.

Thursday, March 27, 2008

Our Collective Thumb Needs to be on a Scale Favoring Parkland and Historic Preservation

I have been thinking about the presentation by the RK&K consultants to the Route 250 Bypass Interchange at McIntire Road steering committee on March 19, 2008 resulting in the steering committee voting to recommend alternative C1 as the their preferred alternative to Charlottesville City Council. The project will be constructed on both McIntire Park and Bailey Park and will clearly have significant impacts on nearby historic properties and public parkland - both of which are protected under Section 106 and/or Section 4(f) regulations. The purpose of these protections is to ensure that our cultural resources are not sacrificed by federally funded road projects when in fact the benefits of the road project are not great enough, or there are project alternatives that avoid or mitigate impacts on these sensitive and protected resources. I believe that RK&K consultants have misguided the steering committee into believing that these cultural and historic resources have been considered adequately, and that independent of the steering committee's recommendation these resources will be protected in future detailed interchange plan development. The consultants also stated that the decision on protections of historic resources is in the hands of the Federal Highway Administration only, but this overstates their role and ignores involvement by the Virginia Department of Historic Resources and possibly involvement of the Advisory Council on Historic Preservation.

I reviewed the draft Environmental Assessment (where information on the potential impacts of the project alternatives are to be described for public review) and noted that the RK&K engineering consultants continue to state that the McIntire Road Extended project and an interchange at the Route 250 Bypass were "jointly developed" with the McIntire Park master plan and that this eliminates the need to consider use of land in McIntire Park as an impact on protected parkland. Joint development of parkland and roadway projects would eliminate need to consider the interchange's impact on the park only if it was jointly planned when the park was created. The joint planning they refer to was decades after the park was created.
The draft Environmental Assessment prepared by RK&K states on page 43:

"Given the context whereby past, present and reasonably foreseeable future actions have cumulatively introduced development that is incompatible with the setting, location, and feeling of the historic resources located in the analysis area as well as directly impacted historic resources such as McIntire Park, the incremental, cumulative impact on historic resources from the proposed project is not considered significant."

I find it hard to agree with this assessment given that the effects of proposed alternatives on historic properties through the Section 106 consulting parties process began after the draft was prepared and submitted to FHWA for consideration. Perhap the city's consultants believe their role in this process is to promote the construction of one of the RK&K designed interchanges, but I believe it is important to ensure that a full statement of likely effects all alternative interchange alternatives will likely have on protected resources is provided for committee and public review prior to asking the steering committee for a recommendation. The list of historic properties eligible for listing on the National Register of Historic Places was expanded recently through the Section 106 consultation process and no final agreement on the level of effects proposed interchange alternatives will have on these historic properties. Determination of direct, indirect, and cumulative effects from alternative interchange designs through the Section 106 process is supposed to inform decision makers of the level of effects and possible ways to avoid and/or mitigate effects prior to their selecting one alternative for final design. The Section 106 process has never been adequately included in development of this project to date. This is clearly not in compliance with either the spirit or letter of the Federal-aid Highway program requirements.

Rather than reiterating old interpretation of now superseded requirements, or past insensitivity of prior transportation developments in and near McIntire Park, I urge the city and their consultants to review carefully the new federal rules that will go in effect on April 11, 2008 and require the consideration of preserving parkland and historic properties (where the eastern portion of McIntire Park falls into both categories) .

The preamble states that the new regulations "adopt the reasoning of several Circuit Courts of Appeal that safety concerns, adverse impacts to non-Section 4(f) resources such as communities and natural environmental resources, and the costs of constructing and operating an alternative must be compared to the harm that would result to the features, activities, and attributes that qualify the Section 4(f) property for protection."

The preamble goes on to state that "This balancing must be done with a 'thumb on the scale' in favor of the Section 4(f) property because of the paramount importance Section 4(f) places on those properties."

I am not sure where the thumbs of the project developers are, but certainly not on any scale balancing historic or parkland resources against interchange benefits. Now is the time that the city, its steering committee, and its consultants all focus on including consideration of these properties in considering among the build and no-build interchange alternatives. Not only is this a good idea, it is the law. If we don't protect our cultural resources now they will be lost forever.

Photo: from interchange project website at

Friday, March 21, 2008

Charlottesville Tomorrow Posts Summary of Route 250 Bypass Interchange at McIntire Road Steering Committee Meeting

Charlottesville Tomorrow posted a text summary of the Route 250 Bypass Interchange at McIntire Road Steering Committee meeting on their weblog. Sean Tubbs did a terrific job of capturing the essence of the meeting. Check it out and see if you think (as I do) that the action taken by the steering committee is premature. There are alternatives that have not yet been studied that will mitigate the significant effects this interchange project will have on the many historic properties in the vicinity of the project. It is interesting that the rational noted for delaying a decision on a preferred alternative was awaiting completion of the Section 106 process. But now a decision has been made prior to completion of that process. Where is the pressure to decide prematurely coming from, the city, the consultant, other? Do read the summary and let me know what you think. The full audio of the meeting will be made available soon for those who wish to hear the nearly three hours of discussion. I will notify you when and how that audio can be accessed.

Thursday, March 20, 2008

My Quasi-Legal Review of FHWA's Position on Impacts of the Route 250 Interchange at McIntire Road Project on Historic Properties

A letter from the Virginia Division of the Federal Highway Administration was sent to Mr. Marc Holma of the Virginia Department of Historic Resources to explain their position on addressing impacts of the Route 250 Bypass Interchange at McIntire Road project on historic resources on or eligible for listing on the National Register of Historic Places. I scanned and posted that letter below with links to other related letters and material I use in my critique of the FHWA position. I am not an attorney, but clearly the analysis provided by FHWA is worth viewing in light of their own guidance documents and current legislation.

In my previous posting I mentioned that the RK&K Consultants misrepresented some of the FHWA role in approval of project alternatives based on impacts on historic properties. This critique adds additional concerns about the adequacy of the project development as it relates to historic properties, and to some of the relationships of the National Environmental Policy Act (NEPA) in this project.

I encourage you to provide me any constructive feedback you believe will add to this discussion as a comment to this posting. Here are my thoughts and analyses for your consideration. Entries in italics in the letter are added by me.

Letter from:

Virginia Division
Federal Highway Administration
400 North 8th Street, Room 750
Richmond Virginia 23219-4825


U.S. Route 250 Bypass Interchange
Response to VDHR's December 9, 2007 letter
City of Charlottesville, Virginia

February 15, 2008

Mr. Marc Holma, Architectural Historian
Office of Review and Compliance
Virginia Department of Historic Resources
2801 Kensington Avenue
Richmond, VA 23221

Dear Mr. Holma:

The Federal Highway Administration (FHWA) is in receipt of a copy of your December 9, 2007, letter [Note: Letter actually dated December 7, 2007] to Ms. Angela Tucker of the City of Charlottesville regarding the subject undertaking. In your letter, you raise an issue that requires a response from FHWA, the lead federal agency. In particular, you state, "Another issue brought up by the Department of Historic Resources in our letter [Note: Sent by Mark Holma to Ms. Angela Tucker on October 30, 2007] and at the consulting parties meeting [Note: meeting date is November 26, 2007] is the potential for cumulative effects to historic properties resulting from the subject interchange project and the proposed McIntire Road Extension. As previously stated in our 30 October letter, the regulations that govern Section 106, 36 CFR Part 800, consider it appropriate to evaluate the effects of these two undertakings jointly since one may be interpreted as a reasonable consequence of the other (36 CFR Part 800.5(a)(l)) [See NOTE 1 below for text]. This is true even if the road project is state funded rather than federally funded. Therefore we still believe it necessary to include the McIntire Road Extension project in the overall area of potential effect and assess the impacts to historic properties, particularly McIntire Park, of that project along with the bypass."

This is not the first time that VDHR has made reference to 36 CFR Part 800.5(a)(1) in its comments on projects to support its position and in particular, its position on the scope of the undertaking subject to Section 106. Likewise, this is not the first time that FHWA has commented on VDHR's reference. As we have stated before, FHWA and its Federal Preservation Officer [see NOTE 2 below] believe that using this reference to expand the scope of the undertaking subject to Section 106 that had been previously defined by the lead federal agency in accordance with NEPA is an inappropriate application of 36 CFR Part 800.5(a)(1). The context of the Section 106 regulations in which this reference occurs is titled, "assessment of adverse effects". This section of the regulations and it[s] reference to cumulative impacts has no bearing on the lead federal agency's efforts to establish the scope of an undertaking subject to Section 106. The scope of an undertaking is established using the principles of NEPA and in particular, the principles of logical termini and independent utility codified in 23 CFR Part 771.111(f) [See NOTE 3 below for text] without any reference to effects. Moreover, the full citation for this reference is, "Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative." Therefore, it is FHWA's position that using the cumulative effects of other projects outside of FHWA's jurisdiction to expand the scope of an undertaking subject to Section 106 is not consistent with NEPA or the purpose of this section of the Section 106 regulations. [See Note 4 below]

FHWA also takes issue with VDHR's conclusion that the McIntire Road Extension (a.k.a. Meadow Creek Parkway) [See NOTE 5 below] and the U.S. Route 250 Bypass interchange projects "may be interpreted as a reasonable consequence of the other". To arrive at this conclusion, one would need to argue that either the McIntire Road Extension is an indirect effect of the U.S. Route 250 Bypass interchange or the U.S. Route 250 Bypass interchange project is an indirect effect of the McIntire Road Extension. As we have explained on other projects, in order for another undertaking to be an indirect effect of FHWA's undertaking, their must be a cause and effect relationship. If a causal relationship exists, then FHWA is required under NEPA to include that additional undertaking in the scope of its undertaking. In FHWA's Interim Guidance: Questions and Answers Regarding Indirect and Cumulative Impact Considerations in the NEPA Process dated January 31, 2003, that causal relationship is described as a "but-for" relationship. [See Note 6 below] Applying that principle to our undertaking to determine whether the interchange causes the McIntire Road Extension, one would need to demonstrate that but for the interchange project, the McIntire Road Extension project would not exist, be needed or serve a purpose. In other words, one would need to demonstrate that the U.S. Route 250 Bypass interchange project creates the need for the McIntire Road Extension project. This argument not only falls apart on its face, it also falls apart given the history of the McIntire Road Extension, which has been developed since the early to mid-90s with an at grade intersection to serve a purpose established by the City of Charlottesville, Albemarle County, and VDOT. If for some reason the U.S. Route 250 Bypass interchange project were to be shelved or the funding was no longer available, it is reasonable to conclude that the McIntire Road Extension, at least the portion in Albemarle County, would go forward to construction. The Albemarle County portion of the McIntire Road Extension project is in the right-of-way acquisition phase with a construction advertisement date of June 2008. [See Note 7 below] As for the City portion of the McIntire Road Extension, it has been fully designed with an at-grade intersection, and VDOT has secured a temporary construction easement from the City consistent with this design. [See NOTE 8 below] It too has a construction advertisement date of June 2008. It remains to be seen whether or not VDOT will proceed with this contract for the City portion of the McIntire Road Extension if delays were to occur in the development of the interchange. The interchange project itself has an advertisement date of late 2009, and its construction is intended to be synchronized with the construction of the McIntire Road Extension project so as to minimize disruption to the public. To summarize, it is FHWA's position that the U.S. Route 250 Bypass interchange project does not cause the McIntire Road Extension and as such, is not a "reasonable consequence of the other".

Likewise, FHWA does not believe that the converse is true either. Namely that the U.S. Route 250 Bypass interchange is a "reasonable consequence" of the McIntire Road Extension project or that the McIntire Road Extension causes the U.S. Route 250 Bypass interchange project. In other words, but for the McIntire Road Extension project, the interchange would not be constructed because there would be no need for it, and it would not serve a purpose. This argument is tenuous and would be difficult to demonstrate since 80% of the traffic projected to use the U.S. Route 250 Bypass interchange project comes from existing roads while only 20% of the traffic would originate with the McIntire Road Extension project (based on traffic data provided in the Environmental Assessment). While the design of an interchange at this location will be influenced by a connection to the McIntire Road Extension project, the need for an interchange is primarily driven by the traffic from the existing road system. The conclusion that the McIntire Road Extension project does not create the need for the U.S. Route 250 Bypass interchange project is further confirmed by the consultant's analysis which shows that the existing intersection would function at level of service F in the design year if the McIntire Road Extension is not constructed, demonstrating that a need exists for an interchange apart from the McIntire Road Extension. [See NOTE 8 below]

The issue of whether one undertaking is an indirect effect or "reasonable consequence" of another undertaking is also closely tied to the NEPA concept of independent utility. These concepts speak to whether an undertaking is useable and represents a reasonable expenditure even if no additional transportation improvements are made; whether it can function and stand alone as an independent project and not cause unexpected consequences which require additional corrective action. Some use the "loaded gun" analogy to represent this relationship. In order for the loaded gun analogy to apply to our undertaking, one would need to demonstrate that the U.S. Route 250 Bypass interchange project points a loaded gun at the existing transportation system causing unexpected consequences, which required the construction of the McIntire Road Extension to address. For the same reasons cited above - the history of the McIntire Road Extension and the contribution of the McIntire Road Extension to the traffic that would use the U.S. Route 250 Bypass interchange - this is just not the case.

It would also be difficult to demonstrate that the McIntire Road Extension project would not function, be useable or serve a purpose apart from the U.S. Route 250 Bypass interchange. While the City of Charlottesville has granted a temporary construction easement to VDOT to construct the McIntire Road Extension through McIntire Park conditioned upon VDOT not constructing an at-grade intersection, political decisions like these do not factor into FHWA's determination regarding independent utility. Instead, determinations regarding independent utility are based on whether a proposed undertaking can function or operate on its own and is considered useable if no other improvements are made, not whether a proposed undertaking will function or operate on its own. The determination of whether a federally funded project can function and operate on its own is a NEPA determination and isn't necessarily influenced by the decisions made by others regarding how a project is actually constructed or how contracts are let. Therefore, while the interchange is being designed and is intended to be constructed to accommodate what FHWA considers to be a committed project by others, this design and proposed sequencing of construction has no bearing on FHWA's determination regarding independent utility. [See NOTE 9 below]

Some have pointed out that an at-grade intersection will function at level of service F if the McIntire Road Extension is constructed and that VDOT policy dictates that improvements be made to correct the operational deficiencies. In other words, the McIntire Road Extension itself does not have independent utility and points a loaded gun at the existing transportation network requiring the construction of an interchange to correct. Recognize that FHWA is only obligated and required to determine that its undertakings have independent utility and is not required to demonstrate that other undertakings outside of its jurisdiction have independent utility. Further, FHWA does not have the authority to extend federal concepts and requirements to separate state actions. Notwithstanding, we have looked at the issue. As explained above, the level of service at the existing intersection without the McIntire Road Extension will be level of service F, which is the same as the level of service at this location with the McIntire Road Extension. Therefore, while FHWA is not in a position to comment on the VDOT policy referenced by others, it would appear that the addition of the McIntire Road Extension project does not deteriorate the no-build condition sufficiently to cause VDOT to address those circumstances as part of their project.

FHWA belabors the point regarding indirect effects and independent utility for a reason. While another undertaking can certainly be an indirect effect of FHWA's undertaking (although, as documented above, FHWA does not consider the McIntire Road Extension to be an indirect effect of the U.S. Route 250 Bypass interchange), it becomes a moot point when making reference to and considering adverse effects in accordance with 36 CFR Part 800.5(a)(1). It becomes a moot point because FHWA, in fulfilling its responsibilities in accordance with 36 CFR Part 800.3(a), will have already determined whether other undertakings are an indirect effect of their own when establishing the scope of its undertaking in accordance with NEPA. Section 106 and in particular 36 CFR Part 800.5(a)(1) does not give cause for FHWA to establish a scope for its undertaking that is different from the scope established in accordance with NEPA. Once an undertaking is established, an area of potential effect (APE) can be developed for that specific undertaking based on the direct and indirect effects that are anticipated consistent with 36 CFR Part 800.16(d). Once the APE is established, adverse effects can be determined in accordance with 36 CFR Part 800.5(a)(1) "within the area of potential effect".

While FHWA is obligated to consider cumulative effects in accordance with 36 CFR Part 800.5(a)(1), those effects must be "caused by the undertaking" as the undertaking has been defined by the lead federal agency. Keep in mind that a cumulative effect in this context is the incremental effect of our undertaking when added to the effect of other reasonably foreseeable projects such as the McIntire Road Extension as well as the City of Charlottesville's update of the Master Plan for McIntire Park. FHWA will assume responsibility for the cumulative effects caused by its undertaking (i.e. the incremental effect) but not the cumulative effects of other projects outside of its jurisdiction. Further, 23 CFR Part 771.105(d) restricts the use of Federal funds for measures necessary to mitigate adverse impacts provided the impacts for which the mitigation is proposed actually results from the FHWA action. [See NOTE 10 below]

We hope this response helps VDHR to better understand how the Federal Highway Administration addresses its NEPA responsibilities in establishing the scope of its undertakings and in particular, the scope of the U.S. Route 250 Bypass interchange subject to Section 106. FHWA recognizes that the concepts involved in the project development process can be complex and as a result, there can be an occasional and respectful difference of opinion in the interpretation of federal law and regulations. Despite the difference of opinion though, we hope that we can work together to balance the needs and competing interests of those involved in a manner that all can benefit from. If you have any questions on FHWA's determination or position, do not hesitate to contact me at (804) 775-3338.


Roberto Fonseca-Martinez
Division Administrator

Signature: Edward S. Sundra


Edward S. Sundra
Environmental Specialist, Sr.

cc: Angela Tucker, City of Charlottesville
Helen Ross, Rick Crofford, Christine Fainter, VDOT
Mary Ann Naber, FHWA
Eric Almquist & Owen Peery, RKK Engineers
Richard Collins, Peter Kleeman, Daniel Bluestone, Mary Howard, Collette Hall


NOTE 1: Text of 23 CFR 800.5(a)(1)

36 CFR 800.5 Assessment of adverse effects.

(a) Apply criteria of adverse effect. In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified historic properties, the agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. The agency official shall consider any views concerning such effects which have been provided by consulting parties and the public.

(1) Criteria of adverse effect. An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics of a historic property, including those that may have been identified subsequent to the original evaluation of the property's eligibility for the National Register. Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.


NOTE 2: Federal Highway Administration Federal Preservation Officer Contact Information

Ms. MaryAnn Naber
Federal Preservation Officer
Office of Project Development and Environmental Review
Federal Highway Administration
1200 New Jersey Ave. SE
Room E76-326
Washington, DC 20590
Phone: 202.366.2060
Fax: 202.366.7660


NOTE 3: Text of 23 CFR 771.111(f)

23 CFR Part 771 -- ENVIRONMENTAL IMPACT AND RELATED PROCEDURES Early coordination, public involvement, and project development.

Section 111 Early coordination, public involvement, and project development.

(f) In order to ensure meaningful evaluation of alternatives and to avoid commitments to transportation improvements before they are fully evaluated, the action evaluated in each EIS or finding of no significant impact (FONSI) shall:
1. Connect logical termini and be of sufficient length to address environmental matters on a broad scope;
2. Have independent utility or independent significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and
3. Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

NOTE 4: Guidance on Direct, Indirect and Cumulative Effects of a Federal Undertaking

Reference is made to FHWA guidance dated January 31, 2003. But this was provided as interim guidance. It appears current guidance has been posted that supersedes the interim guidance, but this guidance is clearly related to the NEPA process and does not reference the Section 106 process in any way. Section 106 impacts are to be coordinated with NEPA but the underlying statutes are independent. The only statement in the FHWA guidance concerning Section 106 is as follows:

The regulations implementing Section 106 of the National Historic Preservation Act (NHPA) require the consideration of indirect and cumulative impacts when applying the criteria of adverse effect on historic properties (36 CFR §800.5(a)(1)) and delineating the area of potential effects (APE) (36 CFR § 800.16(d)).

The issue of project scope addressed in the FHWA letter seems to be an issue unrelated to consideration of indirect and cumulative impacts of concern to VDHR.

FHWA includes in its guidance the following statement about indirect and cumulative impacts indicating that these issues are not related to NEPA, but in fact are covered by other legislation.

"Regulatory History of Indirect and Cumulative Impacts

Under NEPA, project sponsors are required to identify and avoid, minimize, or compensate for direct project impacts. While the NEPA legislation does not mention indirect or cumulative impacts, the Council on Environmental Quality (CEQ) established Federal agency responsibility for identifying, analyzing, and documenting direct, indirect, and cumulative impacts in its "Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR §§ 1500 - 1508)." CEQ regulations direct that the environmental consequences section of an Environmental Impact Statement or Environmental Assessment include a discussion of adverse impacts that cannot be avoided, including direct and indirect impacts.

Other statutory and regulatory mandates include indirect and/or cumulative impact requirements, including the Endangered Species Act, Section 404 of the Clean Water Act, Section 106 of the National Historic Preservation Act, and Executive Order 12898 on Environmental Justice."

NOTE 5: Uniqueness of McIntire Road Extended and Meadow Creek Parkway projects

McIntire Road Extended and the Meadow Creek Parkway are independent projects with different lead agencies - City of Charlottesville for McIntire Road Extended; Virginia Department of Transportation for Meadow Creek Parkway. It is both incorrect and confusing to combine these two independent projects into one or use interchangable names for these independent projects.

NOTE 6: Interim Guidance cited has been replaced by more recent guidance.

Current guidance on indirect and cumulative impacts is available that no longer uses this approach to evaluating these impacts. Current guidance is at

Note 7: Irrelevance of Albemarle County's Meadow Creek Parkway project right-of-way acquisition to current discussion.

McIntire Road Extended has its termini at Route 250 Bypass and Melbourne Road and does not extend north of the proposed intersection at Melbourne Road. Right-of way decisions associated with the Meadow Creek Parkway project relate to a project considered totally independent of both McIntire Road Extended and the Route 250 Bypass Interchange at McIntire Road. Only if VDOT were to combine all three of these independent projects would this Section 106 discussion be relevant. Many argue that these projects or at least the Route 250 Bypass Interchange and McIntire Road Extended should be combined into one undertaking as they are both currently in preliminary engineering and are addressing overlapping parts of the park.

FHWA overstates the current status of the McIntire Road project. The road is not fully designed as stated but is still in preliminary engineering. No stormwater management plan has yet been developed and it is not clear when this will be achieved. Also, the city of Charlottesville has not yet granted a construction easement to VDOT for construction of McIntire Road Extended. A resolution was passed by the City Council with conditions necessary to be met prior to granting such an easement. These conditional have not been met and no construction easement has been granted to VDOT.

Note 9: Relationship between Route 250 Bypass Interchange at McIntire Road and the McIntire Road Extended Projects

The FHWA argument appears to be based on information that appears not to be available to the public. I do not know of any documentation that supports justification of the interchange project as viable independent of the McIntire Road Extended project. In fact, I am unaware of any demonstration of the interchange having independent utility, clearly stated logical termini, or evidence that the interchange would be a reasonable expenditure of over $30 Million if the McIntire Road Extended project is not built. Without documentation of the statements made here, I do not find the conclusion that these projects are independent to be consistent with the NEPA requirements. Having the McIntire Road Extended project as the interchange project's no-build alternative further confuses the independence issue. In effect, this situation makes the interchange project no-build alternative become building a project that by city council resolution is not to be build without an interchange. This is an unsatisfactory set of alternatives on its face and requires restatement of the no-build alternative, or combining these projects into one project for analysis.

NOTE 10: FHWA states that "FHWA will assume responsibility for the cumulative effects caused by its undertaking (i.e. the incremental effect) but not the cumulative effects of other projects outside of its jurisdiction." But, this appears to be directly counter to FHWA guidance that defines cumulative impacts as follows:

"Cumulative impact" is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. - 40 CFR 1508.7


Steering Committee taken for a Ride on Interchange by Consultant, City

My worst fears of Charlottesville's joining the Virginia First Cities program and taking on taking on development of all transportation project development in Charlottesville were on display at the Route 250 Bypass Interchange at McIntire Road Steering Committee meeting on March 19, 2008. Due to inexperience in managing complex Federal-aid Highway projects and insufficiently qualified staff to manage projects of this complexity, I expected that consideration of project sensitive issues would not be done to current professional standards or in a timely manner. This could - and apparently did - lead to interchange project decisions being made on insufficient or incorrect information.

There is currently an ongoing investigation into the possible effects of the interchange project on historic resources that under federal statutes and regulations should have been coordinated with other project development activities at the outset of the project in late 2005. In this project, the bulk of the interchange constsruction will be located in the historic portion of McIntire Park and adjacent to the historic Rock Hill Garden. It will impact significantly these and several other National Register listed or eligible properties in the immediate surrounding area. The study team only initiated this investigation about two years late in the process, and now is eager to move the project forward without even waiting for that investigation to be completed. The next phase of the historic property consideration is to identify the projects direct, indirect, and cumulative effects on the historic properties - information essential to have available when choosing among feasible and prudent interchange alternatives.

The steering committee presentations by the consultants appeared to be more about pushing the committee to recommend one of two interchange designs developed earlier in the project to city council. This RK&K consultants clearly pressured the steering committee members to vote without the benefit of seeing how current avoidance and mitigation alternatives under consideration - and just presented to the committee for the first time - would change the level of impacts of the proposed interchange on McIntire Park and several other historic properties on or eligible for listing on the National Register of Historic Places. The message from the consultant (with apparent city staff agreement) was that it was time to act - and not to wait until the current Section 106 process is compete and a full range of project alternatives and their anticipated impacts is available.

As an engineer myself, I am troubled by the apparent conflict of interest exhibited by the engineering consultant in promoting premature action to recommend a project alternative that the RK&K firm will apparently be designing. In addition to encouraging the committee to take premature action, I believe that a number of erroneous statements were made concerning the Section 106 process that indicated the process not to be of importance in the project development and alternative selection process. One RK&K consultant stated that the Federal Highway Administration (FHWA) was not required to act to mitigate or avoid whatever impacts might be identified on historic properties suggesting (as I see it, anyway) that there is no reason to wait for the Section 106 process to be completed - so lets pick an alternative now. This is not the case. Other state and federal review agencies including the Virginia Department of Historic Resources and the National Committee on Historic Preservation may be called upon to review the FHWA decision and guide what alternatives are acceptable.

My conclusion based on the steering committee meeting of March 19 is that the city staff and the RK&K consultants jumped far ahead of the process, pressured the city council appointed steering committee to act prematurely and with incomplete information on the choice they have been asked to make, and demonstrated that the city staff as currently constituted is not able to manage effectively a project of this magnitude and complexity even with the assistance of the city's engineering consultants.

Whether the interchange project is part of, or independent of the McIntire Road Extended and Meadow Creek Parkway projects, they are all now linked together as examples of poor (and in some key aspects non-complying) transportation development projects. This project is now likely to be put before city council for determining what action to take. I believe the entire discussion at the steering committee meeting was recorded by Charlottesville Tommorow and may well be available as a podcast in the next few days. I encourage you to listen to that recording and make up your own mind on how this decision is being made - and share your thoughts with you city councilors.

photo credit: image of selected alternative C1 from Charlottesville Tomorrow blog entry.

Monday, March 17, 2008

Thoughts on St. Patrick's Day

Happy St. Patrick's Day all. Although we are supposedly all Irish today, I am one-fourth Malarky (my grandmother Sarah Malarky left County Mayo in the early 1900's for New York). Many suggest that I am actually more than one-fourth Malarky, however. I have been a bit disappointed at our local bartenders as to their willingness to serve up less than adequate pints of Guinness even on St. Patrick's Day. Perhaps having spent some time in Ireland having a well poured pint of Stout in a truly Irish Pub - be it Beamish, Murphy's or Guinness - I have seen and experienced the joy of a fine beverage in the perfect setting. Clearly, I can't expect to get the highest quality Irish stout on tap in Charlottesville (it is a long way from the brewery), or the best Irish pub experience, but I do expect to get a well presented pint ready to quench my thirst, and get at least some of the joy of a fine pint of Irish stout.

My experience is that in general, bartenders in Charlottesville do not consider presentation of a fine pint part of the customer experience. Pouring a pint of Guinness in one step and shipping it to the customer seems to be the standard here. The pint arrives with the pint glass filled with gas bubbles. Pints like this should only be provided to those who enjoy watching the bubbles subside and the contents of the glass settle time after time. This is more about science and less about thirst quenching. Like the pint above, this is not ready for drinking and when the bubbles and foam finally settle you have much less than the pint of stout you paid for and an unsightly crater of foam atop your short pint of stout.

I visited to the Guinness website and requested they send me their recommended method for pouring the perfect pint of Guinness so I could share it with my local bartenders. Here is the response from the Guinness folks in Ireland.

Dear Mr. Peter Kleeman,

Thank you for taking time to contact us regarding Guinness. We appreciate hearing from our consumers, whether comments be complimentary or critical, because your feedback is important.

In the pub or bar, the perfect pint of GUINNESS(r) Draught is served using our famous 'two-part' pour. First, start with a clean, dry glass. Pour the GUINNESS(r) Draught into a glass tilted at 45 degrees, until it is three-quarters full. Allow the surge to settle before filling the glass completely to the top. Your perfect pint, complete with its creamy white head, is then ready to drink.

At home, you should let the can chill for at least 3 hours before pouring the contents of the can into a large glass in one smooth action".

Once again, thank you for contacting us regarding Guinness. We will pass your comments on to the appropriate department for their review.


Holly K.
Consumer Response Representative

Here is a three-quarter full pint awaiting the surge to settle at the tap. As a customer, I am happy to await delivery of my pint until the second pour is added (and on occasion a shamrock image poured into the settled head on the stout - a very special treat I have only experienced outside of Charlottesville). I have had some limited success asking for a slow-poured Guinness on occasion at Rapture and at Shebeen but asking is the key.

So, all of you Irish for a day folks, I suggest you order a pint of Guinness and ask that you get a perfect pint of Guinness delivered ready to enjoy. If you enjoy Guinness year round, I hope you will help me out here and ask for a perfect pint every time. Maybe we will convince our local bartenders to provide that perfect pint of Guinness without having to ask for it every time. I'll drink to that!

Friday, March 14, 2008

New Federal Rules Posted for Protecting Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites

The Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) published new rules relating to protection of "Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites" from avoidable effects of federal transportation projects. The 34-page final rule appeared in the March 12, 2008 issue of the Federal Register (pages 13368-13401). The Route 250 Bypass Interchange at McIntire Road project is an FHWA project and these new federal rules will apply to that project. The eastern portion of McIntire Park, several historic homes, the Covenant School, and other properties in the area of the interchange project qualify for consideration under these rules.

Several key protection issues that have been part of the interchange project discussions are addressed directly in the new rule. I expect that this new information will be discussed in great detail among the RK&K Engineering consultants, the Section 106 Consulting Parties committee, the project steering committee, and the city, state, and federal officials involved in this project. In fact, there is a steering committee meeting scheduled for Wednesday, March 19, 2008 at which this will surely be a topic of consideration. And, this meeting is open to the public with an opportunity for members of the public to provide comments.

If you are interested in parkland protection or historic preservation, I hope you will consider attending this upcoming meeting and getting involved in guiding this project to a conclusion best for the quality of life in our community and our local transportation future. I also invite you to look at the text of the rulemaking. There is some very interesting description of the purpose and background behind protecting these sensitive resources that I believe is well worth reading by all interested parties.

Here is the details from the steering committee meeting announcement:

Route 250 Bypass Interchange at McIntire Road
VDOT Project No. 0250-104-103, PE-101
STP-5104 (156)

March 19, 2008
11:00 a.m. – 1:30 p.m.
(Old Visitor’s Center)
100 5th Street NE
Charlottesville, VA 22902

The City of Charlottesville announces a Steering Committee Meeting for the Route 250 Bypass Interchange at McIntire Road to be held March 19, 2008. The meeting will be a working meeting between the Steering Committee and the Project Team. Time will be designated during the course of the meeting for public comment.

For additional project information, visit

The above meeting location is accessible to persons having disabilities. Any person having special needs or requiring special aid, such as an interpreter for the hearing impaired, is requested to contact the City of Charlottesville one week in advance.

Thursday, March 13, 2008

Public Transit in the US Virgin Islands

I had a great time spending a week in the United States Virgin Islands and haven't posted any of my photos - until now. In line with the transportation theme of my recent postings, I thought you would be interested to see how most people get around on St. Thomas where I was staying. The island has a population of just over 50,000 and is about 31 square miles in area (Charlottesville is about 40,000 population and 10 square miles). Public transportation was primarily by Safari Bus - converted pickup trucks that seated up to 27 passengers. It appears that most of the Safaris were independently owned and highly customized. I don't remember seeing any two alike.

Several Safari routes existed to get residents and visitors to resorts, beaches on the Atlantic Ocean or Carribean, to Charlotte Amalie (the capital city of USVI), cruise ships, ...). I wasn't on St. Thomas long enough to become expert in the local transit system, but I thoroughly enjoyed the trips I took on the Sarafis. The large ones had five rows of seats only accessible from the driver's side of the vehicle (which is on the left, but the vehicles drive on the left side of the road so this is the curb side). Nobody seemed to mind that passengers had to climb over each other getting on and off the Safari. I found the whole experience positive and had interesting conversations with folks I climbed over.

The photos here were taken pretty much at random to show the similarities and differences among the Safaris. The fare was typically one or two dollars depending on distance traveled, and the time between Safaris was only about 10 minutes during most of the day. Headways were longer in the evening and Safaris stopped running at about 8:00 pm. I was on vacation so I have no idea how early they started from personal experience. The challenge for me was finding a Safari going where I wanted to go. Routes were not posted on the vehicles so I found I had to ask each driver if they were going where I wanted to go. I can't imagine how people who spoke languages alien to the drivers could use public transportation.

World Class Happening on Downtown Mall

I am delighted to be part of a community that is willing to speak out on issues in our world - not just in the greater Charlottesville area. I am not an expert by any means about the events commemorated on Tibetan Uprising Day, but was interested to learn about those events that took place in 1959 in Tibet from members of the Tibetan community in Charlottesville. With the boundaries of what is local and what is global being blurred ever more, I feel more a part of our global community through attending events like this.

Here are two of the photos I took of the festivities. One of the assembling crowd showing some of the colorful flags and traditional dress of Tibet. The second shows Mayor Dave Norris speaking on the importance of standing up for freedom of all people - and even quoting some of Thomas Jefferson's writings relevant to the Uprising Day event.

Pedestrian Safety Committee needs to Walk the Walk

Twelve residents and eight city staff met for about an hour in the basement of city hall to explore how Charlottesville can become a much safer place for pedestrians. Residents were from several neighborhoods and represented a variety of pedestrian interest groups. Staff from the Police Department, Public Works, and Neighborhood Development Services (NDS) were involved in the meeting as well. Jim Tolbert, Head of NDS presented opportunities the committee can pursue and what personnel and other resources the city can provide in supporting the Pedestrian Safety Committee.

A lively discussion ensued and it is clear that there are significant pedestrian safety needs in Charlottesville. This committee will need to prioritize its effort to get real safety improvements in place in the near future. We did a fair bit of 'talking the talk', but I am hopeful that the group at the meeting will do their best to 'walk the walk' - after all, what better group could you assemble to 'walk the walk' than Charlottesville's outspoken pedestrian advocates.

I am sure this group can map out excellent strategies and priorities for improving pedestrian safety. The true test is getting sufficient political will and resources to implement the committee's ultimate recommendations. You can be a big part in keeping the city on track. Do share your thoughts with city council and the budget office about investing in pedestrian safety projects. I suggested in a previous blog entry that we could dedicate some of the $4.3 million in economic development funds to this effort. Perhaps you have even better ideas to contribute. We are all pedestrians so don't be shy about getting involved. All of us will better from improved pedestrian safety.

Photos by Peter T. Kleeman 1. some of the attendees; 2. Jim Tolbert leads first meeting.

Wednesday, March 12, 2008

How we can spend some of our economic development fund

Seth Rosen's article in today's Daily Progress entitled "City officials say scrutinize fund
Rules sought on use of economic development money" suggests that there is currently $4.3 million in a fund to promote economic development. I believe it would be a terrific idea to invest some of this fund in improving pedestrian infrastsructure in the commercial centers of the city. A more pedestrian friendly environment will certainly attract people to these areas and increase economic activity.

The first meeting of a newly formed Pedestrian Safety Committee is happening today at 5:00 pm in the Basement Conference Room at City Hall to investigate some of the challenges pedestrians face in much of our city's commercial areas. I think having the city put some funding behind this effort is a timely investment in our community. I would like to know that my efforts in identifying ways of improving pedestrian safety will have a chance of actually leading to implemented improvements. I will be sure to suggest use of some of this fund as part of any safety improvement strategy this committee might develop. The better Charlottesville's commercial areas meet the needs of people, the less financial incentive we as a city will need to provide to get businesses to locate in Charlottesville. Although I am not a fan of the term, this just might be a 'win-win' opportunity for the city and the public. A few hundred thousand dollars in pedestrian improvements can likely provide benefits that the public will truly notice and appreciate.

Note: See Pedestrian Safety Committee forming post for more information.

Tuesday, March 11, 2008

Meadowcreek Parkway - what's that?

Do you mean "Meadow Creek Parkway", "McIntire Road Extended", "Route 250 Bypass Interchange at McIntire Road", some of the above, all of the above, other?

The term Meadowcreek Parkway is a term that seems not to refer to any particular project or group of projects (although it may well have in the past). It is, however, often used to cover a variety of roadway elements in combination or separately but is a source of more confusion than clarity. The total of $27 Million Route 250 Bypass Interchange at McIntire Road project Congressional earmark funding in SAFETEA-LU legislation was identified to "Construct Meadowcreek Parkway Interchange, Charlottesville" - but federal, state, and local officials claim this interchange is independent of any parkway projects (by that or any other name). The Hook recently posted an article about work beginning on the Meadowcreek Parkway to which I sent in a comment. Take a minute and visit the posting. Perhaps you have some thoughts to add on the subject, too.

Photo Source: Charlottesville Tomorrow Blog Item

Monday, March 10, 2008

Public Meeting on Route 250 Bypass Interchange at McIntire Road

If you are interested in participating in the discussion about the proposed Route 250 Bypass Interchange at McIntire Road project, the next meeting of the Steering Committee has just been announced. Here is all the information currently available. Yes, the public is permitted an opportunity to comment during the meeting. There will be discussion of the current investigation into the effects of the interchange project on several historic properties in the project area. Visit the project website to view environmental documents, plans, maps, minutes of previous steering committee meetings, and other information relevant to this and related projects.


Route 250 Bypass Interchange at McIntire Road
VDOT Project No. 0250-104-103, PE-101 STP-5104 (156)
March 19, 2008 11:00 p.m. – 1:30 p.m. (Tentative)

Location to be Determined

The City of Charlottesville announces a Steering Committee Meeting for the Route 250 Bypass Interchange at McIntire Road to be held March 19, 2008. The meeting will be a working meeting between the Steering Committee and the Project Team. Time will be designated during the course of the meeting for public comment.

For additional project information, visit

Any person having special needs or requiring special aid, such as an interpreter for the hearing impaired, is requested to contact the City of Charlottesville a minimum of three days in advance.

Meeting Announcement

Eastern Connector Blog to be Compiled in Regional Communities Posting

Photo depicts about half of my neighborhood - Source: NASA

It always amazes me how connected the world-wide-web is. My blog entry on the Eastern Connector issue is apparently (see comment at that entry) going to be included in a March 12, 2008 weekly posting of regional development issues at This blog is self-described as "A weekly compilation of news links about and for regional communities pursuing local and regional development" and has been published online since November 11, 2003. I checked out the current weekly summary and it includes a broad range of news on regional issues around the US. It is great to know that people are reading and responding to these postings!

So, if you are interested in scanning regional planning news from a variety of news sources in one spot on a weekly basis, check it out. And, let me know what you think of it. Of course, your comments on postings to this blog are always welcome, too.

Friday, March 7, 2008

The Art of Politics

In my continuing effort to blend art and politics, I created a mosaic Obama sign that is now posted on Route 250 Bypass (on private property, as required) that you can see when walking, bicycling, or driving west along the bypass just before the exit ramp for Locust Avenue.

All of the material used in making this piece were recycled or salvaged materials. The red and blue tiles were from plates I bought at Goodwill. The white and black tiles were discards from and the grout was purchased from the the Habitat for Humanities store. Even the fasteners and mounting materials were recycled material.

I hope you will check out the sign and encourage you to try your hand at mixing art and politics, too. Let me know if you construct a banner or sign or whatever as your own personal blending of art and politics and I will cruise by wherever it is to check it out. You might have some fun, encourage folks to participate in the upcoming election, and even be able to give new life to materials that otherwise would be sent to a landfill.

Thursday, March 6, 2008

Pedestrian Safety Committee forming

The city of Charlottesville is forming a Pedestrian Safety Committee to study pedestrian issues in Chalrottesville. The committee will commence on March 12, 2008 and will be exploring pedestrian safety issues in the colored area in the attached map. The Charge is an ambitious one with the following elements
  • Analyze each intersection within the area shown in detail including Signal Timing, Crossswalk Condition, Handicap Ramp Condition, Crosswalk Signal Type, and Crosswalk Signal Timing
  • Examine lighting throughtou the study area
  • Examine sidewalk conditions including Cracks/Hazards, ADA Issues, Obstructions
  • Physical safety impediments
  • Signage - location and directional
  • Develop an education campaign for both the motoring public and pedestrians
  • Evaluate existing crosswalks for safety and ADA compliance and need for additional crosswalks city-wide
  • Evaluate pedestrian safety around all parks and schools.
I have been invited to serve on this committee and have accepted. It sounds like this is a very ambitious plan of action, but I believe it is very important that pedestrian safety be improved quickly. I walk frequently in the study area and know of many spots that need pedestrian safety improvements.

I encourage you to identify some of the pedestrian areas along your path to school or work or wherever and send them to me. I will be happy to include them in the inventory of issues for consideration and hope the city will be able to invest sufficient resources to make a significant improvement in our pedestrian network now, and as part of a yearly improvement policy.

Send any pedestrian safety thoughts you have to

Wednesday, March 5, 2008

Eastern Connector - Transportation Need or Political Issue

I was interested to hear the discussion at the March 3, 2008 city council meeting about the current status of the Eastern Connector study and read Seth Rosen's article about that discussion "Is end near for Eastern Connector?" in today's daily progress. Rosen suggests that regional cooperation on exploring an Eastern Connector may be near an end. For many years, construction of an Eastern Connector for vehicular traffic between Albemarle County north of Charlottesville and the Pantops Mountain area east of Charlottesville was a condition for moving forward the proposed McIntire Road Extended through McIntire Park. It appeared to me that the recent expending of $250,000 each by Albemarle County and Charlottesville to explore alignments for an Eastern Connector was an effort to ensure that action on the connector was happening and that the McIntire Road Extended could be advanced in compliance with this longstanding condition. But, if the Eastern Connector is not going to happen (a project I thought might even be a preferrable alternative to building the costly and destructive McIntire Road Extended project and the even more costly Route 250 Bypass Interchange at McIntire Road), is Charlottesville's city council willing to move forward with the McIntire Road Extended project and bring that anticipated traffic through an already congested part of our Charlottesville road network?

Charlottesville City Council approved "A Resolution Authorizing the Conveyanace of a Temporary Construction Easement in McIntire Park to the Commonwealth of Virginia upon the Completed Acquisition of Replacement Park Land" on October 1, 2007 that included as one of several conditions prior to actually granting this easement for road construction is that Albemarle County will "commit to continued development of alignment and funding scenarios for the Eastern Connector."

Without an Eastern Connector, it appears that the October 1 Council Resolution becomes moot, and Council must reconsider its position on building a road through McIntire Park - be it called the Meadow Creek Parkway as it is in the council resolution (a name that currently refers officially to a road connecting Melbourne Road and Rio Road that is totally in Albemarle County), or McIntire Road Extended as appears to be the current official name for this road project.

I and others have argued for many years that the interrelationship among the Eastern Connector, McIntire Road Extended, Meadow Creek Parkway, and the Route 250 Bypass Interchange at McIntire Road should recognized and the projects be combined into one project to study the broad range of transportation investment choices that are available to address the current and future transportation needs of both Charlottesville and Albemarle County. Treating these projects all as independent projects, many believe, is a way of avoiding protection of our parks (McIntire Park, Bailey Park, Pen Park), and cultural and historic resources that would be required under the National Environmental Protection Act, the National Historic Preservation Act, and Section 4(f) of the US Department of Transportation Act in a combined, federally funded project.

Only through a comprehensive evaluation of available transportation choices for meeting the transportation needs among Charlottesville, and the areas in Albemarle County north and east of Charlottesville can we truly identify solutions that meet our long-term transportation needs while being sensitive to the natural, cultural, and historic resources that are such a big part of our local quality of life. I hope Charlottesville city council and the Albemarle County board of supervisors will explore combining these now separate projects into one combined project and work together rather than in opposition in this effort. Hope is a theme in local politics today, but to keep this hope alive I suggest you share your thoughts with councilors and supervisors.

NOTE: Photo from the Eastern Connector Corridor Study website.

Tuesday, March 4, 2008

Discussion Activity on Use of Congressional Earmark Funds

I was delighted to get some discussion activity concerning the issue of using Congressional earmark funding (like the total of $27 million for the Route 250 Bypass Interchange at McIntire Road (actually identified as the Meadowcreek Parkway Interchange) in SAFETEA-LU transportation funding legislation) as part of the need to move a project forward. After posting the first item in this discussion (below) I did a bit of 'legal' research into the issue that I posted in my blogpost on Tuesday March 3, 2008. It appears that the general sense of other NEPA practitioners is that a project really needs to have a sufficient purpose and need identified for the project to be a reasonable undertaking - independent of any congressional earmark funding. Clearly, the project purpose and need statement has other elements in it beside existence of congressional earmark, but I believe including the notion of congressional desire to build this interchange is not appropriate in this project. Senator John Warner facilitated getting this earmark into the legislation. I wonder if any other members of congress have any opinion on whether or not this project is of any transportation related benefit to our community, our region, our state, or our nation - or if in fact they even read the list of earmarks and knew that this item was in the list.

Federal Highways official often provide very careful interpretation of federal legislation and their own regulations and guidance documents in defending their positions. I am quite frankly surprised that our Virginia Division of FHWA supports including congressional earmark funding as a part of the project purpose and need statement without providing any justification.

Here is the discussion so far (as of about 3:30 pm on March 4, 2008) for your consideration - along with my previous blog entry.

Peter T. Kleeman, Techniquest - Transportation and Environmental Consulting,
02/29/2008 03:56 PM
I have been searching online for guidance on the appropriateness of using the fact that a transportation project has federal earmark funds as a demonstration of need for that project in a Purpose and Need statement. I have had conversations with various FHWA staff in the past about this and believe that the earmark is only to ensure that funding is available for project development if an adequate purpose and need exists. But, that congressional funding as an earmark is not in itself any demonstration of project need.

I have not been able to find any statement to this effect in writing on the FHWA website. What is FHWA's policy on this? Is availability of earmark funds an appropriate indication of Need for a project or not?

Any written guidance on this matter would be greatly appreciated.

Peter T. Kleeman -

F. Yates Oppermann, CDOT,
03/03/2008 12:43 PM
This issue came up recently here in Colorado.

There is guidance that says that legislative requirements is a legitimate purpose and need for a project. However, this is different from just having available federal funding. it is intended, i believe, to allow you to identify federal, state, and local legislative actions that require implementing. As a hypothetical, "retrofit the existing tunnel to withstand terrorist attacks as identified in HB #######."

While I have not been able to find any formal guidance on this, I explain it this way: Suppose you were to go back and ask for more money in the new legislation? Would you say: "We need more money because we need to spend the money you already gave us?". No, you would point to the underlying reason why the earmark was requested in the first place. This is the Purpose and Need for the project.

03/03/2008 02:26 PM
Legislatively, is an earmark a "legitimate purpose and need for a project"?

Or is it simply guaranteed funding?

It still seems that a project's P&N would need to be able to stand on its-own merits.

Goodness knows that not every recent project with earmarked congressional appropriations can do that!

03/04/2008 01:31 PM
I also think you have to look at the underlying purpose of a "Purpose and Need" statement. The P&N plays a key role in defining the "alternatives" of a project, if earmark funding was the sole reason for establishing a P&N, I'd imagine that does not provide much assistance in defining alternatives, let alone defending them if challenged. With that said, I don't know how well a "project" must be defined/described when applying for federal "earmark" grants? Is there a requirement to show need and define a purpose in the grant application process for earmarks? If so, that sounds like where you should be looking at to help develop a P&N.

I agree with the comment, regarding legislation (federal or state) that requires certain infrastructure to be enhanced or built as a "Purpose" behind a particular project.

AASHTO has a good handbook on P&N. I did not read anything in it regarding secured funding as an only basis for P&N in NEPA. Please pass along any documents you may find that suggest as such. Thanks!

Monday, March 3, 2008

Is a Federal Earmark for Route 250 Bypass Interchange a Mandate for Action?

This posting may appeal to the transportation planners who read this blog - others be forewarned. I do find using earmarked funding as a congressional mandate for action to be totally inappropriate - and this is what is being done on our Route 250 Interchange at McIntire Road project. Well, here goes.....

Congressional earmarks have been a topic of much discussion of late and is an issue in the Route 250 Bypass Interchange at McIntire Road project locally. Funds for the interchange were authorized in the SAFETEA-LU legislation (Public Law 109-59) in two separate sections. Section 1702 provided $25 million and section 1934 provided an additional $2 million. The question is if inclusion of funding for a project in either of these sections constitutes a mandate for construction of the interchange. At the first meeting of the Section 106 Consulting Parties Coordination Meeting on November 26, 2007 I stated that I do not feel the Purpose and Need was appropriate, and that several elements, including the SAFETEA-LU earmark, community mobility, and developing a context sensitive gateway should not be part of the purpose and need for the project. I received a response to this comment in a memorandum from Angela Tucker, the Charlottesville project manager (prepared by Eric Almquist the project planner for the consultant) as follows:

"The purpose and need was developed by the project team with considerable input from the Steering Committee (including local planning officials), the Thomas Jefferson Planning District Commission, the public (including two workshops), VDOT, and FHWA. It follows closely guidance that is presented at the FHWA website:

The Congressional earmark is a representation of Congressional intent and a federal agency needs to consider the views of Congress in arriving at a decision. As such, it is a relevant and an important component of the purpose and need for the project. Further, Federal legislation is a valid item for the purpose and need of a project discussed at the website above."

The FHWA website does include a brief statement relating to legislation but it is quite different from any establishment of a basis for construction the project. The FHWA states in one item under the heading:

"The following items may be listed and described in the purpose and need statement for a proposed action. These are by no means all-inclusive or applicable in every situation. They are intended as a guide.
  • Legislation — Explain if there is a Federal, state, or local governmental mandate for the action."
This guidance basically says that if a legislative mandate exists, then it is appropriate to include that mandate be "listed and described" in the purpose and need statement But does appropriation of funds through SAFETEA-LU constitute a mandate for the project to be constructed? I find no evidence of this constituting a mandate. In fact, the relevant section of the United States Code under which this decision should be reviewed is identified in the section in which the $25 million was allocated as 23 USC 117. I have included the relevant part of section 1702 of Public Law 109-59 below (I included all of the text and the $25 million item description but removed all of the other projects included in the table listing of projects with funds authorized). These funds are in effect earmarked for possible use as described in 23 USC 117 through fiscal year 2009.

I have included section 1934 of Public Law 109-59 (eliminating all other projects in the table listing) where the allocation of the additional $2 million is included. Clearly there is no mandate for action included in this section, and in fact indicates that these funds are to be processed in the same manner as funds allocated for Federal Highway programs provided for in this legislation except that these funds will not expire at the end of fiscal year 2009.

If you wish to explore the relevant sections of Title 23 of the United States Code and the SAFETEA-LU legislation, you can link to them at

Unsatisfied with the response to this issue from the interchange project team I posted an inquiry about using earmarks as being a congressional mandate to a Federal Highway Administration discussion website on Purpose and Need issues. I am hoping I will get some discussion among other transportation development professionals on this topic.


Public Law 109-59
Aug. 10, 2005


Subject to section 117 of title 23, United States Code, the amount listed for each high priority project in the following table shall be available (from amounts made available by section 1101(a)(16) of this Act) for fiscal years 2005 through 2009 to carry out each such project:

Highway Projects
High Priority Projects

No. 5044
Construct Meadowcreek Parkway Interchange, Charlottesville VA


(a) Authorization of Appropriations.--
(1) In general.--For each of fiscal years 2005 through 2009, there are authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) such sums as are necessary to make allocations in accordance with paragraph (2) to carry out each project described in the table contained in subsection (c), at the amount specified for each such project in
that table.
(2) Allocation percentages.--Of the total amount specified for each project described in the table contained in subsection (c), 10 percent for fiscal year 2005, 20 percent for fiscal year 2006, 25 percent for fiscal year 2007, 25 percent for fiscal year 2008, and 20 percent for fiscal year 2009 shall be allocated to carry out each such project in that table.

(b) Contract Authority.--
(1) In general.--Funds authorized to be appropriated to carry out this subsection shall be available for obligation in the same manner as if the funds were apportioned under chapter 1 of title 23, United States Code, except that the funds shall remain available until expended.
(2) Federal share.--The Federal share of the cost of a project under this section shall be determined in accordance with section 120 of such title.

(c) Table.--The table referred to in subsections (a) and (b) is as follows:

Transportation Improvements

No. 408
Construct Meadowcreek Parkway Interchange, Charlottesville VA