Lettter of September 4, 2008 from FHWA Virginia Division to Peter Kleeman regarding Route 250 Bypass at McIntire Road project compliance with NEPA, Section 4(f), and Section 106.

Below is a letter in response to my August 18, 2008 letter to Roberto Fonseca-Martinez, Division Administrator of the Virginia Division of the Federal Highway Administration (FHWA). Note that FHWA is the lead agency on the Route 250 Bypass at McIntire Road Project and must ultimately approve that the project development process and the environmental review of the project are consistent with all Federal requirements including the NEPA (National Environmental Policy Act of 1969) process, Section 4(f) of the US Dept. of Transportation Act, and Section 106 of the National Historic Preservation Act.

September 4, 2008

Route 250 Bypass/McIntire Road Interchange;
Charlottesville, Virginia

Mr. Peter Kleeman
407 Hedge Street
Charlottesville, Virginia 22902

Dear Mr. Kleeman:

We are in receipt of your letter dated August 18, 2008, in which you contend that a "change" in the southern terminus of the state-funded McIntire Road Extended project has implications for the decisions made by FHWA related to the Route 250 Bypass interchange project in fulfilling its obligations under the National Environmental Policy Act (NEPA). You further contend that if the extension and interchange projects remain independent in light of this change, then we will not be in compliance with NEPA; accordingly, you encourage us to review the Route 250 Bypass interchange project and provide guidance to the project sponsors as to how they can come into compliance with NEPA requirements.

FHWA has reviewed the Route 250 Bypass interchange project as you have suggested and does not see cause to change the decision that we have made regarding the independence of the interchange project. In fact, we have addressed the independence issue several times already as well as the relationship between project development activities and NEPA, both directly and indirectly, and done so in a manner that is applicable here as well. This issue regarding the southern terminus of the state-funded McIntire Road Extended project first arose several months ago when VDOT released stormwater management design plans for the project. Before VDOT released those plans, the District Environmental Manager contacted FHWA to see if we had any issues with VDOT releasing plans that did not show the state-funded McIntire Road Extension project going all the way to the Route 250 Bypass. FHWA indicated that it did not have the authority to dictate to VDOT how they developed the plans for their state-funded projects and the limits that those plans covered. Further, it has been FHWA's understanding that VDOT and the City intended to issue construction contracts for the McIntire Road Extension project and the Route 250 Bypass interchange project as closely together as project development activities would allow in order to minimize disruption to the environment, adjacent communities and the traveling public. Therefore, common sense dictates that if VDOT and the City are going to work toward this goal, then they are not going to spend time and money to develop design plans and construct a project that would be replaced by another project scheduled to follow closely behind. We made it clear at the time that VDOT has the authority and discretion to design and construct projects as they deem fit; NEPA does not dictate how projects are designed or construction contracts are let or the limits that those design plans and contracts cover. If VDOT wants to combine a state funded project and a federally funded project into a single design or construction contract, that is their prerogative. If they want to limit the scope of the design or construction contract of their project in anticipation of another project coming down the road, again, that is their prerogative.

As indicated above, we have addressed this issue of the relationship between NEPA and other project development activities and provide you with the following references:

In response to your 2005 inquiry to the VDOT Commissioner and FHWA Division Administrator, VDOT correctly stated (after consulting with FHWA), in part, that "Proposed projects with location approvals and funding commitments may serve as logical termini for other projects that are being considered in the planning, feasibility or early preliminary engineering phases."

In our August 31, 2006, response to you we stated: "By virtue of its inclusion in the United Jefferson Area Mobility Plan 2025 for construction, the Constrained Long Range Plan (CLRP) for the region, the McIntire Road Extended/Meadow Creek Parkway project is considered a committed project. 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. The Six-Year Program plays no role in defining the no-build alternative, and it has no standing with respect to FHWA's metropolitan or statewide planning requirements; instead, it is the CLRP that is the controlling document for determining whether or not a project is considered committed."

"Neither does NEPA dictate the sequence in which projects are to be constructed. Even though we maintain our position that the McIntire Road Extended/Meadow Creek Parkway project remains a committed project by virtue of its inclusion in the CLRP, nothing requires VDOT to construct it in advance of the Route 250 Bypass/McIntire Road Interchange project. Notwithstanding, based on recent discussions with VDOT and the City of Charlottesville, it is their intent to advertise and construct both the McIntire Road Extended/Meadow Creek Parkway project and the Route 250 Bypass/McIntire Road Interchange project at the same time to minimize disruption to the adjacent communities and the traveling public."

In our February 15,2008, letter to VDHR: "... 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."

In RKK/FHWA's responses to comments submitted by the Section 106 consulting parties (released at the February 26, 2008, consulting party meeting): "Finally, 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 maybe 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."

To summarize, FHWA stands by its determination that the Route 250 Bypass interchange project has independent utility and will serve a function and need if no other improvements are completed in the area, including the McIntire Road Extended project, as outlined in our February 15, 2008, letter to the Virginia Department of Historic Resources. The decision by VDOT to limit the scope of its design of the McIntire Road Extended project does not undermine the reasons cited by our agency in that letter in concluding that the interchange project is independent of the McIntire Road Extended project. Finally, as we have stated before, 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, operate in an independent manner, or serve a function and need if no other improvements are made. Therefore, it is not correct to state that the current FHWA position is that these two projects can proceed as independent projects. FHWA's position is that the Route 250 Bypass interchange project has independent utility and can proceed apart from the McIntire Road Extended project if the project applicant wishes to develop it in that manner.

Sincerely,

Roberto Fonseca-Martinez
Division Administrator

signature: Edward S. Sundra

By: Edward S. Sundra
Planning and Environment Program Manager