December 22, 1997

Katherine E. Slaughter
Office of the Mayor
City of Chrlottesville
P.O. Box 911
Charlottesville, Virginia 22902

Dear Mayor Slaughter:

We have received your December 4, 1997, letter (and the December 10, 1997 letter noting minor corrections) and welcome the opportunity to respond. Previous letters by Mr. Richard Collins regarding the Meadowcreek Parkway were addressed to the Washington Office of FHWA. Because the Washington Office does not, as a normal practice, get involved with specific projects, they were not in a position to respond to many of the points raised by Mr. Collins. Once the Washington Office received from the Virginia Division Office of FHWA information concerning this proposed project and the related environmental studies, the Washington Office personnel chose to focus their response on the main issues of whether FHWA's current involvement in the project was sufficient to irrevocably federalized the project and the applicability of Section 4(f).

We wish to further respond by addressing and clarifying several of the issues that have previously been raised by segments of the public in correspondence and the local newspaper.

First, there is no law or requirement to prepare an Environmental Impact Statement whenever a project has a Section 4(f) impact. Section 4(f) came into existence with the Department of Transportation Act of 1966 (DOT Act). The National Environmental Policy Act which required the preparation of detailed statements on the environmental impacts of proposed major Federal actions wasn't signed into law until 1970 (although it is dated 1969). It wasn't until the mid-1970s, approximately ten years after the DOT Act of 1966, that the Council on Environmental Quality promulgated the regulations implementing NEPA in 40 CFR which provided detailed requirements for preparing Environmental Impact Statements. Therefore, there is no direct link between the Section 4(f) statute and the requirement to prepare an Environmental Impact Statement. In fact, the majority of projects with Section 4(f) impacts that we are involved with are processed with either Environmental Assessments or Categorical Exclusions. Regardless of the type of environmental document prepared for a project, the information and content of the Section 4(f) Evaluation remains constant. Preparing a Section 4(f) Evaluation with an Environmental Assessment does not result in any less rigorous of a review than if one was prepared in conjunction with an Environmental Impact Statement.

Second, the draft Environmental Impact Statement was not converted to an Environmental Assessment because FHWA made a decision that Section 4(f) did not apply to the park. The EIS was converted because the scope of the project had been scaled back from 2.3 miles to 1.4 miles by eliminating the portion of the proposed project south of the Route 250 Bypass. By reducing the scope, the potential significant adverse environmental impacts identified in the EIS and associated with the proposed project were eliminated. This decision was not made arbitrarily by the Division Office, but was coordinated within FHWA, including our Regional Counsel's Office.

Third, it has been argued that the circumstances surrounding McIntire Park differ from the example on joint development given in the question-and-answer section of FHWA's "Section 4(f) Policy Paper." While we do not agree with this argument, the situation described in the policy paper is not the only case where joint development would negate the need for Section 4(f) analysis. As noted in the introduction to the question-and-answer section of the document, the "examples used describe the situations most often encountered." Other situations are reviewed on their merits. In concluding that Section 4(f) analysis is not needed, FHWA does not have to establish that the situation involving McIntire Park is the same as the situation described in the "Section 4(f) Policy Paper." Rather, the policy paper helps officials evaluate other situations including situations involving joint development where the applicability of Section 4(f) may be a question.

Fourth, FHWA reviewed all relevant and available information regarding McIntire Park prior to making its decision that Section 4(f) did not apply to the use of the park by the roadway. FHWA was fully aware of the history of McIntire Park and the fact that McIntire Park has been serving as a park and play ground for the white peiple of the City of Charlottesville" (Resolution dated January 18, 1926, thanking Paul McIntire for the gifts of two parks). FHWA does not dispute the significance of McIntire Park, however, significance is not an issue when joint development is involved (whereas it was an issue with the softball field adjacent to the park). In arriving at a decision on McIntire Park, the following information was important to that decision:

• On September 2, 1975, the City of Charlottesville adopted the Recreation and Open Space Study as an element of its Comprehensive Plan. The Study reserved a right-of-way through McIntire Park for the McIntire Road Extension.
• The Recreation and Open Space Study represented a new development plan on a publicly owned tract of land known as McIntire Park. The McIntire Road Extension would play an integral part in this development by providing new access to the eastern half of the park -- and thus the road extension became an integral part of the park development plan. In addition, this new development plan would reconfigure the golf course on the remaining land. This park development decision was made without any plan to use Federal-aid highway funds for the park development/highway improvement. More recent documentation reviewed by FHWA showed that the City no longer plans to maintain a golf course at this location, recognizing that other existing golf courses in the area are sufficient for meeting the golfing needs of the public.
• The decision on the part of the City of Charlottesville to adopt the Recreation and Open Space Study with a right-of-way reserved for the Meadowcreek Parkway was made eight years in advance of any decision to seek Federal-aid highway funds on the project in the development of the Draft EIS. There is no evidence that would lead us to believe that the City of Charlottesville adopted the Recreation and Open Space Study when it did with the intent of circumventing the provisions of Section 4(f).

Based on these facts, FHWA concluded that Section 4(f) did not apply to the use of McIntire Park by the Meadowcreek Parkway because the parkland was reserved for highway purposes by officials with jurisdiction over the property in accordance with appropriate local planning requirements long before any intent to seek federal funds.

Fifth, converting the Environmental Impact Statement to an environmental assessment was not done in a vacuum without any attempt to notify the public. Once this decision was made, VDOT notified the City with a letter dated March 9, 1995, of their intentions, and a notice was published in the Federal Register on March 14, 1995, and in the local newspaper.

We would also like to clarify the issue of the federalization of projects which was raised in FHWA's October 6, 1997, letter from Eugene Cleckley (signed by Fred Skaer) to Mr. Collins. A state highway project is considered to be irrevocably (unless there is a congressional defederalization action) federalized when, after completion of the environmental process, a State seeks and receives federal funding for final design, right-of-way and/or construction activities. In other words, although a project may be developed with the assumption that Federal-aid funds will be used throughout its development (and presented to the public as such), a project isn't technically considered a federal project unless the above condition is met. In accordance with our regulations contained in 23 CFR 771.113(a), the completion of an environmental document does not commit the FHWA to approve any additional funds for the project - there are additional requirements that must be met for the use of those funds. The federal courts, including those in the Fourth Circuit in which Virginia is located, have held that federal funding and/or participation in the environmental process does not irrevocably federalize a project (See Maryland Conservation Council v. Gilchrist, 808 F.2d 1039 at 1041 (4th Cir., 1986)). In Virginia, VDOT routinely requests FHWA take the lead on the development of environmental documents even though VDOT may have not yet made a commitment to use Federal-aid funds for any aspect of that project. VDOT takes this approach in order to retain the flexibility to use Federal-aid highway funds or any other funding sources that may become available in the later stages of a project as project scheduling and funding priorities become more defined. However, the federalization of a project is an irrelevant issue with respect to the Meadowcreek Parkway and additional environmental review as indicated in FHWA's October 6, 1997, letter to Mr. Collins. In that letter, it states that, "From our standpoint, the project is no longer a major Federal action requiring a NEPA analysis, but issuance of the FONSI closed out the analysis that had begun a decade earlier."

To address the specific requests made in your letter, we offer the following responses:

(a) FHWA reconsidered its determination with respect to the applicability of Section 4(f) to McIntire Park earlier this year at the request of VDOT. Based on a reevaluation of all the information in our files, consultation with our legal counsel, and review of additional information provided by VDOT including information from Mr. Clyde Gouldman, City Attorney, we have reaffirmed our original Section 4(f) decision. However, in view of the fact that the project is not now considered a Federal-aid project, the provisions of Section 4(f) are not applicable.

(b) FHWA completed its environmental review of the project when the Finding of No Significant Impact (FONSI) was issued on April 13, 1995.

(c) In light of our response to (a) and (b) above, issuing a "no feasible and prudent alternative" decision isn't necessary.

(d) Our Washington Office, on the advice of legal counsel, has found that FHWA has not been sufficiently involved in Phase I of the Meadowcreek Parkway to make it a federal project. Although Phase I was initiated with the assumption that it would be a federal project and Federal-aid funds would be used for right-of-way and construction, the decision by VDOT to use state funds on right-of-way and construction was made at a sufficient point in time such that FHWA no longer has any authority over the project as it progresses to construction. The fact that the environmental process was completed irrespective of VDOT's decision provides evidence that VDOT did not make this decision to circumvent Section 4(f) or other environmental laws. To conclude, a project is considered either federal or non-federal: an individual project cannot be further broken down into federal and non-federal components. Therefore, Phase I is not considered a federal project. With regards to Phase II, FHWA has not had any involvement in the planning or development of this project nor have we been notified by VDOT of any desire to use Federal-aid funds later for right-of-way acquisition, or construction. Therefore, Phase II is not considered a federal project at this time, either.

As indicated in their October 6, 1997, letter, to Mr. Collins, our Washington Office stated that "even if VDOT had continued using Federal-aid funds for final design, right-of-way, and construction, the Virginia Division Office properly determined that Section 4(f) was not applicable. Based on the information provided to us, our Division Office's determination was based upon a reasonable interpretation of the "Section 4(f) policy Paper" guidance and upon a reasonable application of the law and regulation." Therefore, although Mr. Collins and others may disagree with the legal opinion of our Washington Office regarding the federalization of this project, the fact remains that our Washington Office believes that the Virginia Division Office made the right decisison regarding the applicability of Section 4(f) to McIntire Park and the environmental review has been completed accordingly. Therefore, whether this project is considered a federal project or not is a moot point from the standpoint of the environmental review which has been completed. The only implication that the federalization of the project would have at this point is whether FHWA would continue to have control and authority over right-of-way acquisition and constsruction.

We thank you for the opportunity to respond to the concerns of the public and local officials and hope this letter addresses those concerns that have been raised as well as clarify issues where there may have been some misunderstanding. The Virginia Division Office's Planning and Environmental Manager, Mr. J. Bruce Turner, is available to discuss this project and in fact attended the November Metropolitan Planning Organization Meeting to discuss it. Unfortunately, the MPO met in a private session to discuss other issues, and Mr. Tuirner was unable to discuss the project or answer any questions. If you still have concerns on the environmental process and desire to meet with him to discuss these concerns, he can be reached at (804) 281-5111.

Note: This letter was reconstsructed from a copy of the original letter by Peter T. Kleeman, April 6, 2003, and is believed to be an accurate representation of the original text.