Waukesha County Environmental Action League et al v. United States Department of Transportation et al
Filing
46
ORDER DISMISSING CASE signed by Judge Pamela Pepper on 10/18/2018. 27 Plaintiffs' appeal of agency decision DENIED. 45 Motion for telephonic status conference DENIED as moot. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WAUKESHA COUNTY ENVIRONMENTAL
ACTION LEAGUE; and
COALITION OPPOSED TO THE WEST
WAUKESHA BYPASS, UA,
Plaintiffs,
Case No. 15-cv-801-pp
v.
UNITED STATES DEPARTMENT OF
TRANSPORTATION; ANTHONY FOXX, Secretary
of Transportation; FEDERAL HIGHWAY
ADMINISTRATION; GREGORY G. NADEAU, Acting
Administrator, Federal Highway Administration;
and DAVE ROSS1, Secretary of the State of Wisconsin
Department of Transportation,
Defendants.
ORDER DENYING PLAINTIFFS’ APPEAL OF AGENCY
DECISION (DKT. NO. 27) AND DISMISSING CASE
“The West Waukesha Bypass”—a highway construction project
contemplated by Waukesha County since as early as 1951—is a misnomer.
Due to the area’s development, the “bypass” would no longer “bypass” the city,
but would be an “arterial roadway”2 on the west side of Waukesha. After
Dave Ross succeeded Mark Gottlieb as Secretary of the Wisconsin
Department of Transportation on January 7, 2017; the court substituted Dave
Ross as a party on January 20, 2017.
1
Neither party disputes the characterization of the project as an arterial
roadway. Neither party, however, defines this phrase in briefs, and it is not
defined in the administrative record. Merriam Webster’s Online Dictionary
2
1
several years of review, the project gained the necessary agency approvals to
begin construction—only this case remains. The plaintiffs have asked this
court to review the project’s approval, claiming that the defendants “bypassed”
various procedural requirements. The court will deny the plaintiffs’ request and
dismiss the case.
I.
FACTUAL BACKGROUND
This highway project is colloquially known as the “West Waukesha
Bypass.” Final Environmental Impact Statement (“Final EIS”) §1.1.1 at
AR1059. The project involves the construction of an “arterial roadway” on the
west side of the City of Waukesha, in a “project corridor” running north-south
between Rolling Ridge Drive on its northern end and the intersection of
Wisconsin Highway 59 and County Highway X on its southern end. Id.; Dkt.
No. 37 at 1-2. The project corridor consists of roadways with varying
characteristics, including “substandard hills and curves, high number of
access points, narrow shoulders, and substandard stopping sight distance and
intersection sight distance. . . .” Final EIS §1.4 at AR1085. Because “[t]he gap
in the circumferential route around the city of Waukesha creates increased
demand on project area roads and impedes the flow of people and goods into
and out of the area,” the defendants proposed to build a “more reliable northsouth arterial on the west side of Waukesha . . . to connect the area south of
Waukesha with I-94.” Id.
defines “arterial” as “of, relating to, or constituting through traffic.” MerriamWebster’s Online Dictionary, https://www.merriamwebster.com/dictionary/arterial (last visited Oct. 18, 2018).
2
On May 11, 2010, the Federal Highway Administration (“FHWA”)
announced that, in conjunction with the United States Department of
Transportation (“USDOT”), the Wisconsin Department of Transportation
(“WisDOT”) and the Waukesha County Department of Public Works, it would
prepare an Environmental Impact Statement (“EIS”) for the proposed project.
Dkt. No. 31 at 11. The agencies released a Draft EIS on October 12, 2012, after
“open house public information meetings” in May, July and August of 2010
and February of 2011. Dkt. No. 37 at 7; Draft EIS at AR70. The Draft EIS
stated:
The purpose of the West Waukesha Bypass is to provide a safe
and efficient north-south arterial roadway on the west side of
the City of Waukesha to complete the long-planned
circumferential route around Waukesha; to accommodate
growing traffic volumes along the corridor; and to improve
roadway deficiencies that include tight curves, steep hills,
narrow lanes, and lack of shoulders. The proposed
improvements address two major needs:
Improve safety by providing a roadway that meets current
design standards.
Accommodate traffic demand generated by existing and
planned development within and outside the study
corridor.
The need for the proposed action is demonstrated through a
combination of factors that include project history, regional/
local transportation and land-use planning, traffic demand,
safety concerns, existing roadway deficiencies, system linkage,
and environmental aspects.
Draft EIS at AR66.
After release of the draft EIS, the defendant agencies held a hearing at
Waukesha North High School from four p.m. to eight p.m. on November 13,
3
2012. Final EIS §6.1 at AR1460. “The public hearing was a hybrid of the open
house and formal hearing formats.” Id. More specifically,
Representatives from WisDOT [the Wisconsin Department of
Transportation], Waukesha County, and the consultant team
were available to review project alternatives, listen to
comments, answer questions, and explain procedures for
providing testimony. At 5 p.m., the hearing chairman convened
a formal hearing in the school auditorium. Three formats were
available for providing testimony at the hearing: public
testimony to a panel of project representatives in the
auditorium, private oral testimony to court reporters, and
written comment forms, letters, or e-mail. Comment forms or
letters could also be mailed after the public hearing, or
comments could be e-mailed to the project’s e-mail address. . .
. All forms of testimony were given equal consideration. The
duration of the comment period for the Draft EIS was October
26 to December 10, 2012.
Id.
In September 2014, the defendants issued the project’s Final EIS. Final
EIS at AR1021. The project’s purpose and need statement remained the same
in the Final EIS as in the Draft EIS. Dkt. No. 31, at 13; compare Draft EIS at
AR66 with Final EIS at AR1026. The Final EIS chose and analyzed the
“preferred alternative” from the Draft EIS for the project: a “4-lane divided TT2
Alignment between I-94 and the Wisconsin and Southern Railroad and the 4lane divided Pebble Creek West Alternative between the railroad and WIS 59.”
Final EIS §2.6, at AR1137. Using the Final EIS, the defendants issued a Record
of Decision (“ROD”) on January 20, 2015 which selected this “preferred
alternative” for the construction of the project. Dkt. No. 31 at 13; ROD at AR3.
A year later, in 2016, the defendants proposed to redesign a portion of
the project. Dkt. No. 37 at 10. The re-design sought to shift a segment of the
4
project’s alignment to avoid impacting a wetland. Id. To analyze the
environmental effects of this proposed new alignment—called the “Rotated
Pebble Creek West” alternative—the agencies produced and released a
reevaluation document on July 22, 2016. Id. In the reevaluation, the
defendants concluded that a supplemental EIS was unnecessary:
All resource studies undertaken as part of the final EIS included
the location of the Rotated Pebble Creek West alignment which is
located between the Pebble Creek West and Pebble Creek Far
West alternatives. Even though resource studies did not
contemplate the Rotated Pebble Creek West alignment, the
studies were re-evaluated to a level that supports their
sufficiency in concluding that there are no new significant
impacts as a result of the rotated alignment.
Reevaluation at 16, at AR29873.
II.
PROCEDURAL HISTORY
On July 2, 2015, plaintiffs Waukesha County Environmental Action
League and Coalition Opposed to the West Waukesha Bypass, UA filed this
lawsuit for declaratory and injunctive relief against the above-named
defendants. Dkt. No. 1. On December 15, 2015, Judge Rudolph T. Randa (to
whom the case originally was assigned) conducted a scheduling conference in
which the parties “agree[d] to handle the case as an administrative appeal and
dispense with summary judgment format . . . .” Dkt. No. 14 at 1. On November
27, 2016, the plaintiffs filed an amended complaint, adding allegations
pertaining to the project’s 2016 re-design. Dkt. No. 27. The amended complaint
asked the court to: (1) declare that the Final EIS, the ROD and the reevaluation
violate the National Environmental Policy Act (“NEPA”), the Federal-Aid
5
Highways Act, the Endangered Species Act (“ESA”), and the Administrative
Procedure Act (“APA”); (2) set aside and remand the Final EIS, the ROD and the
reevaluation; (3) enjoin the defendants from taking any action in furtherance of
implementing the Final EIS, the ROD, and the reevaluation until they come
into compliance with federal law; and (4) award plaintiffs their costs and
attorney’s fees. Id. at 35.
The plaintiffs filed a fifty-page brief in support of their positions on
December 16, 2016. Dkt. No. 31. On January 20, 2017, the defendants filed
two separate opposition briefs—one by defendant Mark Gottleib (now Dave
Ross), Dkt. No. 36, and one by the remaining “federal defendants.” Dkt. No. 37.
The plaintiffs filed a reply on February 20, 2017. Dkt. No. 38. Three months
later, the plaintiffs filed a document titled “Plaintiffs’ Notice of Project
Construction Activities and Request for an Expedited Ruling.” Dkt. No. 40. This
motion stated that the Wisconsin Department of Transportation had started
construction activities on the northern end of the project, and urged the court
“to issue a ruling on the merits of Plaintiffs’ NEPA claim as expeditiously as the
Court’s schedule permits.” Dkt. No. 40 at 1-2. The court heard oral argument
on July 11, 2017. Dkt. No. 43. It has taken the court time to issue its ruling,
which spurred the plaintiffs to file two further documents: (1) a “notice
regarding status of work on project and request for a ruling,” dkt. no. 44; and
(2) an unopposed motion for a telephonic status conference to ask for
emergency injunctive relief, dkt. no. 45.
6
III.
DISCUSSION
A.
Standard of Review
At the initial scheduling conference, the parties agreed to forego the
summary judgment process, and asked the court to review the findings of the
administrative agency. Dkt. No. 14. The APA governs a district court’s review of
agency action under NEPA, Ind. Forest All., Inc. v. U.S. Forest Serv., 325 F.3d
851, 858 (7th Cir. 2003), and requires a reviewing court to “hold unlawful and
set aside agency action, findings, and conclusions found to be—(A) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. §706(2)(A). The Supreme Court has explained that
in making the factual inquiry concerning whether an agency
decision was ‘arbitrary or capricious,’ the reviewing court ‘must
consider whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of
judgment.’ This inquiry must ‘be searching and careful,’ but ‘the
ultimate standard of review is a narrow one.’
Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 379 (citing Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
A reviewing court makes two inquiries: “1) whether the agency’s decision
was based on a consideration of the relevant factors; and 2) whether the agency
has made a clear error in judgment.” Envtl. Law & Policy Ctr. v. U.S. Nuclear
Regulatory Comm’n, 470 F.3d 676, 682 (7th Cir. 2006). A court “cannot
substitute its own judgment for that of the agency as to the environmental
consequences of its actions. In fact, in applying the arbitrary and capricious
7
standard, this Court’s only role is to ensure that the agency has taken a hard
look at environmental consequences.” Id. (internal citations omitted).
“‘If an agency considers the proper factors and makes a factual determination
on whether the environmental impacts are significant or not, that decision
implicates substantial agency expertise and is entitled to deference.’” Highway
J Citizens Grp. v. Mineta, 349 F.3d 938, 953 (7th Cir. 2003) (quoting Ind.
Forest All., 325 F.3d at 859).
“NEPA ‘does not mandate particular results, but simply prescribes the
necessary process.’” Id. (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349 (1989)). A reviewing court “is not empowered to examine
whether the agency made the ‘right’ decision, but only to determine whether, in
making that decision, the agency followed the procedures prescribed by NEPA.”
Habitat Educ. Ctr., Inc. v. U.S. Forest Serv., 593 F. Supp. 2d 1019, 1024 (E.D.
Wis. 2009) (citing Mineta, 349 F.3d at 952)).
[A] court must be careful not to “‘flyspeck’ an agency's
environmental analysis, looking for any deficiency, no matter how
minor.” Nat'l Audubon Soc'y [v. Dep’t of the Navy], 422 F.3d [174,] .
. . 186 [(4th Cir. 2005)]. With a document as complicated and
mired in technical detail as an EIS, it will always be possible to
point out some potential defect or shortcoming, or to suggest some
additional step that the agency could have taken to improve its
environmental analysis. An EIS is unlikely to be perfect, and
setting aside an EIS based on minor flaws that have little or no
impact on informed decision-making or informed public
participation would defy common sense. Thus, rather than getting
bogged down in possible technical flaws, a court must “take a
holistic view of what the agency has done to assess environmental
impact.” Id. Further, courts must remember that it is the agency,
and not the court, that has the technical expertise required to
8
perform the environmental analysis in the first place. This means
that judicial review of an EIS must be deferential, especially when
it comes to the scientific and technical details that make up the
heart of the analysis.
Habitat Educ. Ctr., 593 F. Supp. 2d at 1025.
B.
Discussion
1. The “public hearing” requirement under 23 U.S.C. §128
The plaintiffs allege that under the Federal-Aid Highways Act, Title 23
United States Code §128, the defendants failed to provide a “public hearing”
prior to the project’s approval. Dkt. No. 31 at 17. They assert that the format of
the hearing in November of 2012 (referred to by the parties as a “hybrid
hearing”) did not “provide the ‘direct link between the public and government
representatives that Congress envisioned.’” Id. at 18 (quoting Highway J
Citizens Grp. v. U.S. Dep’t of Transp., 656 F. Supp. 2d 868, 884-85 (E.D. Wis.
2009)).
Specifically, the plaintiffs contend that the hybrid meeting undermined
the purpose of a “public hearing” by diluting the opportunities for one citizen to
learn about the views of a fellow citizen. Id. at 18. They say that some members
of the public missed their opportunity to hear other citizens’ viewpoints
because the hybrid hearing intentionally set up different testimonial activities
at the same time. Id. at 18-19. And, plaintiffs claim, citizens should not have
had to make the choice between testimonial activities. Id. They cite Highway J,
656 F. Supp. 2d at 897, in which a court in this district held that a purely
9
“open house”-style forum did not qualify as a “public hearing” under 23 U.S.C.
§128.
The defendants respond that the Highway J decision considered only
whether “open house”-type hearings could satisfy the “public hearing”
requirement of 23 U.S.C. §128. Dkt. No. 37 at 11. They contend that because
they conducted a hybrid hearing—more than just an “open house”—the 2009
Highway J decision does not compel the court to set aside the agency’s
decision. Id. The defendants characterize the hybrid hearing as “supplementing
the town hall format with other methods of public comment[,]” and argue that
“any person who wished to hear the publicly-presented testimony could do so
without losing the opportunity to provide testimony in writing or privately.” Id.
at 11-12.
The Federal-Aid Highways Act imposes requirements on state agencies
that apply to receive federal funding under this statute. Section 128 of the Act
requires that
[a]ny State transportation department which submits plans for
a Federal-aid highway project involving the bypassing of, or
going through, any city, town, or village, either incorporated or
unincorporated, shall certify to the Secretary that it has had
public hearings, or has afforded the opportunity for such
hearings, and has considered the economic and social effects of
such a location, its impact on the environment, and its
consistency with the goals and objectives of such urban
planning as has been promulgated by the community.
23 U.S.C. §128 (emphasis added).
10
The plaintiffs correctly note that the statute does not define a “public
hearing,” or prescribe a necessary format. Dkt. No. 31 at 17; citing Highway J,
656 F. Supp. 2d at 895. The implementing regulation, 23 C.F.R.
§771.111(h)(2)(vii), requires only “an opportunity for public involvement in
defining the purpose and need and the range of alternatives.”
In Highway J Citizens Grp. v. U.S. Dep’t of Transp. et al, Judge Adelman
considered whether the WisDOT’s “open house” qualified as a “public hearing”
under 23 U.S.C. §128. Highway J, 656 F. Supp. 2d at 894-97. For that project,
the
WisDOT held an ‘open house.’ It held this open house at a local
church over the course of seven hours. WisDOT provided attendees
with a handout ‘that included a summary of project purpose and
need; alternatives and their impacts; information about upcoming
activities and contacts; frequently asked questions and responses;
and a comment form.’ Attendees could also walk around the room
and view exhibits about the project. Representatives from WisDOT
attended the open house and ‘were available to explain project
alternatives, answer questions, and explain procedures for
providing testimony.’ However, the format that WisDOT used did
not permit members of the public to publicly express their views
directly to WisDOT representatives or to other members of the
public. Rather, WisDOT required those who wished to express an
opinion or make a suggestion to either dictate their comments in
private to a court reporter or complete written comment forms.
Id. at 895 (record citations omitted).
In his analysis, Judge Adelman found that “a public hearing must allow
citizens an opportunity to express their views in front of agency representatives
and other citizens.” Id. at 896. He concluded “[t]he open house held by WisDOT
did not afford such an opportunity,” because “it offered no opportunity for one
11
citizen to learn about the views of a fellow citizen, no opportunity for one citizen
to influence another.” Id.
In contrast, the hybrid hearing in this case afforded citizens the
opportunity to influence one another in the auditorium forum setting. Section
six of the Final EIS details the November 13, 2012 proceedings. Final EIS at
§6.1; AR1460. The event lasted from four p.m. until eight p.m., and at five
p.m., the hearing’s chairman convened “a formal hearing in the school’s
auditorium” where citizens provided “public testimony to a panel of project
representatives.” Id. The plaintiffs do not argue that the agencies barred any
members of the public from attending this auditorium hearing. Rather, they
argue that by hosting other activities at the same time as this auditorium
hearing, the citizens who attended the auditorium hearing lost the opportunity
to influence a fellow citizen who chose to be in another room.
Neither the statute, the implementing regulation, nor Judge Adelman’s
Highway J decision provide citizens with a right to influence all other interested
citizens. Judge Adelman’s decision held only that the procedure must give
citizens “an opportunity to express their views in front of agency representatives
and other citizens.” 656 F. Supp. 2d at 896 (emphasis added). Here, interested
citizens had just such an opportunity; the auditorium hearing gave interested
citizens the opportunity to influence the agency representatives and those
other individuals who chose to attend the auditorium hearing. The fact that
one or more citizens chose to attend other presentations going on at the same
time does not change the fact that they had the opportunity to attend the
12
auditorium hearing. The answer to the question of whether the defendants held
a “public hearing” does not turn on whether anyone chooses to attend that
hearing—the question is whether they had the opportunity to do so. The hybrid
hearing qualified as a “public hearing.”
2.
The final EIS’s definition of the project’s purpose
The plaintiffs next argue that the defendants violated NEPA by using the
process of creating an EIS only to justify an earlier plan, instead of aiding in
agency decision-making. Dkt. No. 31 at 22. They argue that the defendants
eliminated all the two-lane alternatives (thus removing them from further
environmental scrutiny) for the project’s northern section solely because those
alternatives did not comport with decades-old transportation plans. Id. at 20.
This, the plaintiffs contend, shows that the Final EIS defined the purpose and
the need of the project so narrowly so that only the desired, four-lane
alternative fit its requirements. Id. at 21.
The defendants respond that the project’s history constituted only part of
their decision to eliminate the two-lane alternatives. Dkt. No. 37 at 13
(emphasis added). They assert that other factors included “regional/local
transportation and land use planning, traffic demand, safety concerns, existing
roadway deficiencies, system linkage, and environmental aspects.” Id. (citing
Final EIS §1.3, at AR1061).
The defendants also argue that the plaintiffs view the project in a
vacuum; the Southeastern Wisconsin Regional Planning Commission has
included some form of this bypass in its regional Transportation Improvement
13
Program since 1974. Id. (citing Final EIS §1.3, at AR1061). The defendants
state that this commission develops these programs to ensure a comprehensive
and coordinated approach to local, regional and state transportation planning,
and that NEPA does not require the agencies to analyze their project without
regard to these planning activities. Id. at 14. The defendants also cite cases
where courts have upheld Environmental Impact Statements whose primary
purposes and needs focused on transportation and safety issues. Id. at 14-15
(collecting cases).
For each two-lane alternative, the agencies listed several reasons beyond
the project’s history as justifications for their rejection. See Final EIS §2.3.1—
2.3.3, at AR1107-08; Final EIS §2.4.2.1 – 2.4.2.4, at AR1116-1122 (e.g. at
AR1118: “The [2-Lane on Existing Alignment with Limited Intersection
Improvements Alternative] was eliminated because it would not adequately
accommodate future traffic volumes, would not be as safe as the off-alignment
alternatives, would displace more homes than the 2-Lane Off-Alignment
Alternative, and has less support than the other alternatives.”). This court
must accept those reasons at face value; a reviewing court’s role is not to
question the listed reasons of the agency. In re Subpoena Duces Tecum Served
on Office of Comptroller of Curency, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998)
(“When a party challenges agency action as arbitrary and capricious, the
reasonableness of the agency’s actions is judged in accordance with its stated
reasons.”); see also Spiller v. White, 352 F.3d 235, 242 (5th Cir. 2003).
14
Further, in the Final EIS, the agencies detailed the different
considerations underlying the project’s purpose and need. Final EIS at §1.3.
Those considerations included project history (§1.3.1), transportation and land
use planning (§1.3.2), traffic demand (§1.3.3), truck traffic (§1.3.4), highway
capacity (§1.3.5), safety (§1.3.6), roadway characteristics and deficiencies
(§1.3.7), system linkage (§1.3.8), and environmental and socioeconomic aspects
(§1.3.9). Final EIS §1.3, at AR1068-1085. Taking into account all of these
considerations, the agencies found that “[a] more reliable north-south arterial
on the west side of Waukesha is necessary to connect the area south of
Waukesha with I-94.” Final EIS §1.4 at AR1085.
The defendants both (a) considered more than just the project’s history
in defining their purpose and need and (b) rejected the two-lane alternatives for
many reasons, not just because they did not comport with old transportation
plans. The plaintiffs disagree with the agencies’ conclusions, but the agencies’
definition of the project’s purpose and need does not constitute clear error. See
Envtl. Law & Policy Ctr., 470 F.3d at 682.
3.
Considering a combination of alternatives
The plaintiffs next allege that by failing to consider whether a
combination of alternatives might meet the project’s legitimate objectives, the
defendants violated NEPA. Dkt. No. 31 at 23. The plaintiffs state that while the
defendants rejected “non-build” alternatives because those alternatives
wouldn’t individually address safety and traffic demand concerns, they failed to
(and needed to) consider whether some combination of those measures could,
15
together, achieve the project objectives. Id. at 23-24 (emphasis added). They list
two cases discussing the failure to consider a combination of alternatives:
Davis v. Mineta, 302 F.3d 1104, 1122 (10th Cir. 2002) and Utahns for Better
Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1170-71 (10th Cir. 2002).
The defendants counter that they were obligated only to evaluate all
reasonable alternatives, and that an alternative is reasonable only if it will
bring about the end of the federal action. Dkt. No. 37 at 16 (emphasis added).
They argue that they did not have to analyze every conceivable alternative
action in the EIS. Id. at 17-18 (citing City of Carmel-By-The-Sea v. U.S. Dep’t of
Transp., 123 F.3d 1142 (9th Cir. 1997) (“The Environmental Impact Statement
need not consider an infinite range of alternatives, only reasonable or feasible
ones.”)).
NEPA established the Council on Environmental Quality (“CEQ”) to
promulgate regulations implementing the statute. See 42 U.S.C. §4342. One
such regulation, 40 C.F.R. §1502, prescribes the required contents of an EIS.
That section mandates that “agencies shall: (a) Rigorously explore and
objectively evaluate all reasonable alternatives, and for alternatives which were
eliminated from detailed study, briefly discuss the reasons for their having
been eliminated.” 40 C.F.R. §1502.14. While alternatives analysis is “the heart
of the environmental impact statement[,]” 40 C.F.R. §1502.14, “[a]gencies are
not required to consider alternatives that would not serve the reasonable
project purpose.” Coalition to Protect Cowles Bog Area v. Salazar, No. 2:12-CV515, 2013 WL 3338491, at *11 (N.D. Ind. July 2, 2013). The Seventh Circuit
16
has further elaborated that “[a]n agency is required to address three questions
in considering alternatives. ‘First, what is the purpose of the proposed project
(major federal action)? Second, given that purpose, what are the reasonable
alternatives to the project? And third, to what extent should the agency explore
each particular reasonable alternative?’” Mineta, 349 F.3d 938 at 960-61
(quoting Simmons v. United States Army Corps of Eng’rs, 120 F.3d 664, 668
(7th Cir. 1997)).
As recounted above, the agencies proffered a two-pronged purpose for the
project: (1) improve safety by providing a roadway that meets current design
standards; and (2) accommodate traffic demand generated by existing and
planned development within and outside the study corridor. Final EIS §1.2 at
AR1060. Section two of the Final EIS contains the agencies’ discussion of
proposed alternatives and lists reasons as to why agencies found them not to
meet the project’s purpose. Final EIS §2 at AR1100-78. Among others, the
agencies screened a “No-Build” alternative, a “Transportation Demand
Management” (“TDM”) alternative, a “Transportation System Management”
(“TSM”) alternative, and a “No-Build-Improve” alternative in the Final EIS
§§2.3.1, 2.3.2, 2.3.3, and 2.4.1.4 at AR1107-08; AR1115.
The “No-Build” alternative would have involved “[r]outine maintenance”
and “would have [had] minimal environmental effects and construction cost.”
Final EIS §2.3.1 at AR1107. The agencies dismissed it as a reasonable course
of action, however, because it would not “address project purpose and need
17
with respect to safety concerns, existing highway deficiencies, and future traffic
demand.” Final EIS §2.3.1 at AR1107.
The “TDM” alternative discussed various forms of proposed public transit
systems, including a commuter rail system from Oconomowoc to Milwaukee, a
potential light-rail/bus guideway from Waukesha to Milwaukee, and increased
freeway and non-freeway bus routes. Final EIS §2.3.2 at AR1107. In laying out
this alternative, the agencies reasoned that even with the proposed increase in
public transit, traffic volumes in the study area were expected to increase
twenty-three to fifty-six percent by 2035, and some segments of County TT
already carried more traffic than they were designed to handle. Id. The agencies
concluded that “the TDM Alternative alone would not fully address project
purpose and need with respect to safety concerns, existing highway
deficiencies, and future traffic demand. Therefore the TDM Alternative is not
considered a reasonable course of action and has been eliminated from
consideration as a stand-alone alternative.” Id.
The TSM alternative included implementing “coordinated signal timing”
and turn lanes. Final EIS §2.3.3 at AR1108. The Final EIS stated that
“Waukesha County has implemented several TSM measures in and adjacent to
the project area . . . .” Id. But, like the previous alternatives, the agencies
concluded that “the TSM Alternative alone would not fully address project
purpose and need with respect to safety, existing deficiencies, and future traffic
demand. Therefore, the TSM Alternative is not considered a reasonable course
18
of action and has been eliminated from consideration as a stand-alone
alternative.” Id.
The “No-Build Improve” alternative sought to “maintain two lanes along
the entire route within the current two lane footprint.” Final EIS §2.4.1.4 at
AR1115. Its most significant improvements proposed adding left turn lanes
where needed; adding stop signs/lights, reducing speed limits and improving
signage where needed for safety reasons; and improving the Madison/County
TT intersection to minimize the steep hill before the stop sign. Id. The
defendant agencies rejected this alternative for three reasons: (1) it would not
meet all minimum standards along the length of the alternative; (2) it would
not accommodate growing traffic volumes along the corridor; and (3) “it would
not be as safe as the other 2-lane alternatives or the 4-lane roadway because
intersections would not be improved to the same extent and the roadway may
not uniformly meet WisDOT’s minimum 2-lane standards.” Id. at AR1121.
The defendants properly outlined the reasonable alternatives and stated
the reasons why each proposed alternative would not meet the project’s
purposes and needs. The CEQ regulations mandate only that agencies “briefly
discuss” why they dismissed the alternative as unreasonable. 40 C.F.R.
§1502.14. The EIS provided those brief discussions.
Despite the extensive administrative record, the plaintiffs insist that the
defendants should have “consider[ed] whether traffic growth concerns could be
met by implementing one or more non-build alternatives or two-lane
alternatives for at least parts of the route, along with the ‘No-Build Improve,’
19
three-lane and other alternatives offered in comments.” Dkt. No. 31 at 24. They
rely on two cases from the Tenth Circuit to support their argument that the
defendant agencies must consider alternatives in combination.
The project at issue in Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002)
involved “the creation of a new freeway interchange at Interstate 15 and 11400
South; the construction of a new bridge over the Jordan River at 11400 South;
and the widening and extension of existing 11400 South.” Id. at 1110. The
Tenth Circuit found that the agencies erred in failing to consider whether TSM
and/or mass transit could, together with alternative road transit, meet project
goals. Id. at 1121-22. The Tenth Circuit noted that various reports in the
record found (a) that “TSM could significantly contribute to traffic management
in the area,” and (b) that “mass transit in any number of iterations is
apparently under active consideration in this area by a number of jurisdictions
involved.” Id. at 1122. The court concluded that the record did not demonstrate
that those options were too “remote, speculative, impractical or ineffective” so
as to be considered unreasonable. Id. Instead, those options required more
detailed analysis. Id.
In the second case, Utahns for Better Transp. v. U.S. Dep’t of Transp.,
305 F.3d 1152 (10th Cir. 2002), the project plan “call[ed] for improving and
expanding Interstate 15, expanding transit, and constructing the Legacy
Parkway.” Utahns, 305 F.3d at 1161. The Tenth Circuit found the agencies’
Final EIS inadequate because it failed to take “a hard look at whether public
transit could alleviate the immediacy of the need for the I-15 expansion or
20
Legacy Parkway construction.” Id. at 1170. The court found that public transit
could not be dismissed as speculative or ineffective when the Final EIS itself
relied on public transit “to meet 12 percent of the 2020 demand and maybe the
additional 10 percent of demand that will not be met under the Shared
Solution.” Id.
The Tenth Circuit also found that the Final EIS “fail[ed] to consider
integrating the construction of the Legacy Parkway with the expansion of
public transit as a reasonable alternative.” Id. at 1170. It said that the agencies
had not responded to comments in the record by the Federal Transit
Administration and others that discussed the significant savings to be gained
by building the Legacy Parkway and expanding public transit simultaneously.
Id. at 1170-71. Thus, failing to consider the combination of public transit and
Legacy Parkway construction rendered the Final EIS inadequate. Id. at 1171.
In both cases, Tenth Circuit found that the record supported the
proposed alternatives as being potentially effective in remedying the project’s
purpose and need. It concluded that failing to further study such promising
alternatives alone or in combination rendered the environmental documents
inadequate. Davis 302 F.3d at 1122; Utahns for Better Transp., 305 F.3d at
1171.
That is not the case here. Here, the record shows that the plaintiffs’
proposed alternatives would be ineffective in fulfilling the project’s purpose and
need. Nothing indicates that a combination of the alternatives would
adequately address the project’s purpose and need. Without grounds in the
21
record for concluding that some combination of alternatives might be effective,
the court finds that the defendants’ failure to consider a combination of
individually ineffective alternatives did not constitute clear error in violation of
the CEQ regulations.
4.
The need for a four-lane highway along the entire project
length
The plaintiffs note that for a stretch of the project—from Rolling Ridge
Drive proceeding southward to Summit Avenue—the Final EIS states that the
crash rates are lower than the statewide average. Dkt. No. 31 at 24.
Accordingly, they argue that safety concerns cannot justify a four-lane highway
for this stretch of road. Id. Because alternative plans could address traffic
concerns for this stretch of road, plaintiffs allege that the Final EIS failed to
explain why a four-lane highway is necessary along this stretch. Id. at 25.
Section 2.4.2 of the Final EIS explained that a transportation firm,
Strand Associates, conducted a “Road Safety Audit” on the project corridor for
the WisDOT in 2011. Final EIS, §2.4.2 at AR1116. The Road Safety Audit
evaluated crash risks for the two-lane and four-lane alternatives, and
concluded that:
[e]xpanding intersections to provide four through lanes to meet
operations criteria would result in a corridor that frequently
expands from two lanes to four, only to taper back to two
lanes. The frequent tapers and route inconsistency could
increase the risk of crashes compared to a consistent 4-lane
corridor, particularly for unfamiliar drivers.
Final EIS §2.4.2 at AR1118 (emphasis added). Contrary to the plaintiffs’
assertions, the agencies listed a reason for selecting a four-lane option for the
22
entire stretch of project corridor. The court does not find clear error in the
agencies’ reliance on this finding to justify four lanes along the entire corridor.
5.
The “No Action” alternative
The plaintiffs argue that the Final EIS arbitrarily and capriciously
rejected the “No Action” alternative by failing to provide evidence establishing
the need for any action at all. Dkt. No. 31 at 25. The plaintiffs maintain that an
EIS must “‘articulate a reason for its action that demonstrates a ‘rational
connection between the facts found and the choice made,’” by “cogently
explaining why it has exercised its discretion in a given manner.” Id. at 25-26
(quoting Owner-Operator Indep. Drivers Ass’n., Inc. v. Fed. Motor Carrier
Safety Admin., 656 F.3d 580, 588 (7th Cir. 2011)).
The plaintiffs say that the Final EIS assumes longer traffic delays on
County TT than actually exist, and argue that the FHWA received comments
suggesting that Highway TT does not fit the characteristics of a low “Level of
Service” road. Id. at 26. The plaintiffs also fault the Final EIS for not discussing
the possibility of increasing speed limits and not addressing whether the
existing hills in fact correlate with increased accidents in the area. Id. at 27.
The defendants respond that they used standard procedures to evaluate
current and future traffic and safety data. Dkt. No. 37 at 19. They note that
they are under no obligation to take user experience into consideration. Id.
At §1.3.5.1, the Final EIS discussed the guidelines and the methodology
behind assigning a highway a particular “Level Of Service” rating. Final EIS
§1.3.5.1 at AR1069. The record shows that various parameters factor into the
23
Level of Service calculation, such as “[average daily traffic] volumes, peak-hour
volumes, truck percentages, number of driving lanes, lane widths, vertical
grades, passing opportunities, presence or absence of traffic signals, and
access type/spacing.” Id. As the defendants note, the court is not a
professional transportation analyst. It declines to critique the agencies’
methodology in reaching its Level of Service determination.
The Final EIS also discusses the roadway’s characteristics and
deficiencies. Final EIS §1.3.7 at AR1077. It specifically mentions that “the
project corridor has 19 hills that exceed WisDOT’s maximum desired grade of
5% for rural arterials . . . [a]ll 10 locations on County TT that exceed the
recommended maximum grade also have crash rates that exceed the statewide
average rate.” Id. at AR1079.
The court cannot conclude that the agencies arbitrarily and capriciously
dismissed the no-action alternative on safety grounds. The court’s role is only
to ensure that the agencies took a “hard look” at environmental consequences,
not to act as a transportation data analyst. See Mineta, 349 F.3d at 953. The
record reflects that the agencies conducted safety analyses using empirical
data. See Final EIS §1.3.5 at AR1069-1079. The record also shows that the
agencies used the Road Safety Audit to evaluate the relative safety implications
of different alternatives. Id. That audit included a site visit, a Crash Risk
Assessment Workshop and an analysis using Hi-Safe software to make
quantitative predictions. See AR29376-29397-9. Because the agencies made a
24
considered decision to reject the no-action alternative, the court will not
second-guess its wisdom on this narrow scope of review.
6.
The “No-Build Improve” alternative
The plaintiffs argue that the Final EIS rejected the “No-Build Improve”
alternative on safety grounds without conducting modeling for this alternative.
Dkt. No. 31 at 27. They assert that the defendants arbitrarily and capriciously
rejected the “No-Build Improve” on safety grounds. Id. at 27-28. The plaintiffs
also assert that the Final EIS did not address the Environmental Protection
Agency’s (“EPA”) concerns with the Draft EIS regarding the no-build improve
safety discussion. Id. at 28.
The defendants respond that the Road Safety Audit in the Final EIS
evaluated a two-lane alternative that was similar enough to the No-Build
Improve alternative to support the agencies’ analyses and conclusions. Dkt. No.
37 at 20; see Final EIS §2.4.2.4 at AR1121-22. As for the EPA’s concerns, the
defendants note that the EPA recommended an estimate of projected crash
rates, and that the agencies added estimated crash rates to the traffic safety
discussion in Section 3.5.2 of the Final EIS. Id. at 9; see AR1209-14.
The Final EIS states that “[t]he [Road Safety Audit] did not analyze the
No Build Improve Alternative. However, the alternative is similar to the 2-lane
On Alignment Alternative and would be expected to share its crash
characteristics . . . .” Final EIS §2.4.2.4, at AR1120-22. The plaintiffs are
correct that the FHWA did not include the “No-Build Improve” alternative in the
Road Safety Audit, but they offer no argument as to why the “No-Build
25
Improve” alternative would differ significantly from the “2-Lane, On-Alignment”
alternative. The plaintiffs cite Highway J, in which Judge Adelman concluded
that an agency must either model an alternative “to confirm their suspicion
that it is not different from another alternative or explain the basis for not doing
so.” Highway J, 656 F. Supp. 2d at 891 (emphasis added). Here, the defendants
did explain their reasoning: they expected the “No-Build Improve” alternative to
share the same crash characteristics as the “Two-Lane, On-Alignment”
alternative. Final EIS §2.4.2.4 at AR1121-22. The plaintiffs articulated their
reasoning and the court does not find clear error in this decision.
7.
Indirect and cumulative impacts of the project
The plaintiffs argue that the “hard look” required by NEPA must include
a discussion of the indirect impacts of the project. Dkt. No. 31 at 30. They
assert that the Final EIS’s conclusory dismissal of the project’s indirect impacts
was deficient, because it did not take into account the incremental impact that
the highway expansion would have on urbanization and development in the
area. Id. at 32.
As for cumulative impacts, the plaintiffs allege that the Final EIS didn’t
consider commercial development, air quality or noise impacts and instead
summarily stated that there would be no cumulative impacts associated with
the project. Id. (citing Final EIS §3.4.4 at AR1199). The plaintiffs state that the
Final EIS impermissibly ignored whether alternative plans may keep Pebble
Creek’s “directly connected imperviousness” below 10%, the threshold after
which the index of biotic integrity scores decline dramatically. Id. at 33.
26
Under CEQ regulations, indirect impacts are those “caused by the action
and are later in time or farther removed in distance, but are still reasonably
foreseeable.” 40 C.F.R. §1508.8. Cumulative impacts, on the other hand,
regard “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.” 40 C.F.R. §1508.7. “Cumulative impacts can result
from individually minor but collectively significant actions taking place over a
period of time.” Id.
While the plaintiffs contend that the defendants abdicated their duty to
examine indirect impacts, the record does not support that contention. The
Final EIS §3.3, at AR1187-1195 discusses: (a) that surrounding land in the
Pebble Creek corridor is either wetland or floodplain (or both) and, therefore, is
protected by floodplain and shoreland-wetland zoning (AR1194); (b) how the
project would induce primarily residential growth, and that residential
development already had occurred in anticipation of the project (AR1195); (c)
how environmental features limit areas for residential or commercial
development (AR1195) and (d) that “the overall air quality should improve
because of reduced idling times.” AR1193. Given these efforts to determine the
project’s indirect and cumulative effects, the court cannot conclude that the
defendants deficiently scrutinized the project.
The agencies also considered water quality in the Final EIS at Section
3.4.6; regarding the plaintiffs’ argument, it concluded:
Waukesha County determined that the direct connected
imperviousness in 2010 without the preferred alternative was 8.7
27
percent and with the preferred alternative it would be 9 percent. By
remaining below the 10 percent threshold described in the Pebble
Creek Watershed Protection Plan, it is reasonable to expect that
the Waukesha Bypass’ preferred alternative would not adversely
affect water quality in Pebble Creek to an extent that it would
adversely affect the health of the creek’s fishery.
Final EIS, §3.4.6 at AR1201-02. The defendants did compare the preferred
alternative against a no action alternative about water quality. NEPA does not
impose substantive requirements requiring the agency to choose the alternative
with the least water quality impact. Mineta, 349 F.3d at 953. NEPA imposes
procedural hurdles that, in these regards, the defendants satisfied.
8.
Scope of the study area for cumulative impacts analysis.
The plaintiffs contend that the Final EIS improperly constrained the
study area surveyed for cumulative impacts analysis. Dkt. No. 31 at 34. The
plaintiffs point to a 1997 CEQ Guidance statement which instructed that
“cumulative effects analysis should be conducted on the scale of human
communities, landscapes, watersheds, or airsheds.” Id. at 35. They argue that
the defendants improperly selected the Pebble Creek watershed—a subwatershed of the Fox River Basin—for their cumulative effect analysis. Id. They
allege that drawing the line for consideration of cumulative impacts “with no
explanation” is arbitrary and capricious. Id. The plaintiffs also argue that the
Final EIS ignored the EPA’s comment on the Draft EIS that called for a
consideration of the WIS 59 highway widening project and WIS 83 highway
widening project in the cumulative impacts analysis. Id. at 37.
The Final EIS stated the agencies’ reasoning for selecting the Pebble
Creek Watershed at §3.4.2:
28
The Pebble Creek Watershed (shown on Exhibit 3-12) was
selected for this analysis for two reasons: (1) as discussed
below, wetlands, groundwater and primary environmental
corridor are the key resources evaluated in the cumulative
effects analysis; and (2) the watershed’s boundaries include the
project area and the area west of the project area that is most
likely to experience development.
AR1197-98; see also AR669-670 (defending the selection of the Pebble Creek
Sub-watershed as the scope of the cumulative impacts analysis in response to
a comment by the EPA). While the Final EIS did not discuss precisely why it
chose the Pebble Creek Watershed as opposed to the other boundaries, the
agencies did not fail to provide their reasoning. In the same CEQ Guidance
Statement that plaintiffs cite, the CEQ notes that:
[i]t is not practical to analyze the cumulative effects of an action on
the universe; the list of environmental effects must focus on those
that are truly meaningful . . . . For cumulative effects analysis to
help the decisionmaker [sic] and inform interested parties, it must
be limited through scoping to effects that can be evaluated
meaningfully.
COUNCIL ON ENVIRONMENTAL QUALITY, CONSIDERING CUMULATIVE EFFECTS UNDER THE
NATIONAL ENVIRONMENTAL POLICY ACT (January 1997), Table 1-2, p. 8
https://energy.gov/nepa/downloads/considering-cumulative-effects-undernational-environmental-policy-act-ceq-1997 (last accessed Oct. 17, 2018).
The defendants have not demonstrated that the agencies acted arbitrarily
and capriciously in selecting the Pebble Creek Sub-watershed.
9.
Mitigation
The plaintiffs argue that the Final EIS phrased many of its mitigation
commitments prospectively instead of definitively. Dkt. No. 31 at 38. For
example, the plaintiffs cite the Final EIS at §3.4.5: “Waukesha County is
29
investigating a wetland mitigation bank in the Pebble Creek[,]” [present tense],
and the Final EIS at §3.16.3: “[i]n the design phase, [agencies] will investigate
measures to minimize wetlands impacts,” [future tense]. Id.; see Final EIS
§3.4.5 at AR1200; Final EIS §3.16.3 at AR1304-05.
The defendants respond that the ROD (see AR13-19) contained a detailed
description of the project’s mitigation, monitoring and enforcement efforts. Dkt.
No. 37 at 24. As to the prospective phrasing of the mitigation measures, the
defendants state that, at the early stage of the design process, the creators of
the Final EIS and ROD did not have enough details to make final decisions on
the particular mitigation and/or best management practices that will be most
effective in mitigating the project’s environmental effects. Id.
The ROD details discussion on the mitigation efforts of the project. ROD
at AR13-19. The plaintiffs’ argument is semantic. Although the defendants
stated what they were doing, and what they would do, the plaintiffs object that
the defendants did not promise, or contractually bind themselves, to take
certain mitigation measures. But phrasing mitigation strategies as prospective
is not arbitrary, capricious or contrary to law; in fact, the Supreme Court has
held that “it would be inconsistent with NEPA’s reliance on procedural
mechanisms—as opposed to substantive, result-based standards—to demand
the presence of a fully developed plan that will mitigate environmental harm
before an agency can act.” Robertson, 490 U.S. at 353 (finding that the Court
of Appeals erred in finding that NEPA “entail[ed] the further duty to include in
every EIS a detailed explanation of specific measures which will be employed to
30
mitigate the adverse impacts of a proposed action.”) (internal quotations
omitted) (emphasis in original). By phrasing several mitigation commitments as
prospective rather than definite, the defendants did not act arbitrarily,
capriciously or contrary to law.
10.
Delegating mitigation
The plaintiffs argue that the defendants did not undertake an
independent examination of what mitigation efforts the agencies should take.
Dkt. No. 31 at 39. They contend that the defendants relied exclusively on the
EPA and Army Corps of Engineers’ “uncritical” concurrence with a mitigation
memo drafted by project administrators. Id. at 41. The plaintiffs note that, after
the project re-design, the agencies discarded a mitigation condition that the
Army Corps’ of Engineers had previously mandated. Id. at 40. The plaintiffs
also say that because the re-design increased the amount of damage to upland
habitat that would result from the project, the defendants’ reliance on the Army
Corps’ concurrence with their mitigation strategy violated NEPA. Id.
It appears that after finalizing the Final EIS and ROD, the defendants
submitted a request for a wetland fill permit from the Army Corps of Engineers
under the Clean Water Act. Least Environmentally Damaging Practicable
Alternative (“LEDPA”) Memo p. 2-3 at SAR29904-05. Because the project would
impact a wetland (Wetland-8), the Corps imposed the following mitigation
conditions for the project before the Corps would issue a permit: (1) “Preserve
an offsite fen within the Upper Fox River Watershed to mitigate for impacts to
W-8; (2) Permanent, legal protection of the interior forest habitat and
31
surrounding uplands on Buzz Hardy property; and (3) Mitigate for trees lost in
the primary environmental corridor upland woods south of Sunset Drive.” Id. at
2, SAR29904-05. In response, the defendant agencies re-designed the project
to the Rotated Pebble Creek West alignment. Id. at 3, SAR29905. This redesign
avoided impacting Wetland-8, which meant that they were no longer required
to obtain a wetland fill permit from the Corps. Id. at 4-5, SAR29905-06.
The Corps imposed its original mitigation conditions based on the
project’s impacts on Wetland-8. Id. at 2, 29904-05. Once the redesign avoided
that impact, both the EPA and the Corps concurred with the agencies’
mitigation strategy and no longer required the permanent, legal protection of
the interior forest habitat and surrounding uplands on the Buzz Hardy
property. See EPA Letter, June 6, 2016 at SAR29922-23 (“Based on EPA’s
review of the re-evaluation, the County’s letter, and U.S. Army Corps of
Engineers’ letter dated April 25, 2016 . . . EPA has determined that permanent,
legal protection of the Hardy woods should become a voluntary measure.”); see
also Department of the Army Letter, April 25, 2016, at SAR29920 (“We concur
with the lead agency finding that the Rotated PCW alternative proposed for the
southern segment represents the least environmentally damaging practicable
alternative . . . . While we do not find that legal protection of the upland forest
habitat is required to ensure that the Rotated PCW alternative remains the
LEDPA, it remains an environmental benefit worth pursuing.”)
The Corps required the upland forest mitigation only because of the
project’s projected impacts to Wetland 8. Once the redesign avoided those
32
impacts, it followed that the upland forest mitigation requirement would drop
from the picture. The court cannot conclude that the defendants impermissibly
delegated their NEPA duties to the Army Corps’ of Engineers. The record shows
that the agencies presented a detailed discussion of the Rotated Pebble Creek
West alignment in their memo to the Corps and to the EPA. See LEDPA at
SAR29903-29910. The defendants requested agency concurrence, and they got
it. While the new, Rotated Pebble Creek West alignment had greater upland
habitat impacts, it also avoided altogether the impacts to Wetland 8. The
court’s role is not to second-guess the expertise of the agency in its weighing of
certain environmental benefits as opposed to others; the court reviews only
whether the agency followed the procedures prescribed by NEPA. See Habitat
Educ. Ctr. Inc., 593 F. Supp. 2d at 1024.
11.
Supplemental environmental impact statement
The plaintiffs argue that the defendant’s reevaluation document
identified significant environmental impacts from the project’s redesign,
meaning that the redesign required a Supplemental EIS. Dkt. No. 31 at 42.
They note that the redesign called for an additional 11.2 acres of right-of-way
and that in the intervening time between the Final EIS and the reevaluation,
the defendant agencies identified approximately 6,500 tons of hazardous waste
located within the project corridor. Id. The plaintiffs complain that the
defendants ignored their obligation to analyze the environmental effects of
removing the 6,500 tons of waste by simply stating that the waste’s removal
would be a positive effect. Id. The plaintiffs note that the CEQ regulations
33
require a Supplemental EIS whenever an impact is significant—positive or
negative. Dkt. No. 38 at 16. The plaintiffs also fault the defendants for failing to
discuss the CEQ regulations’ factors for determining whether a re-design will
have “significant” environmental effects. Id. (citing C.F.R. §1508.27).
The defendants counter that the reevaluation document showed that the
relatively minor rotation lessened the adverse environmental impacts evaluated
in the Final EIS without causing other significant environmental impacts not
evaluated in the Final EIS. Dkt. No. 37 at 27. They also note that the
reevaluation concluded that the right-of-way changes would not significantly
change the environmental impacts of the project. Id. citing SAR29875.
“CEQ regulations . . . impose a duty on all federal agencies to prepare
supplements to either draft or final Environmental Impact Statements if there
‘are significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts.’” Marsh, 490 U.S.
at 372 (1989) (citing 40 C.F.R. §1502.9(c)). When deciding whether to prepare a
supplemental EIS, the agency applies a “rule of reason,” and “need not
supplement an EIS every time new information comes to light after the EIS is
finalized.” Id. at 373. As for a court reviewing the agency’s decision, the
Supreme Court has concluded that the APA’s “arbitrary and capricious
standard of §706(2)(A) governs a court’s review of the ‘narrow question’ of
whether an Environmental Impact Statement needed to be supplemented and
should be set aside.” Id. at 375-76.
40 C.F.R. §1502.9(c) provides that:
34
(1) Agencies shall prepare supplements to either draft or final
environmental impact statements if (i) the agency makes
substantial changes in the proposed action that are relevant to
environmental concerns; or (ii) there are significant new
circumstances or information relevant to environmental concerns
and bearing on the proposed action or its impacts.
40 C.F.R. §1502.9(c). At 40 C.F.R. §1508.27, the CEQ regulations define the
considerations by which agencies determine whether an impact will be
“significant.” “Significance” under §1508.27 has both “context” and “intensity”
considerations. As for “intensity,” 40 C.F.R. §1508.27(b) lists ten factors for
agencies to consider. Paraphrased, those factors are:
(1) Impacts that may be both beneficial and adverse;
(2) The degree to which the proposed action affects public health or
safety;
(3) Unique characteristics of the area;
(4) The degree to which the effects on the quality of the human
environmental are likely to be controversial;
(5) The degree to which the possible effects on the human
environment are highly uncertain or involve unique or unknown
risks;
(6) The degree to which the action may establish a precedent;
(7) Whether the action is related to other actions with individual
insignificant but cumulatively significant impacts;
(8) The degree to which the action may adversely affect significant
sites or important resources;
(9) The degree to which the action may adversely affect an
endangered or threatened species in the ESA; and
(10) Whether the action threatens a violation of law.
While the defendants’ reevaluation document did not include citations to
the Code of Federal Regulations, the document considers the above factors. In
Section Five, “Affected Environment and Environmental Consequences,” the
reevaluation contains topic headers that specifically address certain of the
factors listed in 40 C.F.R. §1508.27(b). SAR29873. Section 5(A), “Affected
35
Environment Changes,” considered whether the redesign would affect “any
impact categories (e.g. transportation infrastructure, protected resources, land
use plans, etc.),” which corresponds to 40 C.F.R. §1508.27(b)(8). Id. Section
5(B) “Law, Rule, Code Changes” considered whether any changes to laws, rules,
or codes that could affect any impact categories, which corresponds to factor
40 C.F.R. §1508.27(b)(10). Id. Section 5(E) “Social and Cultural Impacts”
considered the ways in which the re-design may impact the human
environment, which corresponds to 40 C.F.R. §1508.27(b)(4) and (b)(5). Id., at
SAR29876. Sections 5(J)(K)(L)(M) & (O) all considered different, unique land
characteristics of the area, which corresponds to factor 40 C.F.R.
§1508.27(b)(3). Id. at SAR29878-83. And Section 5(N) “Threatened and
Endangered Species (T&E) Impacts” considered whether there are any
threatened or endangered species in the study area, corresponding to 40 C.F.R.
§1508.27(9). Id. at SAR 29882. The plaintiffs’ contention that the defendants
failed to consider the significance factors of the CEQ regulation is not
supported by the record.
As for whether the redesign’s new right-of-way requirements were not
significant, the court cannot conclude that the defendants reached that
decision arbitrarily. Section 5(D) of the reevaluation (along with Tables 1 and 2
of the reevaluation (SAR29874-29875)) explicitly detail the changes in the
right-of-way and conclude that: “the new right of way required as a result of
this re-evaluation are [sic] not significant impacts. Most of the new right-of-way
36
required as part of this re-evaluation is strip takings resulting in minor impacts
to properties and do not impact the use of the property.” Id. at SAR29875.
As for the plaintiffs’ charge that the defendants failed to analyze the
discovery of 6,500 tons of toxic waste, the reevaluation document noted that
this discovery “was not the result of the Rotated Pebble Creek West alignment.”
Id. at SAR 29884. It then cites and provides a concurrence letter from the
Wisconsin DNR that approved of the removal of the contaminated soil.
Appendix D to Reevaluation, Ltr. To Mark Walter (Jan. 28, 2016) at SAR29930.
The reevaluation document further concludes that “this removal of hazardous
waste due to grading and construction of an underpass for the Glacial Drumlin
State Trail is not a significant impact.” Id.; see also Comment 15, SAR 3000708 (agency response to comment charging that the waste is a significant
impact).
The record shows that the defendants undertook significant analysis of
the project’s redesign before concluding that the re-design did not require a
Supplemental EIS. See SAR29871-29892. The court cannot conclude that the
defendants violated NEPA in this regard.
12.
The Endangered Species Act
Finally, the plaintiffs contend that the defendants didn’t properly consult
with the Fish and Wildlife Service (“FWS”) regarding the impacts of the project
on the Northern Long-Eared Bat. Dkt. No. 31 at 47. They allege that no surveys
accounted for the effects of the project’s redesign on the bats’ habitat. Id. at 48.
They further argue that the Wisconsin DOT performed deficiently brief surveys
37
of the bats’ habitat in August 2015 and that the Wisconsin DOT did not share
these August 2015 surveys with the FWS. Id. Thus, the plaintiffs conclude, the
FWS arbitrary and capriciously concurred with the Wisconsin DOT by not
relying on the best available science. Dkt. No. 31 at 47 (citing 16 U.S.C.
§1536(a)(2); 50 C.F.R. §402.14(d) (“Federal agency requesting formal
consultation shall provide the [FWS] with the best scientific and commercial
date available . . . for an adequate review of the effects that an action may have
upon listed species or critical habitat.”))
“The Endangered Species Act of 1974 (ESA), 87 Stat. 884, as amended,
16 U.S.C. §1531 et seq., is intended to protect and conserve endangered and
threatened species and their habitats.” Nat’l Ass’n of Home Builders v.
Defenders of Wildlife, 551 U.S. 644, 651 (2007). “Section 7 of the ESA
prescribes the steps that federal agencies must take to ensure that their
actions do not jeopardize endangered wildlife and flora.” Id. at 652. Section
7(a)(2) of the statute provides, in relevant part, that “[e]ach Federal agency
shall, in consultation with and with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by such agency . . . is not likely
to jeopardize the continued existence of any endangered species or threatened
species . . . .” 16 U.S.C. §1536(a)(2).
A separate section of the ESA, Section 4(d), provides that “whenever any
species is listed as a threatened species pursuant to subsection (c) of this
section, the Secretary [of the Interior] shall issue such regulations as he deems
necessary and advisable to provide for the conservation of such species.” 16
38
U.S.C. §1533(d). Here, the FWS issued a Final 4(d) Rule for the NLEB on
January 14, 2016. 81 F.R. 1900-01, 2016 WL 147856 (Jan. 14, 2016).
In May 2016, the FWS issued a “Programmatic Biological Opinion for
Transportation Projects in the Range of the Indiana Bat and the Northern LongEared Bat.” (“BO”) See SAR30256. The document stated that its purpose was to
“streamline the Endangered Species Act (ESA) consultation process that is
required when these projects may affect . . . the federally listed threatened
northern long-eared bat (Myotis septentrionalis) (NLEB); and promote better
conservation outcomes from these project [sic] for both species.” Id. at
SAR30262. This consultation document “provides advance USFWS
concurrence with ‘not likely to adversely affect’ (NLAA) determinations that are
consistent with these criteria, subject to project-level verification.” Id. at SAR
30262-63.
On June 15, 2016, an agent with the Wisconsin DOT e-mailed the FWS
requesting approval of the proposed project. The e-mail stated that “WisDOT
intends to rely on the programmatic biological opinion developed for the final
4(d) rule and this submittal to satisfy our Section 7(a)(2) responsibilities, as
outlined in the streamlined consultation framework.” The request included the
following:
In accordance with the final 4(d) rule issued for the northern longeared bat, WisDOT has determined that the proposed activity,
described in greater detail below, will not result in prohibited take
of the NLEB. The activity involves tree removal, but will not occur
within 0.25 miles of a known hibernacula, nor will the activity
remove a known maternity roost tree or any other tree within 150
feet of a known maternity roost tree from June 1—July 31.
39
Id. In response, on July 15, 2016, an officer from the FWS concluded that
“[c]onditions and documentation for use of the northern long-eared bat final
4(d) rule have been properly implemented.” SAR29928.
The plaintiffs have not alleged that the project will occur within .25 miles
of known hibernacula or that it will remove a known maternity roost tree or
any other tree within 150 feet of a known maternity roost tree from June 1 to
July 31. Instead, they argue that those metrics should not be enough to
conclude that the project will not adversely affect the bats. They provide no
authority showing why the 2015 acoustic surveys provide a superior scientific
metric than measuring the presence of hibernacula or maternity roost trees.
The plaintiffs have given the court no reason to question the expertise of the
FWS in its determination that the presence of hibernacula and maternity roost
trees supplied a superior metric for determining whether a project would result
in a prohibited take of the bats. See San Luis & Delta-Mendota Water Authority
v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014) (“The determination of what
constitutes the ‘best scientific data available’ belongs to the agency’s ‘special
expertise . . . . When examining this kind of scientific determination, as
opposed to simply findings of fact, a reviewing court must generally be at its
most deferential.’” (quoting Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87,
103 (1983) (emphasis in original)).
The court cannot find that the agencies acted arbitrarily and
capriciously under the ESA.
40
IV.
CONCLUSION
The plaintiffs have not demonstrated that the agencies’ decisions and
actions were arbitrary, capricious, an abuse of discretion or otherwise not in
accordance with the law.
The court DENIES the plaintiffs’ appeal of the agency decision. Dkt. No.
27.
The court DENIES AS MOOT the plaintiffs’ motion for a telephonic
status conference. Dkt. No. 45.
The court ORDERS the case DISMISSED.
Dated in Milwaukee, Wisconsin this 18th day of October, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge
41
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