March 16, 2009

IN REPLY REFER TO: U.S. Route 250 Bypass Interchange and McIntire Road Extended;
Response to letter dated February 13, 2009;
City of Charlottesville, Virginia;

Ms. Andrea C. Ferster
2121 Ward Court, N.W., 5th Floor
Washington, D.C. 20037

Dear Ms. Ferster:

The Federal Highway Administration (FHWA) is in receipt of your comments submitted on behalf of the Coalition to Preserve McIntire Park regarding the Environmental Assessment/Section 4(f) Evaluation for the Route 250 Bypass Interchange at McIntire Road. Although the comment period on the Environmental Assessment closed over fourteen months ago, we will address your comments in this letter. Further, since your letter raises issues that we have already addressed repeatedly during the past couple of years, we are merely reiterating our agency's position here and the rationale for it. Finally, we're not going to engage in a back-and-forth of citing to and quoting court cases out of context. Should you nee to contact FHWA's Office of Chief Counsel please do so.

To begin, some history is in order to provide a more comprehensive picture of the project-related developments that have occurred over the years because it is relevant to the decisions that our agency has made. The McIntire Road project originated at the local level in the late 70's when the City of Charlottesville (City) requested money from the Virginia Department of Transportation (VDOT) to construct it. [Note: See January 18, 1978 Resolution by Charlottesville City Council.] Soon after, the City and VDOT held a public hearing and approved a location for the project. [Note: Location public hearing held in the Walker Middle School in the City of Charlottesville, Virginia, on June 27, 1979, at 7:30 p.m. for the purpose of considering the proposed location of McIntire Road from the intersection of Preston Avenue in the City of Charlottesville to the intersection of Rio Road (Route 631) in Albemarle County. The Commonwealth Transportation Board passed a location resolution on December 13, 1979.] In 1983, VDOT requested Federal-aid funds for the project and in 1985, FHWA issues a draft EIS/Section 4(f) Evaluation for McIntire Road, which had termini at Rio Road in Albemarle County and Preston Avenue in the City. The draft EIS/Section 4(f) Evaluation looked at three alternatives; two of the alternatives went through the park while the third alternative avoided the park by skirting it on the east. One of the alternatives in McIntire Park proposed a diamond interchange at the Route 250 Bypass while the other two alternatives proposed an at-grade intersection. In 1987, the project was put on hold over concerns on the part of the City about impacts to the downtown area and pending the outcome of the Route 29 Corridor Study. [Note: Charlottesville-Albemarle MPO passed a resolution dated February 18, 1992 amending the CATS plan including reference to the McIntire Road Extension project in a sequencing of metropolitan area projects in what is termed the Three Party Agreement among the City of Charlottesville, County of Albemarle, and the University of Virginia). In late-1992, as the Route 29 Corridor Study was winding down and a preferred alternative had been identified, the project was re-initiated at the request of the City with the improvements south of the Route 250 Bypass eliminated. In 1993, Route 250 Bypass eliminated. In 1993, a NEPA re-evaluation was prepared and in 1994, FHWA completed the re-evaluation concluding that a supplemental draft EIS was not needed. Later in 1994 [Location Public Hearing held in the Charlottesville High School on April 26, 1994], another public hearing was held for the project depicting its revised southern terminus at the Route 250 Bypass. In September of 1994, the Commonwealth Transportation Board (CTB), with the support of the City, approved the alignment through the park which included an at-grade intersection at the Route 250 Bypass an no improvements south of the bypass. [See September 15, 1994 Commonwealth Transportation Board Location Approval Resolution.] In 1995, FHWA made a decision to downgrade the EIS to an Environmental Assessment (EA) based on the reduced scope and determined that Section 4(f) did not apply to the use of McIntire Park by the roadway. FHWA published a notice in the Federal Register informing the public of its decision to downgrade the EIS to an EA, and VDOT notified the City. A month later, FHWA issued an EA for the project and a finding of no significant impact (FONSI), thereby completing the NEPA process. FHWA's FONSI covered a four-lane facility with a variable-width median and at-grade intersections at all crossings including the project's intersection with the Route 250 Bypass. In 1997, VDOT, in accordance with 23 USC § 145(a), decided to advance the project without federal funds, and FHWA determined that the project had not been irrevocably federalized. [See December 22, 1997 FHWA letter to Mayor Katherine E. Slaughter.] From 1997 to 2005, VDOT continued to work with the City as well as the County to develop the project without any FHWA involvement and within the limits of the project approved by the CTB. During this time, substantial changes were made to the scope of the project. For example, the project was reduced in scope from a four lane roadway with a variable-width median to a two-lane parkway without a median. However, the project continued to be developed with an at-grade intersection at the Route 250 Bypass. In 2005, Congress passed the highway authorization bill known as SAFETEA-LU, which included $27 million in demonstration funding for an interchange at the intersection of the Route 250 Bypass and McIntire Road. In 2006, VDOT and the City approached FHWA to initiate the NEPA process for the interchange project. FHWA reviewed the project circumstances and determined that the interchange had independent utility and as such, would be responsible for environmental approvals for the interchange project only. FHWA also determined that the VDOT/City project through the park was sufficiently developed so that it could be considered a committed project and used to establish logical termini for the interchange project. In 2007, the City granted a construction easement to VDOT for the construction of the McIntire Road project through the park consistent with the design that included an at-grade intersection. Later in 2007, FHWA approved the EA/Draft Section 4(f) Evaluation for the interchange.

First, FHWA would like to address your contention that there would be no need for an interchange but for the construction of the McIntire Road Extended project, calling into question the independent utility of the FHWA action. In other words, you believe that 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 roadway system. The conclusion that the McIntire Road Extension project does not create the need for the U.S. Route 250 Bypass interchange project was further confirmed by an analysis conducted by the City's consultant which shows that the existing intersection would function at level of service F in the design year if the McIntire Road Extension project is not constructed, demonstrating that a need exists for an interchange apart from the McIntire Road Extension project. Referencing level of service information under existing conditions from the Environmental Assessment is disingenuous and immaterial since the purpose and need of the project is based on design year conditions.

You also take issue with FHWA's decisions to consider the McIntire Road Extension project a committed project and therefore, usable as a logical terminus for the interchange project. FHWA does not agree with your assessment. The McIntire Road Extension project has been fully developed over the years with an at-grade intersection in mind. When the draft EIS was developed for the McIntire Road project, two of the three alternatives included at-grade intersections. When the EIS was downgraded to an EA and FHWA issued a FONSI in 1995, the scope of the project included an at-grade intersection at the Route 250 Bypass. As VDOT developed the project as a state-funded project shortly thereafter, it was designed with an at-grade intersection at the Route 250 Bypass. When VDOT secured a temporary construction easement from the City through the park, the easement was consistent with the design for an at-grade intersection. Therefore, the project has been planned with an at-grade intersection for over ten years. When Congress set-aside funding for an interchange, FHWA evaluated the planning and development that had occurred with the McIntire Road Extended project and determined that it was sufficiently developed to be considered a committed project being carried out by others. Given these developments, it is wholly reasonable to consider the McIntire Road Extended project a logical terminus for the Route 250 Bypass interchange given the actions taken by others to advance it.

As you are aware, NEPA doesn't dictate how a project is contracted or constructed. Likewise, contracting decisions made by the state or a locality on how a project or projects will be constructed do not retroactively invoke NEPA or the requirements for logical termini and independent utility. The state or a locality has the discretion to combine multiple projects with multiple sources of funding into a single contract if they so desire, and these construction contracts are not required to demonstrate logical termini and independent utility. When the City of Charlottesville granted a temporary construction easement to VDOT to construct the McIntire Road Extension through McIntire Park, they conditioned it upon VDOT not constructing an at-grade intersection because the interchange project wasn't sufficiently developed to allow them to determine the limits of an easement for its construction. However, local decisions like these regarding the sequencing and timing of the construction of projects don't 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 usable 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 a committed project being developed by others, this design and proposed sequencing of construction has no bearing on FHWA's determination regarding independent utility. When FHWA determines that a project has independent utility and represents a reasonable expenditure if no other improvements are made, it doesn't mean that other improvements will not be made.

Finally, we will address your unfounded assertion that "there is strong evidence that the project was deliberately segmented in order to evade federal environmental laws.["] Despite the fact that Meadow Creek Parkway was originally (and continues to be) planned as a single facility. [T]he FHWA deliberately "scaled back" the scope of the project considered to be the "federal action" so that "the potential significant adverse environmental impacts identified in the EIS and associated with the proposed project were eliminated." If there is "strong evidence" above and beyond this quote, please provide it. When quoting from project records, it is important to establish the context since it is the context that establishes the meaning of the quote. In this case, the quote in question from our December 22, 1997, letter to the Mayor of Charlottesville, Katherine Slaughter, was an explanation of why the EIS for McIntire Road was downgraded to an EA. As we demonstrated by recounting the history of the development of the project, eliminating improvements south of the Route 250 Bypass originated with the City and not FHWA. Further, when dealing with segmentation, there is an inherent assumption that the project or portion of the project being segmented will be developed as a separate project; hence, the segmentation. However, that is not the case here. There is no project representative of the improvements south of the Route 250 Bypass that this agency is involved with, that is being developed by others, or is programmed in the MPO's Transportation Improvement Program and constrained Long Range Transportation Plan. Therefore, FHWA's decision in the early 90s did not represent segmentation. Finally, using your rationale, anytime FHWA were to select the no-build for a project or part of a project due to environmental impacts, it would be considered segmentation. That rationale is inconsistent with NEPA.

To summarize our position and previous determinations, FHWA considers the Route 250 Bypass Interchange project to be a project with independent utility that will serve a purpose and address a need and can function on its own if no other improvements are made. The McIntire Road Extended project being carried out by others has been developed without FHWA involvement for over a decade with an at-grade intersection, and it represents a committed project usable as a logical terminus for the Route 250 Bypass Interchange project. As such, it is wholly reasonable to develop the interchange project and assess environmental impacts accordingly based on the assumption that the McIntire Road Extended project will be in place. There is nothing in your comments that gives us cause to change our position and previous determinations.

If circumstances regarding the construction of the McIntire Road Extended project were to change, and VDOT decided that it would no longer construct the project, then we would take that new information into account and redevelop the interchange project accordingly. But as for the present, the interchange project is being developed based upon the most up to date information related to the McIntire Road Extension project, which is scheduled to be advertised for construction in the Spring of this year. Likewise, if circumstances were to change regarding the construction of the interchange project, VDOT would no doubt make the appropriate changes to its project to construct an at-grade intersection at the Route 250 Bypass. Therefore, FHWA is not having it both ways. Assertions to the contrary, the purpose and need of the Route 250 Bypass interchange is not predicated on the McIntire Road Extended project as we have demonstrated above. Instead, the design of the interchange accommodates the McIntire Road Extended project. Since an interchange requires the construction of many structures, common sense dictates that it be designed and developed to account for all other committed improvements in an area. As we stated in our September 4, 2008, letter to Peter Kleeman, which you quoted from, "...to not include McIntire Road Extended in the no-build (and build) alternatives for the Federal action would be poor planning for compatibility with a project in this stage of design. Furthermore, advancement of the two projects simultaneously so that compatibility may be achieved does not equate to the two projects being dependent on one another - it simply means that the design of one does not preclude the design of the other, which is consistent with the way other projects are developed in Virginia, especially those involving bridges which have a different design life than adjoining roadway improvements."

Sincerely,

Roberto Fonseca-Martinez
Division Administrator

[Signature: Edward S. Sundra]

By: Edward S. Sundra
Planning and Environment Program Manager