When planning Federal-aid Highways, What Constitutes the No-action Alternative?

Here is another letter I sent to the Federal Highway Administration (FHWA) regarding what constitutes the no-action alternative that is required to be considered among the set of alternatives considered for any Federal-aid Highway project. The Route 250 Bypass Interchange at McIntire Road is just such a project and I have been questioning how the proposed no-action alternative complies with requirements of the National Environmental Policy Act (NEPA). Assumptions about what is considered to be already built for this project (all projects with full funding for construction included in what is called the Constrained Long-Range Plan (CLRP) as FHWA sees it) appear to be inconsistent with FHWA's own guidance. I consider this a serious issue and continue to seek clarification for FHWA as to how the current no-action alternative complies with NEPA. No word back from FHWA yet, but I will post the response when I get it. It is my belief that the no-action alternative assumed for this project leads to dramatically limiting the range of alternatives appropriate for consideration in meeting our local transportation needs and results in illegal segmentation of the interchange from the yet finalized McIntire Road Extended project.

If our community is going to approved spending many millions of our available Federal, State and local transportation dollars on this combination of projects, it is essential that we plan in a comprehensive way and consider adequately the impacts these projects have on our natural, historic, and recreational resources. I believe the current effort falls short of the minimum levels of planning and environmental consideration.

Here is the letter of October 10, 2008.

Peter T. Kleeman
407 Hedge Street, Charlottesville VA 22902
(434) 296-6208
peter.kleeman@gmail.com

October 10, 2008

Roberto Fonseca-Martinez, Division Administrator
FHWA Virginia Division
400 North 8th Street, Suite 750
Richmond, Virginia 23219-4825

Dear Roberto Fonseca-Martinez:

Thank you for your letter in response to my August 18, 2008 letter concerning the Route 250 Bypass Interchange at McIntire Road project. In your response you define the no-build alternative (often referred to as the "no action" alternative) to be quite different from how it is defined in FHWA's own guidance. I have searched Council on Environmental Quality, FHWA, and other NEPA related websites online in an attempt to clarify what constitutes an appropriate no-action alternative for this interchange project.

In your letter to me dated September 4, 2008 you state the following: "When FHWA prepares a NEPA document, the no-build alternative is defined as all committed projects from the CLRP (i.e. those projects funded for construction) minus the project being subjected to NEPA." You then state that "it is the CLRP that is the controlling document for determining whether or not a project is considered committed."

I searched FHWA online material, FHWA guidance documents, United States Code, Title 23 and FHWA regulations and find no definition of committed project in terms of the CLRP or justification for the CLRP to be the "controlling document for determining whether or not a project is considered committed." FHWA guidance appears to be silent on any connection between a committed project (no matter how defined) and what projects are assumed to be part of a no-action alternative.

FHWA's current guidance document entitled "GUIDANCE FOR PREPARING AND PROCESSING ENVIRONMENTAL AND SECTION 4(F) DOCUMENTS" (FHWA TECHNICAL ADVISORY T 6640.8A available online at "http://environment.fhwa.dot.gov/projdev/impTA6640.asp" describes the no-action case as follows:

"No-action" alternative: The 'no-action' alternative normally includes short-term minor restoration types of activities (safety and maintenance improvements, etc.) that maintain continuing operation of the existing roadway."

Although this is not a formal definition, it is the only definition I could locate that suggests what would normally be included in a no-action alternative for a Federal-aid Highway project. There is not even a hint in this FHWA guidance material that funding for construction being included in a CLRP for a particular project would support including that project as part of the no-action alternative network description.

In fact, projects described as examples of efforts toward streamlining the environmental review process on the FHWA website list a variety of different assumptions for the no-action network, but without any indication of a basis for appropriateness of those assumptions regarding use of committed projects in the no action network other than several projects that adopt the definition from Technical Advisory T6640.8A provided above.

In addition to not finding any Federal statute, regulation, or guidance indicating a connection between financially committed projects – no matter how defined – and what should be included in specifying the no-action alternative it appears that inclusion of all projects included for construction in the CLRP aside from the project for which the environmental document is being prepared in the no-action alternative eliminates the possibility of exploring the issue of project segmentation. If all projects included for construction in the CLRP are assumed to be in the no action alternative, the only project in the entire network not assumed in place would be the project (or segment) under study. Other projects that are closely integrated with the project under study and that influence traffic assumptions, range of feasible project alternatives, opportunities for avoidance of Section 4(f) or Section 106 properties, and other impact analysis results are rendered fixed in design and stifles any opportunity to identify new alternatives that better meet regional transportation goals with fewer environmental impacts. This appears inconsistent with the NEPA requirement that projects not be segmented and eliminates the opportunity for project designers to identify new alternatives that could meet transportation purpose and need without unnecessary impact on natural, cultural, and historic resources.

I request that you provide me current guidance, regulations, or statutes that constitute the basis for no-action alternative specification beyond the guidance provided in TECHNICAL ADVISORY T 6640.8A.

Sincerely,

Peter T. Kleeman