|
|
small (250x250 max)
medium (500x500 max)
Large
Extra Large
large ( > 500x500)
Full Resolution
|
|
WE NEED YOUR HELP We anticipate needing increased community support. Please let us add your name to our mailing list: Name: Address: Phone: Please accept the enclosed donation: . $5 $10 $20 $ I can help with ----- Please return this form and any donation to: CSSC, Box 3501, Logan • CITIZENS FOR A SAFE AND SCENIC CANYON WE SUPPORT MAKING LOGAN CANYON SAFE • WIDENED BRIDGES • MORE PULLOUTS • CLIMBINGrruRNING LANES • PARKING AREAS • MORE SIGNS • BEITER MAINTENANCE WE SUPPORT KEEPING LOGAN CANYON BEAUTIFUL • RESPONSIBLE IMPROVEMENTS IN LOGAN CANYON • PRESERVING ONE OF THE LAST, BEST PLACES IN UTAH Citizens for a Safe and Scenic Canyon/CPLC P.O. Box 3501, LOGAN, UT 84321 Citizens for a . Safe and Scenic Canyon OUR EARTHLY TRUST: LOGAN CANYON MAKE IT SAFE KEEP IT BEAUTIFUL · . . 11CI-TI-ZENS FOR A SAFE AND SCENIC CANYON WHAT IS CSSC? Citizens for a Safe and Scenic Canyon (fonnerly Citizens for the Protection of Logan Canyon) is an organization that is dedicated to providing a safe highway through Logan Canyon while still preserving its scenic beauty. We support making the canyon safe by replacing and widening bridges; constructing more pullouts for slow drivers; adding several climbing lanes, turning lanes, and parking areas; and putting in more and better signage in the canyon . . WHAT IS THE HISTORY? For the last thirty years there has been a drive to punch a wider, straighter, faster highway through Logan Canyon. In 1961, five miles of the lower canyon were "improved"; in 1968, six more--up to the Right Hand Fork. Under new federal regulations, UDOT was required to research the environmental impacts of their construction plans. After a sevenyear study, they have come up with their "preferred alternative." Unfortunately, their study, in the view of many, has been marked by slipshod procedures, insufficient and incorrect data, and lack of consideration for the environment. Citizens for the Protection · of Logan Canyon conducted their own study and prepared the Conservationists' Alternative, a road construction plan that proposes a safe canyon without destroying its scenic beauty. COMMON QUESTIONS • Does CSSC advocate a total hands-otT approach to Logan Canyon? NO! We favor a gradual, go-slow approach to working on the highway, beginning with the replacement of dangerous, deteriorating bridges. • Is the Utah Department of Transportation (UDOT) "preferred" alternative safer? NO! There is a real possibility that a wider road with faster speeds will in fact increase both the number and severity of accidents in the canyon. • Will the savings in travel time significantly benefit the neighboring communities? NO! By their own figures, the "preferred alternative" will only reduce travel time from 48 to 43 minutes. It would take a lifetime of these 5- minute savings to equal the 15-20 years of delays and disruptions caused by this massive project. • Will an improved highway promote economic development in Cache Valley? NO! The disruption to the canyon will hurt tourism, Cache Valley'S major economic asset. WHAT DO THEY WANT? Utah Department of Transportation wants to obtain federal funds for a massive highway project to tum the Logan Canyon road into a commercial highway, at a cost to the public of over $35 million dollars (CSSC's alternative would cost $15 million)! UDOT predicts that the project will take at least 10 years to complete, with the real possibility that it will take as long as 15 to 20 years. We only have to look at the destruction, delays, and devastation to Sardine (Wellsville) Canyon to get an inkling of what this project would really be like in our backyard. In UDOT's plan, the road would be re-routed, on average, once every three-quarters of a mile throughout the length of the canyon. Huge cuts are planned to achieve a straighter alignment and substantially increased road width. This massive project will be devastating to the scenic beauty of Logan Canyon. Roadside plants and forests will be replaced by unsightly gashes on hillsides. In .the lower "improved" section of the canyon, barren slopes have not revegetated yet, though the cuts were made 20 to 30 years ago. Extra-wide shoulders (clear zones) of 22 feet will destroy the forest on each side of the road, cutting a wide swath through the cottonwood, riverbirch and box elder trees that line the river canyon. The river itselfwill be intruded on, lined by 2,000 feet of "riprap" (chunks of rock and cement). Logan River's wild and scenic qualities will be destroyed. • LOGAN c!ANYON: Summarizing Two "Alternatives" US-89 LOGAN CANYON Accompanying this map is a table comparing key goals of two alternatives regarding the "development" of Logan Canyon. These goals are listed by canyon section. o 2 • Alternative #1 UDOT Plan of Action I Go relatively light on the canyon between Right Hand Fork and Lower Twin Bridge (4 miles). The road would be left at its current width and alignment, but curb and gutter would be added and several curves will be flattened. Burnt Bridge would be widened to 34 feet, requiring river bank modification. The road near Cottonwood Creek culvert would be raised 2 feet to protect the road from occasional damage due to flooding. 2 Substantially widen the road from Lower Twin Bridge to just above Rick Springs (4 miles) from current 26 feet to 40-46 feet. Six curves would be cut and major parking areas would be built at Temple Fork and Rick Springs. Upper and Lower Twin Bridges would be moved upstream from their present position and widened to 38 feet. 3 Drastically widen the road from above Rick Springs to the Rich County line (13 miles). TAe road would be widened from 26 to 47 feet for half the distance (6.5 miles) to allow for passing lanes, with the remainder widened to 40 feet. Nearly ten feet will be cut into the vertical rock face located after the Beaver Creek area (milepost 399.1). There would be five curve cuts and major construction at the Franklin Basin, Tony Grove, Red Banks campground and Beaver Mountain turnoffs. 4 Essentially build a new road from the Rich County line to Garden City (7 miles). There would be a continuous passing lane from near Garden City to the Cache County line (47 foot width), 19 curve cuts, and substantial additional construction. • Alternative #2 ConseNationist Plan of Action • I Essentially leave the canyon between Right Hand Fork and Lower Twin Bridge (4 miles) as it is presently. Improve signs signaling advisory speeds and curve warnings. The road would be left at its current width and alignment. Burnt Bridge would be widened to 28 feet. The road near Cottonwood Creek culvert would be widened to 28 feet and raised 1.5 feet to protect the road from occasional damage due to flooding. 2 Move Upper and Lower Twin Bridges towards river to lessen curve and widen to 28 feet, locating a slow vehicle turnout where the present road cut goes through. Improved signs signaling curves and intersection at Temple Fork. Widen road at Ricks Springs to 28 feet, maintaining existing parking. Add signs warning of pedestrian crossings. 3 Add three climbing lanes and provide a 90 degree intersection and deceleration lane to Beaver Mountain Road. Improve intersection at Tony Grove. Replace the Tony Grove Creek Bridge, Red Banks Bridge, Beaver Creek Bridge, Beaver Creek Structure, and Amazon Hollow Structure without curve cuts and widen to 28 feet. Provide signs and approaches at the Bear Lake Overlook. 4 Improve signs on advisory speeds and curve warnings. Provide active maintainance for the road. The road would be left at its current width and alignment. Information cited: US Highway 89 Final Environmental Impact Statement. • • • June 28, 1994 To: Dave Berg From: Bruce Pendery Re: Follow-up to last week's meeting Enclosed are the "hot spots" we would appreciate receiving narratives on. I forgot to get a copy of the letter we sent out to some of our selected supporters, but will get that to you ASAP. I know time may be a problem, but if its possible to get the narratives to me by July 11 it would be helpful (address: 755 Canyon Rd., Logan, 84321). We will be having what should be our last outreach program that evening, and the narrative would be useful. We will be talking (probably via letter)to additional people (ie, the vast majority of our supporters) after July II, but that will be more to explain what we've been doing rather than to get input on what we're doing. I will call late this week or next to discuss a couple of things with you. I would like to find where we stand with getting a copy of the ROD. That's critical to us. I would also like to discuss how the Forest Service feels about just amending relative to the bridges, as well as a few other things . HOT SPOTS Curve #5 MP 384 and Curve # 29 MP 387. How will the accident studies be handled and what efforts will be made to reduce the aesthetic impacts of these cuts while also avoiding the river? Lower Twin Bridge, The Dugway, Upper Twin Bridge. What efforts will be made to minimize the size of cuts and associated aesthetic impacts? What efforts will be made to minimize any alignment shift to Upper Twin Bridge? How will the cuts along the Dugway be handled to minimize aesthetic impacts and the size of the cut? Temple Fork. Describe how the decision process will work relative to whether a "short" up-canyon turning lane is possible. How will impacts to the river and aesthetics be minimized, considering also the need to "straighten" the angle at which the Forest Road intersects the highway. Passing Lanes in the lower Upper Canyon of Section Two (see your letter of 3/4\94, item 3). Elaborate as much as you can on how, when, where, if, etc. the decision to put in these passing lanes will be made. • Beaver Creek, Franklin Basin Bridge, Amazon Hollow Bridge. • Elaborate as much as you can on what efforts will be made to minimize riparian impacts. Especially describe any anticipated retaining walls or intrusions on the rivers. Tonv Grove, Beaver Mountain, and Franklin Basin Intersections. Elaborate as much as you can on what efforts will be made to minimize the magnitude and/or impacts of these activities. Passinq Lane Above Beaver Mountain turnoff, especially as it relates to the old-growth forest and curves 69, 70, and 71. To what degree can impacts on the forest be minimized; has an alignment shift been approved? How will aesthetic impacts of this climbing lane be minimized, especially to what degree will the climbing lane involve cutting into the hill as opposed to filling? Curve 85 Old Growth Forest near Limber Pine. What options exist to minimize impacts to this area, and particularly can the passing lane be ended a little sooner--say near the Sunrise Campground? Be as specific as possible. As I mentioned, this is a critical site to many people and we will need to discuss it fully at our next meeting. How will the old road from the Limber Pine Summit to Garden City be Handled? That is, people want to know if old sections of road • in areas where a new alignment is created will simply be . abandoned, or will the pavement be torn up and the soil revegetated? • • • Portion of Section 1b Above Ricks Springs. Describe as fully as possible how impacts to riparian habitats will be avoided in this area. Mitioation. Discuss each of the following a fully as possible: -What is laydown fencing contemplated in the Tony Grove area and is it really needed, especially since the Forest Service will soon own the land and possibly reduces livestock numbers -Many people are concerned that mitigation is simply another big construction project with nearly as many impacts as the construction project prompting the mitigation. How do you respond to this, and what can be done to alleviate this concern? -How will rip-rap at bridges be minimized or better yet avoided altogether. -To what degree will contractors and especially equipment operators be given training to ensure they minimize the impacts their machines can have. -Could UDOT include the following publication as the basis for its construction: "National Cooperative Research Report 221. Transportation Research Board. Erosion Control During Highway Construction. Manual on Principles and Practices" 1980. AASHTO and FHWA sponsored. Or is there a more up-to-date publication UDOT would specifically use as a guide? -To what extent will not only native vegetation be used, but an attempt be made to mimic existing plant communities. -To what degree will followup be made to ensure mitigation actually works, and to what degree will UDOT "do what it takes" to make mitigation work? Especially consider vegetation. -How will excess rubble be handled. -How will staging areas be handled . • • • Mr. Dave Berg UDOT Salt Lake City UT Dear Mr Berg, August 9 , 1994 These comments are by no means encyclopedic; a brief review of only scattered sections of these documents revealed so many problems that I have not even been able to do a through reading of it. While there is much progress that has been made since last December, there is still much to be disappointed about in these documents. The purpose and need section of the ROD (Appendix A) is again one of the most flawed" sections of this document. This appendix presents the first description on how traffic flows for accident rates were calculated (this information was never presented in the Technical memorandums); thus this is the first opportunity for comment (and literally no more than 5 members of the public have had access to this new information). As we discussed in our August 1 meeting, there are fundamental problems with the data and the methodology which call into question whether any accident rate data should be presented in the EIS or ROD. 1. Traffic flows in the "improved" section (mp 374.64-378) are artificially inflated by the inclusion of the 14,000 AADT adjacent to Utah State University (outside • • • Flint comments of the canyon and outside of the lIimproved ll section mentioned above). This high AADT is used in the weighted average for this section, thus the accident rate is artificially redu ced . The true accident rate for this lIimproved" section is likely 3 or 4 times higher than what your document shows. 2. The mp 378 - 383.3 section had the counter in it orig i na lly and traffic flow presented in the FEIS is adjusted to this location even though the counter is currently located in Rich county. This is stated on page 3 of the Appendix A, and you agreed that it was correct. Thus the traffic flow to be used in calculating accident rates in this section is near 1800 rathe r than over 3000. Simply saying that the AADT is 3000 in the Utah Road Files (Appendix A p. 3) does not make it correct. Again, the true accident rate in this improved section is much higher than that shown in AppendixA. 3. The ta ble on page 5 of Appendix A has a similar problem: The true traffic flow is much lower than shown in the table, thus the fatality rate for the Lower Canyon is much higher than shown and may be the highest in the Canyon. 2 Flint comments 4. As we dis c ussed in our August 1 meet i ng, there are fortunatel y so few fatalities tha t their distri bution may be s omewhat random. A better perspective on acciden t severity may be gained by examining the injury accident rate. 5. An attempt is made on p. 2 of the Appendix to justify using lower traffic flows in recent years to calculate accident rates even though it is claimed elsewhere that traffic is increasing. Rather than dispute this point by point, let us look at your flow data. In recent years you have traffic increasing in the Lower Canyon and decreasing in much of the rest of the canyon. Thus what you are saying here is that the fundamental characte~ of vehicle use of this roadway has changed; most of the traffic only drives up into the Lower Canyon and then turns around and goes back out. How do you explain this? Isn't it readily apparent that this oddity is caused by your inflation of the traffic flows for the Lower Canyon? 3 To justify conclusions, as in #1 above, we are told that "standard methods" are used, that they are "accurate" and based on "professional methods" (all on p. 3), yet saying this does not make an incorrect analysis right . this type of pontificating should be stricken from the ROD; the methods of analysis should • • • • • • Flint comments 4 be able to stand up on their own. Appendi x p. 2: Here a claim is made that a signing project was done in '86. A review of the public comments (Lanner letter page 9-74 of FEI S) suggests tha t the signing was completed in '83 rather than ' 86. From personal recollection (since '86 was the year the EIS started), all I remember happening in '86 was that a contractor was hired to replace delineators. They were placed blindly according to some "standard", consequently most de-facto turnouts were blocked until some unfortunate drivers ran over the things. Cou ld you provide more details on the signing project? Specifically, check the year and describe the project . We have never received an explanation why the expected accident rate is higher for the "improved" sections (Table 1-2). If "improvement" raises the expectation of accidents, then we don't want t o do it. I am disappointed that there is still confusion on 4(f) site #7. Perhaps this confusion would not have occurred if the public was allowed some input into the 4(f) site selection process. Appendix A h a s site 7 at 391.6, the ROD (p. 5) says the passing lane starts a t 391.6. A passing lane should not start at a heavily used recreational turnout such as this; one can foresee safety problems as different up-canyon vehicles simultaneously try to pass and make left turns. Flint comments The biological assessment in Appendix A lists Draba maguirei as "known onl y f rom Box Elder a nd Heber c ounties" yet Shaw (1989, Vascu la r Plants o f Northern Utah) also l i s ts it in Cache County. Can you acc ou nt for this d isc repancy? Also, why is there no mention o f t he newly described spec i es of Viola that we mentioned in earlier correspondence? It a ppear s endemic to Logan Canyon. In the ROD itself (p. 4) states that the Upper Middle Canyon will serve a s a transition reg ion to the 40' pavement width of the Upper Canyon. Note that, with the reduction of the pavement in the Tony Grove flats and Beaver Creek areas to 34', this logic is no longer valid. The ROD (p. 7) states tha t the Conservationists' Alternative would provide 28' wide bridges. As I explained last year at the transportation commission me et i ng, we initially selected 28' because your e ngineers selected i t for the spot improvement alternative. I spent a consider able amount of time at that commission meeting explaining that we had no problem with wider bridges. Did I take a day off work to drive to Salt Lake city for this meeting and accomplish nothing? Were all the commissioners and your staff asleep? The ROD on page 7 also neglects to mention that we proposed (from the very beginning) that the Beaver Mountain intersection be improved, along with a right turn lane at Right Fork. Thus the • • • Flint comments Conservation ists' Alternative propo s e s 3 intersection improvements yet you only credit us with one. You talk of "unresolv ed s a fety concerns a t Red Ba nks Campground yet we h ave never seen any documentation o f this. In short, you are trying to make our al ternative appea r to be virtually "no action". We expressed th ese concerns before (se page 60 of Appendix B) and you put more effort into deny ing our concerns than in correcting the problem. Appendi x B continues the ongoing i gnoring of concerns which has plagued this EIS since its inception. As an example, on p57, 6 I spelled out i n great detail how rea listic alternative routes ~ should be considered (the world does not focus on Garden City as its ultimate destination, as you imply). For this effort, I am • greeted with non-response #4. So was John Carter on p. 79. Or look again at my letter at response #3. I asked why the response PI02 was not reflected in the text of the EIS. This is a valid question and i t was ignored. You did the damage - decision makers that read the text of the FEIS will not get the information that was in PI02. How do you make up for this? Or look at John Sigler's letter. Whoever wrote response #6 doesn't seem to have a clue how citations are used in technical documents. Or look at how the deta iled comments of Kate Boyes were ignored with an 8 word non-response . In summary, the problems which we have pointed out before Flint comments still persist . Rather than point out each one in great detail, let me suggest you go back to the comments submitted throughout the past 8 years and provide an analysis from an objective rather than a defensive posture. That would go a long way toward building the trust that is needed for this project to succeed. Sincerely, Steve Flint • • • • 0 -1 : ~ -I FTl FF'Clll M E M 0 RAN DUM TO: Bruce pendery FROM: Appel & Mattsson DATE: August 16, 1994 RE: Time for Filing Lawsuit under NEPA Introduction You asked that we determine whether there ~s a statute of limitations for f:'ling a NEPA claim1 to assist your group in determining when and if to bring a lawsuit. The short: ar.swer to your question is that NEPA does not contain a statute c: limitations (or time limit) by which suit must be brought. Jones v. Gordon, 621 F. S upp. '"7, 10 (D. Alaska 1985) . See also, Sierra club v. Penfold, 857 2.20 1307, 1315 (9th Cir.1988) ("Neithe~ NEPA nor the APA [Administrative Procedure Act] contain a specif~c statute of limitat~on.~ ); Citizens for Environmental Oua~ity v. U.S., 731 F . Supp . 970, 992 (D.Colo. 1989) ("NEPA and the NFY'A [National Forest Management Act] do not set forth a stat.ute of limitations. II ) However, II ~o~~rts have relied upon the doct.rine of laches to bar stale (NEPA] s·,:i ts . II Jones, supra, at p. 10. See also, Park Count y Resource Council, Inc. v. U. S . Department of Agriculture, 817 F . 2d 609,617 ; lOth Cir . 1987) (lltimelir.ess challenges to NEPA actions have rout~nely involved analysis under the doctrine of If claims are brought under other st:atutes or laws, the statutes of limitat:ion may be different.. • • 0 -1 : 2 -1 F'f"1 FF'()fl 11_1 M E M 0 RAN DUM TO: Bruce pendery FROM: Appel & Mattsson DATE: August 16, 1994 RE: Time for Filing Lawsuit under NEPA Introduction You asked that we determine whether there ~s a statute of limitations for f:'ling a NEPA claim1 to assist your group in determining when and if to bring a lawsuit. The shor'c ar.swer to your question is that NEPA does not contain a statute c= limitations (or time limit ) by which suit must be brought. Jones v. Gordon, 621 F . S u pp. '7, 10 (D. Alaska 1985) . See also, Sierra Club v. Penfold, 857 P.20 1307, 1315 (9th Cir .1988) ("Neithe~ NEPA nor the APA [Administrative Procedure Act] contain a specif:'c statute of limitat:on."); Citizens for Environmental Oua~ity v. U.S., 731 F.Supp . 970, 992 (D.Colo. 1989) ("NEPA and the NF:VA [National Forest Management Act] do not set forth a statute of limitations.") However, "co~~rts have relied upon the doct.rine of laches to bar stale (NEPA] s ',:i ts. " Jones, supra, at p. 10. See also, Park County Resource Council, Inc . v. U. S . Department of Agriculture, 817 F . 2d 609,617 ilOth Cir. 1987) (lltimelir.es6 challenges to NEPA actions have rout:"nely involved analysis under the doctrine of If claims are brought under other st.atutes or laws , the statutes of l i mitation may be different. laches . " ) Laches is defined as neglect t o assert a right or claim which, taken together with the lapse o f time and other ~ circumstances causes prejudice to the adverse party. Dictionarv. Black's Law Laches According to courts that have addressed the issue, an environmental act i.on may be barred by the equi table de fense of laches if "(1) there has been unreasonable delay in bringing suit, and (2) the party asserting the defense has been prejudiced by the delay. " 970, 992 687 F.2d Colorado Citizens for Environmental Quality v . U.S., 731 F.Supp. (D.Colo . 1989) (citing Jicarilla Apache Tribe v. Andrus, 1324, 1338 (lOth Cir. 1982). In Citizens, supra, the District Court held that there had been neither unreasonable delay nor sufficient prejudice for the doctrine of laches to apply. The court determined that the case had been brought within a "reasonable time after application of regulations at issue in [the] case" and there was no prejudice to the government. rd. ac 993. See also, Park County Resource Council, Inc. v. U. S. DeDartment of Agriculture, 817 F.2d 609, 617 (10th Cir. 1987). Courts have concluded that "(l ) aches must be invoked sparingly in environm~ntal cases because ordinarily the plaintiff will not be ~he only victim of alleged environmental damage . A less grudging application of the doctrine might defeat Congress's environmental pol icy . " Park Cou::ty Resource Council, Inc. v. U. S. Department of Agriculture, 817 F.2d 609, 617 (10th Cir . 1987) (citing 2 • • • • Preservation Coalition, Inc. v. Pierce, 66 7 F.2d 851, 854 (9th Cir. 1982). However, there are instances when courts h ave precluded NEPA c laims under the doctrine o f laches . In Jicarilla Apac~e Tribe v. Andrus, 687 F.2d 132 4 , 1338 (lOth Cir. 1982 ) , the Tenth Circuit Court of Appeals held that there had been an unreasonable delay by the Jicarilla Apache Tribe in aSSerting its NEPA claim. 1d. at 113 8. The Tribe brought suit in April 1976 to contest four lease sa l es that took place between April 1 970 and September 1972. rd. This was found to be an unreasonable delay. 1.n The Court also found that the delay in bringing suit resulted prejudice to the lessees: [T]he delay resulted in prejudice to the lessee defendants. Because they had no notice that anything was amiss with their Jicarilla leases until the institution of this sui~, they have invested wel l over $12 million in lease in the fo~m of bonus payments, rentals, administrat i ve overhead costs, plus exploration, d~illing and production costs. Were ~hey to lose their leases ; much of that investment would be lost, not to mention the :OS5 of future profits based on investments already made . rd. at 1339. See also, National Parks & Conservation ~.ssociation v. Hodel, 679 F . Supp. 49, 54 (D.D.C. 1987) (laches bars the act ion) A similar argument may be made by UDOT co"trac':ors if the c itizens wait too ~ong to bring suit. You mentioned that your group may want to monitor the project and then bring suit if the project does not meet with your expectations. The risk is that UDCT, the .::ontra.:: to~s and/or the Federa l Highway Adminis:ration may claim un reasonable delay and prejudice . 3 In e valuating whether to bring suit, t here are other issues you r group should consider including the process for bringing suit and defenses available to the defendants including standing. ripeness, exhaustion of administrative remedies and mootness . The Complaint The typical NEPA case begins wi th the Plaint iff f i 1 ing a Complaint in federal court seeking both declaratory and injunctive relief. The Complaint gener31ly names the various federal agencies and officials, state officials responsible for actions alleged to violate NEPA as defendants. Law of Environmental Protect ion. §9.01[3)[b). In NEPA cases. either the Department of Justice or the local U.S. at:orney represents the federal agency . Id. It 1.S common for Plaintiffs to move for an injunction in order to speed. up the process. However, if the Plaintiff loses the injunction, the case may become moot Slnce the project will be built. at 9 . 01 (3] [b] (ivJ . It if orten advisable to consolidate injunction hearing and. hearing on the merits for that l'eason. Id. Venue Plaintiff can bring suit. (1) where defendant resides, (2) where cause of action arose, ( 3) when real property involved, where it is si:uated. or (4) where plaintiff resides if real property is not in"·cl ved. 28 U.S.C.A. 51391(e) In this case, suit would be brought in the Federal District Court for the State of Utah . 4 • • • • • • Standing To bring a NEPA suit, your group (and its members) must have standing. To prove standing, members of your group must show: (1) injury in fact and (2) that his/her interests are within the zone of interests intended to be protected by the statute or constitutional provisions on which the claim is based." Specter v. Garrett, 971 F.2d 936, 942 (3rd Cir . 1992 ) . Environmental as well as economic interests allow a plaintiff to meet the threshold requirement allowing him / her to bring suit as long as injury is particularized to those plaintiffs. The Complaint must state that Plaintiff uses and enJOYS the environmental amenity alleged to be threatened . If the Plaintiff is an organization, its members must allege personal threat. See ~, Sierra Club v. Morton, 405 U.S. 727 (1972). But see, Lujan v. National Wildlif= Federation, 110 S . Ct . 3177 (1990) (the:r-e must be an injury in fact and a connection of plaintiff to it.) Ripeness A procedural defense often raised by agencies 1S that a case is not ripe. This doctrine is generally used to pr~vent suits from being brought too early in the process. Ripeness should not be an 1ssue 1n your case. According to 40 C. F.R. §1500.3, a lawsuit should not be brought before a final EIS--"judicial review of agency compliance with these regulations [should] n0t occur befo:r-e any agency has filed the final EIS or has made a final finding cf no significant impact when such a finding will result in action affecting the 5 IJ8- 1 '=.-1 :<:'14 O.:J : 26Pr'] FF'IJr" T[I P,D';" • environment or ta~es action that will result in irrepar~ble injury." See als8, Sierra Club v. MOLTon, 514 F.Supp . 856 (1975 ) (generally challenges to individual pro jects under NEPA can only be brought after fina: agency approval of the project ) ; Environmental Rights Coalition v . Austin, 780 F.Supp. 5844 (S.D. Ind. 1991) (EA not completed therefore case not ripe. ) Inapplicability of NEPA ~lother defe~se raised by defendants sued under NEPA is that NEPA does not apply. Law of En'Ji ronmental Protection, §9. 01 [3J [bJ [viJ [El Although this defense is rarely successful, it is a factor to be considered . Any lawsuit brought by your group ' • must state specific violations of law and /or statute. Exhaustion of Administrative Remedies Government agencies have also used the defense that a plaintiff has fai:ed to exhaust his / her administrative remedies, but Courts have been reluctant to penalize Plaintiffs for tardily bringing to an agency's attention what ~he agency itself should have known from i~s own studies. See ~., Pari-: County Resourc,,= Council v. U. S . . Gepartment of Agriculture, 817 F.2d 609, 619 (10 th Cir . 1987 ) Mootness Anot.her de:e::.se used in NEPA cases is mootness. A cas~ 1S moot when "iz nc :onger presents a justiciable controversy bQca~se • l.SSUeS invol vea ~ave become academic or dead ." Black's :'-aw Dicticnarv. If :~e UDOT project gets toe far alo~g, your group may - .. , - ... '::'.u.l. ..... o f :-:1OC: ::ess . Conclusion • In determining when and if to bring a NEPA claim. your group must weigh competing factors. If your group decides to bring suit and does not want risk being dismissed based on the doctrine of laches, the safest approach is to file suit before the project begins and before bids are requested . The downside of this approach is that litigation lS costly and time consuming and by filing suit you become an adversary to UDOT. Your group would have to prove how UDOT (anci any other appropri~te agency or person) has violated NEPA or other applicable regulat~ons or law. The other opt~on is to monitor the fi~st phase of the projec~ and to bring suit later if the project does not meet with your • approval and expectations. The risk in cioing this is that a court may find that the~e has been unreasonable delay and prejudice the defendants and will dismiss your lawsuit. The benef i ~ lD. waiting is that you may determine a lawsui: is not necessary. In either case, if a lawsuit is filed. members of your gro~p must be able to show that the violation or action personally a~d adversely impacts them. Without standing. your group's claims wil: be dismissed. The third opt ~on is to come to an ~gree;-;'1en~ wi th UDOT (and an:' other relevant c;.ger.cl.es or pel'sons) by ' ..... hich your group would be allowed to monitor and have some control v'ller the project. You ment ioned that UDeT wants YOU1- gl-oup to delay bringing a lawsu':'t. . This may be advisa~le as long as your gro~p receives a benefit and • 7 not lose the right to bring suit in the future. This is an o ve~view of some factors to consider in making your decision. Have yC'...ir group think them over carefully. Once you have done this, ...... e can discuss the matter further and jointly determine which ap~~oach is best . 8 " - • • • \ August 12, 1994 Mr. Dave Berg Utah Department of Transportation 4501 South 2700 West Salt Lake City, Utah 84119 Dear Dave: Enclosed are the responses of Bruce Pendery, Steve Flint, and Shawn Swaner to the working copy of the Logan Canyon Highway Record of Decision (ROD) that you provided us with. We thank you for the opportunity to review the ROD before it is signed. cc: Nathan Hult Jeff Appel EPA Denver Office EPA Washington Office FHWA Region Office FHWA Washington Office Sincerely, Bruce Pendery , " COMMENTS OF BRUCE PENDERY REASONS WHY A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (SEIS) SHOULD BE PREPARED The extreme deficiencies in the Logan Canyon Draft and Final Environmental Impact Statements (DEIS and FEIS) that indicate an SEIS should be prepared have been brought to your attention previously (see letters from EPA, Haley and Stolebarger, and Appel and Mattsson, among others, submitted in response to the DEIS and FEIS). More particularly, the letter from Appel and Mattsson (see Appendix B of the ROD) pointed out that this whole process has been "out of sync" with what NEPA requires since the DEIS was essentially a scoping document, the FEIS functioned as DEIS, and so forth. This is not a matter of quibbling over details. At the core of the NEPA process is a policy that decisions significantly affecting the human environment will not be made arbitrarily and capriciously, and will be made with opportunities for informed public participation. By placing the whole NEPA process with regard to Logan Canyon out of sync, UDOT has violated those fundamental principles, thus the need for an SEIS. Safety provides a major illustration for this contention. Safety is a purpose and need identified for this project (see ROD, FEIS, DEIS). It is not a peripheral concern, it is central to the project. It is not a stretch to say that for many people the whole Logan Canyon project boils down to weighing environmental impacts of the project versus safety impacts. Yet 1 '. , ~ the safety data which are used to support and rationalize the safety purpose and need (and the attendant preferred alternative) have been and continue to be seriously in error. As early as a 1986 public hearing, UDOT attempted to present incorrect safety data to the public as a justification for the project, despite knowing the data were flawed. Environmentalists were forced to point this error out at the public hearing so as to get UDOT not to use it. And even at this late date in the process, the safety data in the FEIS has had to be recalculated for presentation in the ROD because once again environmentalists pointed out the obvious flaws plaguing the data presented in the FEIS (see Bridgerland Audubon Society, Citizens for the Protection of Logan Canyon, and Ron Lanner letters in ROD Appendix B). Thus, the safety data in the ROD is new information that has never been presented to the public (see Appendix A of the ROD as well as the ROD itself which have large sections devoted to explaining what went wrong with the safety analysis in the FEIS). Moreover, and most shockingly, the safety data in the ROD are still wrong, as the letter from Steve Flint, contained herein, points out. So at this almost terminal date in the NEPA process we still have flawed data being used to support a major purpose and need for the Logan Canyon Project. And the significance of this is that informed public participation in this process cannot take place. All the hundreds of people who commented on the DEIS and FEIS were presented with safety information that was wrong, as 2 the need to correct this information in the ROD demonstrates. And the ROD--even if the safety data in it were now correct--will not be seen by the vast majority of people who are concerned about this project. ROD's--almost by definition--are not intended to be vehicles for public participation. Thus, the significance of UDOT's out of sync approach to the NEPA process becomes clear: not only is the process out of sync, but with each step up the NEPA ladder toward project approval fewer and fewer people are able to review the project, and those who previously reviewed the project were presented with incorrect data purporting to support UDOT's preferred alternative. Therefore, an SEIS is needed not only because the data presented have been repeatedly wrong in the past, but also because each time UDOT presents the "corrected" data, fewer people are able to participate in the evaluating the decision the data supposedly supports. UDOT tries to avoid the need for preparing an SEIS, with its attendant wide-ranging public participation, by stating that certain individuals have been closely involved in the development of the modified preferred alternative (see, e.g., ROD Appendix B page 39, but this same statement appears in numerous other places in the ROD). But involving five individuals (Bruce Pendery, Shawn Swaner, Steve Flint, Nathan Hult, Jeff Appel) in this process--while greatly appreciated and we believe productive-simply cannot substitute for full-scale public involvement in an SEIS process. As has become clear recently, public sentiment 3 regarding this project is simply too diverse and widespread to believe that the above five people adequately provide for "public involvement" when a basic purpose and need for the project has never been adequately presented to the public. While we are viewed as knowledgeable about this project in the environmental community and to some extent are considered leaders, we simply cannot and do not represent the concerns of the hundreds--perhaps thousands--of people concerned about Logan Canyon. If UDOT wants informed public participation in this NEPA process it must provide for that via and SEIS. In addition to the fact informed public participation has been hampered, UDOT's modified preferred alternative is a arbitrary and capricious decision. The DEIS, FEIS, and ROD all make much of the fact safety will be improved if the preferred alternative is implemented. But what basis can there be for that assertion when the information it is based on has been flawed since at least 1986 and continues to be flawed? I have largely exhausted the topic of why an SEIS is needed. However, I will point out that the same analysis applies to 4(f) sites and to wildlife. The 4(f) documentation in the FEIS was also wrong in a number of instances and a has had to be corrected (see ROD Appendix A, 4(f) Map section, as well as the ROD itself). Likewise, UDOT presented essentially no information in the FEIS about the numerous sensitive species in Logan Canyon (see ROD Appendix B pages 28 and 35). The ROD contains some information on these species (see ROD Appendix A, USFS Biological 4 Assessment). Thus, just as for safety, informed public participation could not take place in regard to these critical issues because the information was wrong or absent. Moreover, simply presenting the information in the largely nonpublic ROD phase of the NEPA process does not correct the problem. CURRENT LEVEL OF ACCEPTANCE OF THE MODIFIED PREFERRED ALTERNATIVE WITHIN THE ENVIRONMENTAL COMMUNITY Repeatedly in the ROD UDOT states that consensus has been reached with the environmental community with regards to the modified preferred alternative. That is an incorrect statement, which we have made clear to UDOT. Not only is it incorrect, it makes it more unlikely compromise will be reached because those most opposed to the project would deeply resent UDOT unilaterally announcing that consensus exists. Let me be clear. Since last December we have had a several discussions with UDOT. The tone of those meetings has been constructive and positive. I personally want that process to continue because I believe compromise is preferable to confrontation. However, it is my opinion that a fully acceptable compromise has not been reached yet. Let me explain why. As the modified preferred alternative stands, conservationists would get most of what they want in 14% of the canyon (road stays on current width and alignment between mileposts 383.5 to 387.5, although there could be some curve cuts we don't believe are necessary). UDOT gets everything it wants 5 .t in 42% of the canyon (full U.S. highway standard between mileposts 399.8 to 411.8, with almost 8 miles of that 12 miles having a passing lane). Neither UDOT or conservationists get exactly what they want in 43% of the project area (mileposts 387.5 to 399.8). At a meeting in early July Dave Berg asked me how far along toward compromise we were. Based on the above considerations, I said I thought we were 75% of the way there. I believe that's about where we still stand. Seventy-five percent of a potential compromise does not equal compromise, let alone consensus. Moreover, as we found out at a meeting we convened in July there is a significant group of conservationists in Cache Valley who believe we are not even seventy-five percent of the way toward compromise. This information was conveyed to UDOT in a timely manner. To summarize, I believe that a generally acceptable compromise is possible, but it can only be reached by continued hard work seeking to narrow the differences that still exist, not by premature and unilateral statements that consensus has been reached. RESPONSE TO BRIDGERLAND AUDUBON LETTER (APPENDIX B PAGE 16) The Bridgerland Audubon Society (BAS) provided extensive comments on the FEIS. I was the author of that letter, although I no longer hold an official position with BAS. Unfortunately, I believe most of the concerns that were raised in the BAS letter were dismissed with conclusory statements using circular 6 ., reasoning. While UDOT may feel it has adequately addressed this letter, I hope the FHWA and EPA will make an independent assessment of these concerns and how well UDOT has responded to them. What follows are items related to the BAS letter that I feel are particularly significant. It is not nearly an exhaustive list. 1. Since AASHTO allows for design exceptions, they are not genuinely standards. Thus, the "written-in-stone" portrayal UDOT has given to the public over the years is incorrect. Moreover, UDOT still fails to state what legal authority AASHTO has, perhaps because it has no legal authority (Appendix B, page 17). 2. On Appendix B page 25 it is stated that treatment of clear zones has been more clearly defined in the ROD. Even if true, this is yet another case of not presenting the public with correct (or clear) information until the public is largely no longer part of the process. That is, its yet another reason to prepare an SEIS. Moreover, BAS Table 3 was correct, what was wrong was that UDOT had failed to explain what "typical improved area" means in its FEIS, thus defeating informed public participation. 3. On Appendix B page 27, UDOT indicates that recreation isn't emphasized in Logan Canyon, and that it isn't a recreation area. That analysis ignores the Forest Service signs welcoming visitors to the "Logan Canyon Recreation Area," it ignores the Forest Service's attempts to get highway enhancement funds to show off Logan Canyon's many recreational attractions, it ignores 7 . \; the brown (i.e., recreational) FHWA or UDOT signs pointing the way to Logan Canyon, it ignores the clear direction in the Forest plan that Logan Canyon will be managed primarily for recreation. Under UDOT's constrained analysis, the Sawtooth National Recreation Area (also managed by the Forest Service) would not be a recreation area because its not absolutely only used for recreation (grazing is allowed in some areas). I prefer the more pragmatic duck test: if it walks like a duck, quacks like a duck, etc., it is a duck. Under that test Logan Canyon is a recreation area. And neither UDOT or the Forest Service can reinterpret the law in an inappropriately constrained way--and the law makes it clear that when the managing agency designates an area a recreation area in its plans, that area must be treated as a 4(f) area. 4. On Appendix B page 28 UDOT frets about having to concern itself with "hundreds" of species. Only 27 species were asked about, and now with the public largely removed from this process something has finally been said about them (see Appendix A, USFS Biological Assessment). Moreover, not only does the Forest Service have to do a biological assessment before a decision document is signed, it must do the assessment before the decision is made which certainly has not been the case here. 5. UDOT says on Appendix B page 29 only a Forest Plan Amendment will be required, not a revision. However, conservationists have long contended a much more significant revision will be required. Revisions are required when the basic 8 output of goods and services from a forest are altered. I believe the modified preferred alternative will meet that test by transforming Logan Canyon into yet another Wasatch-Cache National Forest high-speed conduit, rather than the singular peaceful and quiet ride in a major canyon that it currently is. In fact, Logan Canyon's beauty is not only of forest-wide singularity, it is of national significance, as a soon-to-be-released national article will demonstrate. 6. Some pages are duplicated incorrectly beginning on about Appendix B page 29 to 31. 7. While the Forest Service has evaluated the Logan River for Wild and Scenic status (Appendix B pages 29 to 31), it has also said that new information could cause a reevaluation. Such information was recently provided by Mr. Drew Parkin who is one of the nation's premier experts on wild and scenic rivers. He concluded most of the Logan River within the highway project area qualifies as a recreational river. His report has been submitted to the Forest Service. UDOT should more fully consider the ramifications of such a designation, and not just state that there will be no effect due to the project. 8. Appendix B page 32 indicates it would be speculative to worry about land use changes if the land exchange occurs. The land exchange will occur because authorizing legislation has been passed by Congress and signed by the President. And to compare Forest Service land use policy with Utah State Lands Board policy is like comparing night and day (I'll leave it to you to decide 9 ,. which is the benighted agency). There will be changes in land management and it is disingenuous to ignore that fact. In particular, the need for "laydown" fencing should be reconsidered because it is unlikely there will be cows to keep off the highway. 9. On Appendix B page 33 UDOT responds improperly to the 4(f) issues that are raised. As indicated above, all of Logan Canyon is a recreation area, its not a few parking sites. Moreover, the reason for selecting the 4(f) sites was not to protect parking, but rather to protect aesthetics, hiking, and exploration. These are the protected features or activities (see Appendix B page 34). Furthermore, not only is the conservationists' alternative feasible and prudent, it also does not produce any genuinely unusual situations precluding its selection. And when a feasible and prudent alternative fails to meet transportation needs, the needs must be reassessed, which UDOT has not done. Failure to meet transportation needs does not mean an alternative automatically causes an unusual situation precluding its selection. 10. The concerns raised on Appendix B page 35 are indeed specific to the Logan Canyon Highway project since these species occur nowhere else, and failure to address the question runs contrary to Eugene Kleckley's (FHWA) written assurance that all of our concerns would be addressed. 11. Over the years UDOT has repeatedly refused to consider 10 ,. slow vehicle turnouts as an alternative to passing lanes. However, these are a practicable alternative to the passing lanes contemplated between mileposts 391.6 to about milepost 396.5 that would avoid wetlands impacts (see Appendix B page 36 and ROD pages 32 to 34). As we have often pointed out to UDOT, slow vehicle turnouts are successfully used in several states. And UDOT has told us that they have the statutory authority to use slow vehicle turnouts. Therefore, they must be used in preference to passing lanes where wetlands impacts will occur. Additionally, while UDOT partially responded to BAS's concerns on Appendix B page 36 by reducing the road width to 34- feet between mileposts 391.6 and 399.8, this response was incomplete. UDOT fails to point out why it does not plan to leave roadway width at 26-feet in section 1b of the canyon (mileposts 387.5 to 391.6). If 26-feet is a practicable alternative in section 1a (mileposts 383.5 to 387.5), why is that not practicable in section 1b, where the canyon is virtually as narrow and wetlands/riparian impacts likely as great? Furthermore, UDOT dismisses BAS's concerns about wetlands mitigation in sections 1a and 1b by saying "the commentor . . . felt" (ROD page 33)there was a poor likelihood of revegetation success. However, it was not a matter that I "felt" there was a poor likelihood of success. Rather, I cited recent scientific literature--produced by scientists working for the very agency whose land will be impacted (the Forest Service)--stating there is a poor likelihood revegetation will be successful in areas 11 such as sections 1a and 1b (see Appendix B page 37). If the scientific literature that I cited is somehow flawed UDOT should cite "better" information. That's how science works. And NEPA demands the use of good science. Until then, it appears UDOT has no scientific basis for claiming it can reclaim the kinds of wetlands that exist in sections 1a and lb. Finally, UDOT still feels simply stating best management practices will be used is sufficient to meet water quality mandates (Appendix B page 37, see also ROD page 32). The law is otherwise. Moreover, UDOT has failed to adequately coordinate with the Utah Division of Water Rights (see Appendix B page 6) which feels UDOT has likely understated the water quality impacts of the project. Thus, UDOT is too vague about how it will mitigate water quality impacts and has likely underestimated those impacts, yet UDOT wants approval to proceed with this project. That is not how NEPA intends environmental review to proceed. 12. An inability to do a "before and after" (ie, cumulative) comparison of wetlands and aesthetic impacts in the already-widened section of Logan Canyon with the project area would be unfortunate (Appendix B page 38). However, I believe that if future aesthetic conditions of the road can be predicted in the project area, past conditions in the already-widened section can also be estimated. For example, there are certainly many old photos of the canyon that could be used for aesthetic comparisons, and many of the old wetlands have left "footprints" 12 of their existence. While not an ideal scientific situation, to simply state that no useful cumulative comparisons can be made between the project area and the lower canyon overstates the situation. UDOT says the Forest Service feels the presentation of visual quality data was more meaningful when presented in a way unlike that in the rest of the FEIS (Appendix B page 38). Why did UDOT let the Forest Service dictate this approach when BAS-and several others--made it clear in their comments on the DEIS that this was not a more illuminating approach? MAJOR FLAWS APPARENT IN THE ROD What follows are additional major flaws that I perceive in the ROD. Again, this is not an exhaustive list. 1. On page 40 of the ROD UDOT mistakenly thinks only an irreversible commitment of resources can invoke NEPA relative to 4(f) designation. Actually the test is whether designating a 4(f) site is a Federal action significantly affecting the human environment. The selection--or more importantly, lack of selection--of 4(f) sites in Logan Canyon meets that test and certainly warranted at least a FONSI or an EA. 2. On page 18 of the ROD UDOT says the Forest Service will issue a transportation easement not the special use permit described in the FEIS. What is the significance of that change? If one of these involves the Forest Service conveying a property right while the other is merely a license, this is a significant 13 ." change, and the public has not had a chance to comment or be involved in this decision. 3. As I have discussed in several of our meetings, the exact location and size of staging areas must be spelled out. This is a major project impact that has not been previously addressed. 4. I have already mentioned the tendency towards unwarranted conclusory statements in regards to how the BAS letter was addressed. That same problem is particularly evident in the defensive discussion on purpose and need on pages 27 to 29 of the ROD. As I said above, the safety data were wrong in the FEIS, are still wrong, and question begging rhetoric does not alleviate that problem. Likewise, the discussions related to traffic volume predictions, the associated level of service, the utility of SR 14 as a comparison to u.S. Highway 89, and AASHTO standards are mostly just defensive and conclusory. 5. On Appendix A page 7 there is a critical UDOT memorandum. First, under the logic developed in this memorandum, there is little or no safety rationale for the 40-feet wide road UDOT still proposes in much of the canyon. All of the remaining proposed 40-feet wide highway could just as well be 34-feet wide. UDOT should strongly consider this fact as a means of reaching a generally acceptable compromise in the canyon. However there is also a very disturbing remark made in this memo. It is stated: n[A]nd given the fact that we would be able to proceed with the construction of the project . . . n if the 14 f road width is reduced to 34-feet, going to five foot shoulders is acceptable. Did UDOT decide to go to a 34-feet width instead of a 40-feet between mileposts 391.6 to 399.8 because of its goodfaith discussions with conservationists or because EPA and/or the Corps of Engineers told UDOT they would not get a 404 permit if they did not make this change? The sentence quoted above certainly implies that someone was holding a very big stick over UDOT's head, and frankly I doubt that it was conservationists. 6. The letters from the EPA and the Utah Division of Water Rights on Appendix B pages 1 to 6 are a must read. In essence, not only has UDOT failed to insure an approved wetlands permit is acquired before the project is authorized, it has also put off significant input on water quality impacts until the as yet nonexistent design phase. We mentioned earlier how UDOT has marginalized the public's ability to participate in this process by its out of sync NEPA process. It appears UDOT is doing the same with expert agencies that should have input to this project prior to its approval, not after. A SUGGESTION FOR COMPROMISE Many of my comments in this letter have been critical of UDOT's approach to the Logan Canyon project. That's because I feel the ROD is as flawed a decision document as were the DEIS and FEIS. However, in the spirit of compromise let me offer a suggested approach. When the final ROD is issued it should only approve 15 construction of the bridges, namely Burnt Bridge, and Upper and Lower Twin Bridges. These are the "scary" bridges in many people's opinion, and as I understand it the ones that are in need of replacement due to their age. UDOT apparently has funding to reconstruct these bridges and UDOT has indicated that replacing these bridges would take about two years. During that two year period an SEIS could be prepared for the remainder of the project, wherein the public and concerned agencies are given a full opportunity to participate before a decision is made and when it can still have a major effect. Many of the major flaws that I have pointed out in this letter and my letters submitted on behalf of BAS regarding the FEIS and DEIS could be corrected in this process. The numerous other flaws pointed out by other commentors could also be addressed. The EPA's deep concern regarding segmenting a project (see Appendix B pages 1 to 4) might be addressed. Additionally, the constructive and positive discussions UDOT has had with conservationists could continue in a effort to narrow remaining differences. In any event, UDOT does not have funding for nonbridge portions of the project yet, so taking a couple of more years to "get it right" should not be a major problem for UDOT fiscally. You will note that I did not include the Red Banks, Franklin Basin, or Amazon Hollow structures/bridges in this proposal. There is simply too much controversy associated with them (due to their extreme width and wetlands impacts) to expect that they would meet with general acceptance, unlike the three bridges 16 " mentioned above. Moreover, as far as I know, the only "problem" with these bridges is that they are not as wide as UDOT would like. However, they do not seem to be as narrow as the bridges mentioned above (they certainly are not "scary"), and they are not nearing the end of their useful life so far as I know. Thank you for this opportunity to provide these comments on the ROD, and I hope that UDOT and the FHWA will consider this compromise proposal so that a generally acceptable compromise might be reached for the Logan Canyon project. Sincerely, ~8~~ Bruce Pendery 755 Canyon Rd. Logan, Utah 84321 17 ... Mr. David Berg UDOT Environmental Division 4501 S 2700 W Salt Lake City UT 84119 Dear Mr. Berg, Shawn Swaner USU Box 1625 Logan, Utah 84322-0199 August 10, 1994 I appreciate the opportunity to participate in the preparation of the Logan Canyon Record of Decision and have several comments on the draft copy of that document. I have many concerns about waiting until the design phase to resolve controversial issues. As we discussed on the August 3 field review, the RoD is a legally binding document that must be adhered to in design. However, verbal and informally written commitments could be overlooked or omitted from final design for a variety of reasons. For the sake of reaching compromise, I would like to see the RoD become a more formal record of what is to be done and provide binding guidelines for the design phase. The following comments are areas that I feel need more comprehensive coverage to ensure concerns resolved prior to the submission of the RoD are not "lost" over time. Dugway During the August 3 field trip, there was discussion concerning the width of the cut at the Dugway . To widen the width of the cut from 4 feet to 12 feet would cause considerable additional aesthetic impacts in this area. It could result in design changes to the roadway width and number of lanes in this area. The width of cut and method for making the cut should be covered in the RoD. Cost considerations should be evaluated now, rather than during design. , Lower Twin Bridge The proposed sloping of the south cut at Lower Twin Bridge would most likely provide better revegetation and possibly less of and aesthetic impact. The removal of the existing bridge support structure should be more thoroughly covered. Impact reducing measures such as sawcutting versus jackhammering are very important considerations and should be written into the RoD. Also, guidelines should be established for the disposal of the old bridge. Temple Fork The amount of variables at Temple Fork cause for a great amount of concern. I am grateful for the elimination of the left turn lane. I also feel that realigning the intersection will provide greater safety. However, the close proximity of the river and adjoining riparian habitat make it a sensitive portion of the project. I am concerned about the adding of an uphill deceleration and turn lane. Although the additional width will be cut into the hillside, I urge that extreme care be taken to ensure minimal construction and post construction impacts on the river and riparian habitat. Concerns have been raised about the threat of siltation due to runoff during construction. There are also concerns to aesthetics of this area. Once again, clarification of how these issues are to be dealt with would be justified in the RoD. Beaver Creek The Beaver Creek corridor is similar to the lower middle canyon in narrowness and close proximity of riparian and wetland habitat. Language similar to that used to describe the Lower Middle Canyon should be used here. Specific areas of concern are the use of clear zones, total roadway width in areas to be contained by retaining waifs, and use and type of protective guardrail. Specific attention should be given to that habitat of this section as it has unique terrain that is not conducive to clear zones within proposed clear zone areas. • Amazon Hollow Bridge This is an area raised in early 1994 during a field review. At that time it was indicated that impacts to the wetlands adjacent to this bridge could most likely be avoided. Considering that the actual intersection will be moved farther east, away from the bridge, and that a shorter taper could be employed, this should be possible. It would seem that a consultation of maps should answer whether this is possible, or whether it would require a design exemption. If it requires a design exemption, then that must be included in the RoD, if it does not then it should be indicated that the wetlands will be avoided, as Federal agencies have directed. If UDaT does not feel that avoiding these wetlands is possible, then that should be made clear so that we can Inform our constituents. Curves 69, 70, 71 and adjacent forest. After numerous discussions on passing lanes, I agree that the addition of a passing lane to the 40 foot roadway section would result in only the addition roadway width of 7 feet. However, if this additional width causes a substantially higher road base width or a wider fill, then that should be the primary focus regarding impacts. Therefore, relating to these curves, the addition of seven feet of width could cause severe impacts to habitat and aesthetics by the inclusion of fills. Please evaluate whether retaining walls could be used to limit the amount of sliver fills down the steep slope of these curves. Also indicate the safety device to be used along this section of the road. A five foot shoulder would nearly double the amount of cut and fill necessary, has UDaT included the in it's impact evaluation? Curve 85 Forest Impacts Impacts to the forest habitat surrounding curve 85 are of prime concern to CPLC. Several alternatives have been proposed by both UDaT and CPLC. CPLC has a two fold concern in this area, and no proposed alternative adequately resolves these concerns. The first and primary concern relates to the elimination of trees in this area due to curve realignment and roadway widening. The aesthetics of travelling through this area are a unique experience in the canyon and as such are of concern. The widening of the road and the implementation of wider shoulders and safety features would eliminate the close proximity of these trees, resulting in the lose • of the aesthetic value. I realize that curve 85 has a high degree of curvature (23 degrees) and the problem of icing during winter months makes this curve a safety concern. The proposed alternatives all offer varying degrees of satisfaction for CPLC various impacts to safety and environment. I offer the following comments on the proposed alternatives for this section. Ending the passing lane above Sunrise Campground This would reduce the amount of aesthetic impacts to this area but would not accomplish much unless the curve was maintained on its present alignment. I realize that safety standards would preclude the use of this option. ReRouting of Road from Summit to approx. MP This is a dramatic change from previous plans and a such I have very little information on its impacts and also on how the body of CPLC regards it. I am initially in favor of this proposal, as I indicated on the August 3 field review, however, we must more thoroughly examine all aspects of this proposal before myself or CPLC can formally accept this proposal. Impacts to habitat should be evaluated, as well as the manner of and amount of cut and fiJI that would be necessary to accommodate the roadway. Also, work must be done to show how the realigned portion would reacquire the original road. I feel this is a matter of prime concern that must be dealt with in the RoD. If UDOT wishes to proceed with design changes outlined in the FEIS, then that should be make clear. This is not an issue that can be left until final design. Old Road on Garden City side of ProJect The draft RoD is suitable regarding removal and revegetation of abandoned road. However, can the RoD include a statement that no abandoned road will be left intact above the Garden City Limits? • Impacts from Mitigation CPLC has raised concerns about the impacts from mitigation. These concerns could be allayed if we could review a mitigation plan from a similar project. Also, what guidelines are followed, are they published and if so in what publication. Review of mitigation plans and procedures should show that those procedures are acceptable and not as impacting as we believe, if in fact they are not. Land Use What is the duration of the planned construction/pose-construction monitoring plan? Will they have the necessary budget and staff to revegetate or fix areas of mitigation and revegetation that fail? What will be the role and extent of communication with agencies other than the Forest Service? Should not more agencies be included in roles greater than that of the CAT team? What Best Management Guidelines will be used in Rich County, which has now guidelines of its own? Social Impacts While a majority of social impacts, notably those relating to Garden City residents are outside our primary area of concern, the impacts to recreation and access in the canyon are of interest. Despite categorizing sites in the canyon into 4(f) sites, the canyon as a whole must not be overlooked as a recreation area. Logan Canyon is a recreation area, regardless of its designation. There are many more sites beside the designated 4(f) sites that fit the same criteria. The close proximity of the canyon's 4(f) sites indicate that the whole canyon is a contiguous recreation site and as such should be treated as such. The recreation value of the canyon is not just a sum of available parking areas and turnouts. Social impacts are not only loss of these parking areas, but also the degradation of the canyon natural resources. \ • Water Quality Impacts Siltation of the rivers and streams both during and after construction of an area of high concern. What guidelines will be used to ensure long term avoidance of siltation due to road runoff. Plans have been made for the first four miles of the project, but not much has been said of the rest of the project. Is there an AASHTO guide for this? Wetlands and Botanical Resources As mentioned previously, impacts which can obviously be avoided should be listed in the RoD. As the actual design may take place several years into the future, and concerns discussed prior to the release of the RoD could be overlooked. My inclination (and not necessarily that of CPLC) is that concessions resulting in less impacts to wetlands and riparian habitat are of prime interest, and that my emphasis is on these concessions, rather than concerns in the upper canyon and on the Garden City side. Hence, wetlands in the Lower Upper Canyon, and the Beaver Creek corridor are of deep interest. Avoidance of impacts in these areas are much more important than many other concerns and should be given thorough coverage. Water Body Impacts and Wildlife Impacts What studies are used to justify that lay down fencing will not adversely impact wildlife migration? What measures will be taken to minimize the likely increase of animal vehicle collisions due to higher vehicle speed? Regarding clear span bridges, what guidelines will be followed to minimize construction impacts to the river from the close proximity of the spans, noting that those spans will not be in the river, but in very close proximity. Does the erosion control plans mentioned in the RoD also cover bridge construction? Is there enough information about fisheries in the canyon to adequately determine what mitigative measures will be undertaken? Why not do a study prior to construction to determine the current state of fisheries? • Construction Impacts Please include information regarding the potential air quality impacts of a bituminous processing plant. What permits would be required for this? Should these permits not be included in the RoD? Can a plant be built in the canyon if the impacts of such a plant where not covered in the FEIS or prior? Construction detours could represent an additional substantial impact. What will be done to minimize the use of detours, where will detours be prohibited, who has final decision over use and location of detours? Another impact that has been previously overlooked is staging areas. The construction of staging areas on sites previously mapped as untouched create a new impact that was undocumented in the environmental documentation. Comments on the FEIS Overall, I feel that UDOT's handling of public comments has been very poor and is a major contributor to current feelings of mistrust towards UDOT from CPLC members and the public. Better handling of comments could have greatly improved relations and led to better cooperation on this project. The dismissal of concerns and comments is certainly realistic, but dismissal without adequate explanation is unacceptable to the commentator. The replies to comments in the FEIS and the RoD indicate that UDOT has little regard for the publics input and if it was evaluated at all, no mention of how those suggestions where incorporated or dismissed was given. Regarding the statement in the last sentence of page 29 of the draft RoD, consensus has not yet been met. Representatives from FHWA, Garden City, CPLC and within UDOT have expressed concerns that would indicate that consensus has not been reached. It is damaging to the consensus building process to declare that consensus has been reached when in fact it has not. Traffic and Safety Data In the August 1 meeting, UDOT stated that accident and traffic data was "garbage." It would seem that if improving safety and level of service were the intent of the project, then accurate data would be required to justify that purpose and need. Since the traffic and safety data is inaccurate, it would seem that purpose and need should be altered to include only level of service and substandard design. Conclusion I appreciate the opportunity to participate in the development of the Record of Decision. As a representative of CPLC, I look forward to continued communication on the many issues surrounding the Logan Canyon project. Sincerely, GP,'-/ s:'.....,g....uz Shawn Swaner
Click tabs to swap between content that is broken into logical sections.
Rating | |
Title | Various papers commenting on the Logan Canyon construction project, 1994 |
Description | Various papers commenting on the Logan Canyon construction project, 1994. Included: Citizens for a Safe and Scenic Logan Canyon summary of UDOT plan of action and Conservationist plan of action, time filing lawsuit under NEPA, and comments on Logan Canyon project from Bruce Pendery. |
Creator |
Pendery, Bruce Flint, Stephan D. |
Contributors |
Berg, David |
Subject |
Traffic engineering Roadside improvement--Utah--Logan Canyon Logan Canyon (Utah) |
Subject Keywords |
Citizens for a Safe and Scenic Canyon |
Genre |
Administrative records Correspondence |
Original Date | 1994; |
Search Date | 1994 |
Geographic Locations |
Logan, Cache County, Utah, United States, http://sws.geonames.org/5777544/ Logan Canyon, Cache County, Utah, United States, http://sws.geonames.org/5777546/ |
Time Periods |
1990-1999 20th century |
Language | eng |
Source | Utah State University, Merrill-Cazier Library, Special Collections and Archives, MSS 314, Citizens for the Protection of Logan Canyon/Logan Canyon Coalition Papers, 1963-1999 |
Physical Collection | Citizens for the Protection of Logan Canyon/Logan Canyon Coalition Papers, 1963-1999 |
SCA Call Number | MSS 314 Box 1 Folder 5 |
Finding Aid | http://archiveswest.orbiscascade.org/ark:/80444/xv63458 |
Rights | Reproduction for publication, exhibition, web display or commercial use is only permissible with the consent of the USU Special Collections and Archives, phone (435) 797-2663. |
Purchasing Information | To order photocopies, scans, or prints of this item for fair use purposes, please see Utah State University's Reproduction Order Form at: https://library.usu.edu/specol/using/copies.php |
Digital History Collection | Highway 89 Digital Collections |
Type | Text |
Format | application/pdf |
File Size | 18774812 Bytes |
Checksum | 3391297476 |
Identifier | MSS314Bx1Fd5.pdf |
What do you know about this item? | Click this link to tell us more about this item : http://library.usu.edu/main/forms/diginfo.php?id=1753&collection=highway89 |
Transcript | WE NEED YOUR HELP We anticipate needing increased community support. Please let us add your name to our mailing list: Name: Address: Phone: Please accept the enclosed donation: . $5 $10 $20 $ I can help with ----- Please return this form and any donation to: CSSC, Box 3501, Logan • CITIZENS FOR A SAFE AND SCENIC CANYON WE SUPPORT MAKING LOGAN CANYON SAFE • WIDENED BRIDGES • MORE PULLOUTS • CLIMBINGrruRNING LANES • PARKING AREAS • MORE SIGNS • BEITER MAINTENANCE WE SUPPORT KEEPING LOGAN CANYON BEAUTIFUL • RESPONSIBLE IMPROVEMENTS IN LOGAN CANYON • PRESERVING ONE OF THE LAST, BEST PLACES IN UTAH Citizens for a Safe and Scenic Canyon/CPLC P.O. Box 3501, LOGAN, UT 84321 Citizens for a . Safe and Scenic Canyon OUR EARTHLY TRUST: LOGAN CANYON MAKE IT SAFE KEEP IT BEAUTIFUL · . . 11CI-TI-ZENS FOR A SAFE AND SCENIC CANYON WHAT IS CSSC? Citizens for a Safe and Scenic Canyon (fonnerly Citizens for the Protection of Logan Canyon) is an organization that is dedicated to providing a safe highway through Logan Canyon while still preserving its scenic beauty. We support making the canyon safe by replacing and widening bridges; constructing more pullouts for slow drivers; adding several climbing lanes, turning lanes, and parking areas; and putting in more and better signage in the canyon . . WHAT IS THE HISTORY? For the last thirty years there has been a drive to punch a wider, straighter, faster highway through Logan Canyon. In 1961, five miles of the lower canyon were "improved"; in 1968, six more--up to the Right Hand Fork. Under new federal regulations, UDOT was required to research the environmental impacts of their construction plans. After a sevenyear study, they have come up with their "preferred alternative." Unfortunately, their study, in the view of many, has been marked by slipshod procedures, insufficient and incorrect data, and lack of consideration for the environment. Citizens for the Protection · of Logan Canyon conducted their own study and prepared the Conservationists' Alternative, a road construction plan that proposes a safe canyon without destroying its scenic beauty. COMMON QUESTIONS • Does CSSC advocate a total hands-otT approach to Logan Canyon? NO! We favor a gradual, go-slow approach to working on the highway, beginning with the replacement of dangerous, deteriorating bridges. • Is the Utah Department of Transportation (UDOT) "preferred" alternative safer? NO! There is a real possibility that a wider road with faster speeds will in fact increase both the number and severity of accidents in the canyon. • Will the savings in travel time significantly benefit the neighboring communities? NO! By their own figures, the "preferred alternative" will only reduce travel time from 48 to 43 minutes. It would take a lifetime of these 5- minute savings to equal the 15-20 years of delays and disruptions caused by this massive project. • Will an improved highway promote economic development in Cache Valley? NO! The disruption to the canyon will hurt tourism, Cache Valley'S major economic asset. WHAT DO THEY WANT? Utah Department of Transportation wants to obtain federal funds for a massive highway project to tum the Logan Canyon road into a commercial highway, at a cost to the public of over $35 million dollars (CSSC's alternative would cost $15 million)! UDOT predicts that the project will take at least 10 years to complete, with the real possibility that it will take as long as 15 to 20 years. We only have to look at the destruction, delays, and devastation to Sardine (Wellsville) Canyon to get an inkling of what this project would really be like in our backyard. In UDOT's plan, the road would be re-routed, on average, once every three-quarters of a mile throughout the length of the canyon. Huge cuts are planned to achieve a straighter alignment and substantially increased road width. This massive project will be devastating to the scenic beauty of Logan Canyon. Roadside plants and forests will be replaced by unsightly gashes on hillsides. In .the lower "improved" section of the canyon, barren slopes have not revegetated yet, though the cuts were made 20 to 30 years ago. Extra-wide shoulders (clear zones) of 22 feet will destroy the forest on each side of the road, cutting a wide swath through the cottonwood, riverbirch and box elder trees that line the river canyon. The river itselfwill be intruded on, lined by 2,000 feet of "riprap" (chunks of rock and cement). Logan River's wild and scenic qualities will be destroyed. • LOGAN c!ANYON: Summarizing Two "Alternatives" US-89 LOGAN CANYON Accompanying this map is a table comparing key goals of two alternatives regarding the "development" of Logan Canyon. These goals are listed by canyon section. o 2 • Alternative #1 UDOT Plan of Action I Go relatively light on the canyon between Right Hand Fork and Lower Twin Bridge (4 miles). The road would be left at its current width and alignment, but curb and gutter would be added and several curves will be flattened. Burnt Bridge would be widened to 34 feet, requiring river bank modification. The road near Cottonwood Creek culvert would be raised 2 feet to protect the road from occasional damage due to flooding. 2 Substantially widen the road from Lower Twin Bridge to just above Rick Springs (4 miles) from current 26 feet to 40-46 feet. Six curves would be cut and major parking areas would be built at Temple Fork and Rick Springs. Upper and Lower Twin Bridges would be moved upstream from their present position and widened to 38 feet. 3 Drastically widen the road from above Rick Springs to the Rich County line (13 miles). TAe road would be widened from 26 to 47 feet for half the distance (6.5 miles) to allow for passing lanes, with the remainder widened to 40 feet. Nearly ten feet will be cut into the vertical rock face located after the Beaver Creek area (milepost 399.1). There would be five curve cuts and major construction at the Franklin Basin, Tony Grove, Red Banks campground and Beaver Mountain turnoffs. 4 Essentially build a new road from the Rich County line to Garden City (7 miles). There would be a continuous passing lane from near Garden City to the Cache County line (47 foot width), 19 curve cuts, and substantial additional construction. • Alternative #2 ConseNationist Plan of Action • I Essentially leave the canyon between Right Hand Fork and Lower Twin Bridge (4 miles) as it is presently. Improve signs signaling advisory speeds and curve warnings. The road would be left at its current width and alignment. Burnt Bridge would be widened to 28 feet. The road near Cottonwood Creek culvert would be widened to 28 feet and raised 1.5 feet to protect the road from occasional damage due to flooding. 2 Move Upper and Lower Twin Bridges towards river to lessen curve and widen to 28 feet, locating a slow vehicle turnout where the present road cut goes through. Improved signs signaling curves and intersection at Temple Fork. Widen road at Ricks Springs to 28 feet, maintaining existing parking. Add signs warning of pedestrian crossings. 3 Add three climbing lanes and provide a 90 degree intersection and deceleration lane to Beaver Mountain Road. Improve intersection at Tony Grove. Replace the Tony Grove Creek Bridge, Red Banks Bridge, Beaver Creek Bridge, Beaver Creek Structure, and Amazon Hollow Structure without curve cuts and widen to 28 feet. Provide signs and approaches at the Bear Lake Overlook. 4 Improve signs on advisory speeds and curve warnings. Provide active maintainance for the road. The road would be left at its current width and alignment. Information cited: US Highway 89 Final Environmental Impact Statement. • • • June 28, 1994 To: Dave Berg From: Bruce Pendery Re: Follow-up to last week's meeting Enclosed are the "hot spots" we would appreciate receiving narratives on. I forgot to get a copy of the letter we sent out to some of our selected supporters, but will get that to you ASAP. I know time may be a problem, but if its possible to get the narratives to me by July 11 it would be helpful (address: 755 Canyon Rd., Logan, 84321). We will be having what should be our last outreach program that evening, and the narrative would be useful. We will be talking (probably via letter)to additional people (ie, the vast majority of our supporters) after July II, but that will be more to explain what we've been doing rather than to get input on what we're doing. I will call late this week or next to discuss a couple of things with you. I would like to find where we stand with getting a copy of the ROD. That's critical to us. I would also like to discuss how the Forest Service feels about just amending relative to the bridges, as well as a few other things . HOT SPOTS Curve #5 MP 384 and Curve # 29 MP 387. How will the accident studies be handled and what efforts will be made to reduce the aesthetic impacts of these cuts while also avoiding the river? Lower Twin Bridge, The Dugway, Upper Twin Bridge. What efforts will be made to minimize the size of cuts and associated aesthetic impacts? What efforts will be made to minimize any alignment shift to Upper Twin Bridge? How will the cuts along the Dugway be handled to minimize aesthetic impacts and the size of the cut? Temple Fork. Describe how the decision process will work relative to whether a "short" up-canyon turning lane is possible. How will impacts to the river and aesthetics be minimized, considering also the need to "straighten" the angle at which the Forest Road intersects the highway. Passing Lanes in the lower Upper Canyon of Section Two (see your letter of 3/4\94, item 3). Elaborate as much as you can on how, when, where, if, etc. the decision to put in these passing lanes will be made. • Beaver Creek, Franklin Basin Bridge, Amazon Hollow Bridge. • Elaborate as much as you can on what efforts will be made to minimize riparian impacts. Especially describe any anticipated retaining walls or intrusions on the rivers. Tonv Grove, Beaver Mountain, and Franklin Basin Intersections. Elaborate as much as you can on what efforts will be made to minimize the magnitude and/or impacts of these activities. Passinq Lane Above Beaver Mountain turnoff, especially as it relates to the old-growth forest and curves 69, 70, and 71. To what degree can impacts on the forest be minimized; has an alignment shift been approved? How will aesthetic impacts of this climbing lane be minimized, especially to what degree will the climbing lane involve cutting into the hill as opposed to filling? Curve 85 Old Growth Forest near Limber Pine. What options exist to minimize impacts to this area, and particularly can the passing lane be ended a little sooner--say near the Sunrise Campground? Be as specific as possible. As I mentioned, this is a critical site to many people and we will need to discuss it fully at our next meeting. How will the old road from the Limber Pine Summit to Garden City be Handled? That is, people want to know if old sections of road • in areas where a new alignment is created will simply be . abandoned, or will the pavement be torn up and the soil revegetated? • • • Portion of Section 1b Above Ricks Springs. Describe as fully as possible how impacts to riparian habitats will be avoided in this area. Mitioation. Discuss each of the following a fully as possible: -What is laydown fencing contemplated in the Tony Grove area and is it really needed, especially since the Forest Service will soon own the land and possibly reduces livestock numbers -Many people are concerned that mitigation is simply another big construction project with nearly as many impacts as the construction project prompting the mitigation. How do you respond to this, and what can be done to alleviate this concern? -How will rip-rap at bridges be minimized or better yet avoided altogether. -To what degree will contractors and especially equipment operators be given training to ensure they minimize the impacts their machines can have. -Could UDOT include the following publication as the basis for its construction: "National Cooperative Research Report 221. Transportation Research Board. Erosion Control During Highway Construction. Manual on Principles and Practices" 1980. AASHTO and FHWA sponsored. Or is there a more up-to-date publication UDOT would specifically use as a guide? -To what extent will not only native vegetation be used, but an attempt be made to mimic existing plant communities. -To what degree will followup be made to ensure mitigation actually works, and to what degree will UDOT "do what it takes" to make mitigation work? Especially consider vegetation. -How will excess rubble be handled. -How will staging areas be handled . • • • Mr. Dave Berg UDOT Salt Lake City UT Dear Mr Berg, August 9 , 1994 These comments are by no means encyclopedic; a brief review of only scattered sections of these documents revealed so many problems that I have not even been able to do a through reading of it. While there is much progress that has been made since last December, there is still much to be disappointed about in these documents. The purpose and need section of the ROD (Appendix A) is again one of the most flawed" sections of this document. This appendix presents the first description on how traffic flows for accident rates were calculated (this information was never presented in the Technical memorandums); thus this is the first opportunity for comment (and literally no more than 5 members of the public have had access to this new information). As we discussed in our August 1 meeting, there are fundamental problems with the data and the methodology which call into question whether any accident rate data should be presented in the EIS or ROD. 1. Traffic flows in the "improved" section (mp 374.64-378) are artificially inflated by the inclusion of the 14,000 AADT adjacent to Utah State University (outside • • • Flint comments of the canyon and outside of the lIimproved ll section mentioned above). This high AADT is used in the weighted average for this section, thus the accident rate is artificially redu ced . The true accident rate for this lIimproved" section is likely 3 or 4 times higher than what your document shows. 2. The mp 378 - 383.3 section had the counter in it orig i na lly and traffic flow presented in the FEIS is adjusted to this location even though the counter is currently located in Rich county. This is stated on page 3 of the Appendix A, and you agreed that it was correct. Thus the traffic flow to be used in calculating accident rates in this section is near 1800 rathe r than over 3000. Simply saying that the AADT is 3000 in the Utah Road Files (Appendix A p. 3) does not make it correct. Again, the true accident rate in this improved section is much higher than that shown in AppendixA. 3. The ta ble on page 5 of Appendix A has a similar problem: The true traffic flow is much lower than shown in the table, thus the fatality rate for the Lower Canyon is much higher than shown and may be the highest in the Canyon. 2 Flint comments 4. As we dis c ussed in our August 1 meet i ng, there are fortunatel y so few fatalities tha t their distri bution may be s omewhat random. A better perspective on acciden t severity may be gained by examining the injury accident rate. 5. An attempt is made on p. 2 of the Appendix to justify using lower traffic flows in recent years to calculate accident rates even though it is claimed elsewhere that traffic is increasing. Rather than dispute this point by point, let us look at your flow data. In recent years you have traffic increasing in the Lower Canyon and decreasing in much of the rest of the canyon. Thus what you are saying here is that the fundamental characte~ of vehicle use of this roadway has changed; most of the traffic only drives up into the Lower Canyon and then turns around and goes back out. How do you explain this? Isn't it readily apparent that this oddity is caused by your inflation of the traffic flows for the Lower Canyon? 3 To justify conclusions, as in #1 above, we are told that "standard methods" are used, that they are "accurate" and based on "professional methods" (all on p. 3), yet saying this does not make an incorrect analysis right . this type of pontificating should be stricken from the ROD; the methods of analysis should • • • • • • Flint comments 4 be able to stand up on their own. Appendi x p. 2: Here a claim is made that a signing project was done in '86. A review of the public comments (Lanner letter page 9-74 of FEI S) suggests tha t the signing was completed in '83 rather than ' 86. From personal recollection (since '86 was the year the EIS started), all I remember happening in '86 was that a contractor was hired to replace delineators. They were placed blindly according to some "standard", consequently most de-facto turnouts were blocked until some unfortunate drivers ran over the things. Cou ld you provide more details on the signing project? Specifically, check the year and describe the project . We have never received an explanation why the expected accident rate is higher for the "improved" sections (Table 1-2). If "improvement" raises the expectation of accidents, then we don't want t o do it. I am disappointed that there is still confusion on 4(f) site #7. Perhaps this confusion would not have occurred if the public was allowed some input into the 4(f) site selection process. Appendix A h a s site 7 at 391.6, the ROD (p. 5) says the passing lane starts a t 391.6. A passing lane should not start at a heavily used recreational turnout such as this; one can foresee safety problems as different up-canyon vehicles simultaneously try to pass and make left turns. Flint comments The biological assessment in Appendix A lists Draba maguirei as "known onl y f rom Box Elder a nd Heber c ounties" yet Shaw (1989, Vascu la r Plants o f Northern Utah) also l i s ts it in Cache County. Can you acc ou nt for this d isc repancy? Also, why is there no mention o f t he newly described spec i es of Viola that we mentioned in earlier correspondence? It a ppear s endemic to Logan Canyon. In the ROD itself (p. 4) states that the Upper Middle Canyon will serve a s a transition reg ion to the 40' pavement width of the Upper Canyon. Note that, with the reduction of the pavement in the Tony Grove flats and Beaver Creek areas to 34', this logic is no longer valid. The ROD (p. 7) states tha t the Conservationists' Alternative would provide 28' wide bridges. As I explained last year at the transportation commission me et i ng, we initially selected 28' because your e ngineers selected i t for the spot improvement alternative. I spent a consider able amount of time at that commission meeting explaining that we had no problem with wider bridges. Did I take a day off work to drive to Salt Lake city for this meeting and accomplish nothing? Were all the commissioners and your staff asleep? The ROD on page 7 also neglects to mention that we proposed (from the very beginning) that the Beaver Mountain intersection be improved, along with a right turn lane at Right Fork. Thus the • • • Flint comments Conservation ists' Alternative propo s e s 3 intersection improvements yet you only credit us with one. You talk of "unresolv ed s a fety concerns a t Red Ba nks Campground yet we h ave never seen any documentation o f this. In short, you are trying to make our al ternative appea r to be virtually "no action". We expressed th ese concerns before (se page 60 of Appendix B) and you put more effort into deny ing our concerns than in correcting the problem. Appendi x B continues the ongoing i gnoring of concerns which has plagued this EIS since its inception. As an example, on p57, 6 I spelled out i n great detail how rea listic alternative routes ~ should be considered (the world does not focus on Garden City as its ultimate destination, as you imply). For this effort, I am • greeted with non-response #4. So was John Carter on p. 79. Or look again at my letter at response #3. I asked why the response PI02 was not reflected in the text of the EIS. This is a valid question and i t was ignored. You did the damage - decision makers that read the text of the FEIS will not get the information that was in PI02. How do you make up for this? Or look at John Sigler's letter. Whoever wrote response #6 doesn't seem to have a clue how citations are used in technical documents. Or look at how the deta iled comments of Kate Boyes were ignored with an 8 word non-response . In summary, the problems which we have pointed out before Flint comments still persist . Rather than point out each one in great detail, let me suggest you go back to the comments submitted throughout the past 8 years and provide an analysis from an objective rather than a defensive posture. That would go a long way toward building the trust that is needed for this project to succeed. Sincerely, Steve Flint • • • • 0 -1 : ~ -I FTl FF'Clll M E M 0 RAN DUM TO: Bruce pendery FROM: Appel & Mattsson DATE: August 16, 1994 RE: Time for Filing Lawsuit under NEPA Introduction You asked that we determine whether there ~s a statute of limitations for f:'ling a NEPA claim1 to assist your group in determining when and if to bring a lawsuit. The short: ar.swer to your question is that NEPA does not contain a statute c: limitations (or time limit) by which suit must be brought. Jones v. Gordon, 621 F. S upp. '"7, 10 (D. Alaska 1985) . See also, Sierra club v. Penfold, 857 2.20 1307, 1315 (9th Cir.1988) ("Neithe~ NEPA nor the APA [Administrative Procedure Act] contain a specif~c statute of limitat~on.~ ); Citizens for Environmental Oua~ity v. U.S., 731 F . Supp . 970, 992 (D.Colo. 1989) ("NEPA and the NFY'A [National Forest Management Act] do not set forth a stat.ute of limitations. II ) However, II ~o~~rts have relied upon the doct.rine of laches to bar stale (NEPA] s·,:i ts . II Jones, supra, at p. 10. See also, Park Count y Resource Council, Inc. v. U. S . Department of Agriculture, 817 F . 2d 609,617 ; lOth Cir . 1987) (lltimelir.ess challenges to NEPA actions have rout~nely involved analysis under the doctrine of If claims are brought under other st:atutes or laws, the statutes of limitat:ion may be different.. • • 0 -1 : 2 -1 F'f"1 FF'()fl 11_1 M E M 0 RAN DUM TO: Bruce pendery FROM: Appel & Mattsson DATE: August 16, 1994 RE: Time for Filing Lawsuit under NEPA Introduction You asked that we determine whether there ~s a statute of limitations for f:'ling a NEPA claim1 to assist your group in determining when and if to bring a lawsuit. The shor'c ar.swer to your question is that NEPA does not contain a statute c= limitations (or time limit ) by which suit must be brought. Jones v. Gordon, 621 F . S u pp. '7, 10 (D. Alaska 1985) . See also, Sierra Club v. Penfold, 857 P.20 1307, 1315 (9th Cir .1988) ("Neithe~ NEPA nor the APA [Administrative Procedure Act] contain a specif:'c statute of limitat:on."); Citizens for Environmental Oua~ity v. U.S., 731 F.Supp . 970, 992 (D.Colo. 1989) ("NEPA and the NF:VA [National Forest Management Act] do not set forth a statute of limitations.") However, "co~~rts have relied upon the doct.rine of laches to bar stale (NEPA] s ',:i ts. " Jones, supra, at p. 10. See also, Park County Resource Council, Inc . v. U. S . Department of Agriculture, 817 F . 2d 609,617 ilOth Cir. 1987) (lltimelir.es6 challenges to NEPA actions have rout:"nely involved analysis under the doctrine of If claims are brought under other st.atutes or laws , the statutes of l i mitation may be different. laches . " ) Laches is defined as neglect t o assert a right or claim which, taken together with the lapse o f time and other ~ circumstances causes prejudice to the adverse party. Dictionarv. Black's Law Laches According to courts that have addressed the issue, an environmental act i.on may be barred by the equi table de fense of laches if "(1) there has been unreasonable delay in bringing suit, and (2) the party asserting the defense has been prejudiced by the delay. " 970, 992 687 F.2d Colorado Citizens for Environmental Quality v . U.S., 731 F.Supp. (D.Colo . 1989) (citing Jicarilla Apache Tribe v. Andrus, 1324, 1338 (lOth Cir. 1982). In Citizens, supra, the District Court held that there had been neither unreasonable delay nor sufficient prejudice for the doctrine of laches to apply. The court determined that the case had been brought within a "reasonable time after application of regulations at issue in [the] case" and there was no prejudice to the government. rd. ac 993. See also, Park County Resource Council, Inc. v. U. S. DeDartment of Agriculture, 817 F.2d 609, 617 (10th Cir. 1987). Courts have concluded that "(l ) aches must be invoked sparingly in environm~ntal cases because ordinarily the plaintiff will not be ~he only victim of alleged environmental damage . A less grudging application of the doctrine might defeat Congress's environmental pol icy . " Park Cou::ty Resource Council, Inc. v. U. S. Department of Agriculture, 817 F.2d 609, 617 (10th Cir . 1987) (citing 2 • • • • Preservation Coalition, Inc. v. Pierce, 66 7 F.2d 851, 854 (9th Cir. 1982). However, there are instances when courts h ave precluded NEPA c laims under the doctrine o f laches . In Jicarilla Apac~e Tribe v. Andrus, 687 F.2d 132 4 , 1338 (lOth Cir. 1982 ) , the Tenth Circuit Court of Appeals held that there had been an unreasonable delay by the Jicarilla Apache Tribe in aSSerting its NEPA claim. 1d. at 113 8. The Tribe brought suit in April 1976 to contest four lease sa l es that took place between April 1 970 and September 1972. rd. This was found to be an unreasonable delay. 1.n The Court also found that the delay in bringing suit resulted prejudice to the lessees: [T]he delay resulted in prejudice to the lessee defendants. Because they had no notice that anything was amiss with their Jicarilla leases until the institution of this sui~, they have invested wel l over $12 million in lease in the fo~m of bonus payments, rentals, administrat i ve overhead costs, plus exploration, d~illing and production costs. Were ~hey to lose their leases ; much of that investment would be lost, not to mention the :OS5 of future profits based on investments already made . rd. at 1339. See also, National Parks & Conservation ~.ssociation v. Hodel, 679 F . Supp. 49, 54 (D.D.C. 1987) (laches bars the act ion) A similar argument may be made by UDOT co"trac':ors if the c itizens wait too ~ong to bring suit. You mentioned that your group may want to monitor the project and then bring suit if the project does not meet with your expectations. The risk is that UDCT, the .::ontra.:: to~s and/or the Federa l Highway Adminis:ration may claim un reasonable delay and prejudice . 3 In e valuating whether to bring suit, t here are other issues you r group should consider including the process for bringing suit and defenses available to the defendants including standing. ripeness, exhaustion of administrative remedies and mootness . The Complaint The typical NEPA case begins wi th the Plaint iff f i 1 ing a Complaint in federal court seeking both declaratory and injunctive relief. The Complaint gener31ly names the various federal agencies and officials, state officials responsible for actions alleged to violate NEPA as defendants. Law of Environmental Protect ion. §9.01[3)[b). In NEPA cases. either the Department of Justice or the local U.S. at:orney represents the federal agency . Id. It 1.S common for Plaintiffs to move for an injunction in order to speed. up the process. However, if the Plaintiff loses the injunction, the case may become moot Slnce the project will be built. at 9 . 01 (3] [b] (ivJ . It if orten advisable to consolidate injunction hearing and. hearing on the merits for that l'eason. Id. Venue Plaintiff can bring suit. (1) where defendant resides, (2) where cause of action arose, ( 3) when real property involved, where it is si:uated. or (4) where plaintiff resides if real property is not in"·cl ved. 28 U.S.C.A. 51391(e) In this case, suit would be brought in the Federal District Court for the State of Utah . 4 • • • • • • Standing To bring a NEPA suit, your group (and its members) must have standing. To prove standing, members of your group must show: (1) injury in fact and (2) that his/her interests are within the zone of interests intended to be protected by the statute or constitutional provisions on which the claim is based." Specter v. Garrett, 971 F.2d 936, 942 (3rd Cir . 1992 ) . Environmental as well as economic interests allow a plaintiff to meet the threshold requirement allowing him / her to bring suit as long as injury is particularized to those plaintiffs. The Complaint must state that Plaintiff uses and enJOYS the environmental amenity alleged to be threatened . If the Plaintiff is an organization, its members must allege personal threat. See ~, Sierra Club v. Morton, 405 U.S. 727 (1972). But see, Lujan v. National Wildlif= Federation, 110 S . Ct . 3177 (1990) (the:r-e must be an injury in fact and a connection of plaintiff to it.) Ripeness A procedural defense often raised by agencies 1S that a case is not ripe. This doctrine is generally used to pr~vent suits from being brought too early in the process. Ripeness should not be an 1ssue 1n your case. According to 40 C. F.R. §1500.3, a lawsuit should not be brought before a final EIS--"judicial review of agency compliance with these regulations [should] n0t occur befo:r-e any agency has filed the final EIS or has made a final finding cf no significant impact when such a finding will result in action affecting the 5 IJ8- 1 '=.-1 :<:'14 O.:J : 26Pr'] FF'IJr" T[I P,D';" • environment or ta~es action that will result in irrepar~ble injury." See als8, Sierra Club v. MOLTon, 514 F.Supp . 856 (1975 ) (generally challenges to individual pro jects under NEPA can only be brought after fina: agency approval of the project ) ; Environmental Rights Coalition v . Austin, 780 F.Supp. 5844 (S.D. Ind. 1991) (EA not completed therefore case not ripe. ) Inapplicability of NEPA ~lother defe~se raised by defendants sued under NEPA is that NEPA does not apply. Law of En'Ji ronmental Protection, §9. 01 [3J [bJ [viJ [El Although this defense is rarely successful, it is a factor to be considered . Any lawsuit brought by your group ' • must state specific violations of law and /or statute. Exhaustion of Administrative Remedies Government agencies have also used the defense that a plaintiff has fai:ed to exhaust his / her administrative remedies, but Courts have been reluctant to penalize Plaintiffs for tardily bringing to an agency's attention what ~he agency itself should have known from i~s own studies. See ~., Pari-: County Resourc,,= Council v. U. S . . Gepartment of Agriculture, 817 F.2d 609, 619 (10 th Cir . 1987 ) Mootness Anot.her de:e::.se used in NEPA cases is mootness. A cas~ 1S moot when "iz nc :onger presents a justiciable controversy bQca~se • l.SSUeS invol vea ~ave become academic or dead ." Black's :'-aw Dicticnarv. If :~e UDOT project gets toe far alo~g, your group may - .. , - ... '::'.u.l. ..... o f :-:1OC: ::ess . Conclusion • In determining when and if to bring a NEPA claim. your group must weigh competing factors. If your group decides to bring suit and does not want risk being dismissed based on the doctrine of laches, the safest approach is to file suit before the project begins and before bids are requested . The downside of this approach is that litigation lS costly and time consuming and by filing suit you become an adversary to UDOT. Your group would have to prove how UDOT (anci any other appropri~te agency or person) has violated NEPA or other applicable regulat~ons or law. The other opt~on is to monitor the fi~st phase of the projec~ and to bring suit later if the project does not meet with your • approval and expectations. The risk in cioing this is that a court may find that the~e has been unreasonable delay and prejudice the defendants and will dismiss your lawsuit. The benef i ~ lD. waiting is that you may determine a lawsui: is not necessary. In either case, if a lawsuit is filed. members of your gro~p must be able to show that the violation or action personally a~d adversely impacts them. Without standing. your group's claims wil: be dismissed. The third opt ~on is to come to an ~gree;-;'1en~ wi th UDOT (and an:' other relevant c;.ger.cl.es or pel'sons) by ' ..... hich your group would be allowed to monitor and have some control v'ller the project. You ment ioned that UDeT wants YOU1- gl-oup to delay bringing a lawsu':'t. . This may be advisa~le as long as your gro~p receives a benefit and • 7 not lose the right to bring suit in the future. This is an o ve~view of some factors to consider in making your decision. Have yC'...ir group think them over carefully. Once you have done this, ...... e can discuss the matter further and jointly determine which ap~~oach is best . 8 " - • • • \ August 12, 1994 Mr. Dave Berg Utah Department of Transportation 4501 South 2700 West Salt Lake City, Utah 84119 Dear Dave: Enclosed are the responses of Bruce Pendery, Steve Flint, and Shawn Swaner to the working copy of the Logan Canyon Highway Record of Decision (ROD) that you provided us with. We thank you for the opportunity to review the ROD before it is signed. cc: Nathan Hult Jeff Appel EPA Denver Office EPA Washington Office FHWA Region Office FHWA Washington Office Sincerely, Bruce Pendery , " COMMENTS OF BRUCE PENDERY REASONS WHY A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (SEIS) SHOULD BE PREPARED The extreme deficiencies in the Logan Canyon Draft and Final Environmental Impact Statements (DEIS and FEIS) that indicate an SEIS should be prepared have been brought to your attention previously (see letters from EPA, Haley and Stolebarger, and Appel and Mattsson, among others, submitted in response to the DEIS and FEIS). More particularly, the letter from Appel and Mattsson (see Appendix B of the ROD) pointed out that this whole process has been "out of sync" with what NEPA requires since the DEIS was essentially a scoping document, the FEIS functioned as DEIS, and so forth. This is not a matter of quibbling over details. At the core of the NEPA process is a policy that decisions significantly affecting the human environment will not be made arbitrarily and capriciously, and will be made with opportunities for informed public participation. By placing the whole NEPA process with regard to Logan Canyon out of sync, UDOT has violated those fundamental principles, thus the need for an SEIS. Safety provides a major illustration for this contention. Safety is a purpose and need identified for this project (see ROD, FEIS, DEIS). It is not a peripheral concern, it is central to the project. It is not a stretch to say that for many people the whole Logan Canyon project boils down to weighing environmental impacts of the project versus safety impacts. Yet 1 '. , ~ the safety data which are used to support and rationalize the safety purpose and need (and the attendant preferred alternative) have been and continue to be seriously in error. As early as a 1986 public hearing, UDOT attempted to present incorrect safety data to the public as a justification for the project, despite knowing the data were flawed. Environmentalists were forced to point this error out at the public hearing so as to get UDOT not to use it. And even at this late date in the process, the safety data in the FEIS has had to be recalculated for presentation in the ROD because once again environmentalists pointed out the obvious flaws plaguing the data presented in the FEIS (see Bridgerland Audubon Society, Citizens for the Protection of Logan Canyon, and Ron Lanner letters in ROD Appendix B). Thus, the safety data in the ROD is new information that has never been presented to the public (see Appendix A of the ROD as well as the ROD itself which have large sections devoted to explaining what went wrong with the safety analysis in the FEIS). Moreover, and most shockingly, the safety data in the ROD are still wrong, as the letter from Steve Flint, contained herein, points out. So at this almost terminal date in the NEPA process we still have flawed data being used to support a major purpose and need for the Logan Canyon Project. And the significance of this is that informed public participation in this process cannot take place. All the hundreds of people who commented on the DEIS and FEIS were presented with safety information that was wrong, as 2 the need to correct this information in the ROD demonstrates. And the ROD--even if the safety data in it were now correct--will not be seen by the vast majority of people who are concerned about this project. ROD's--almost by definition--are not intended to be vehicles for public participation. Thus, the significance of UDOT's out of sync approach to the NEPA process becomes clear: not only is the process out of sync, but with each step up the NEPA ladder toward project approval fewer and fewer people are able to review the project, and those who previously reviewed the project were presented with incorrect data purporting to support UDOT's preferred alternative. Therefore, an SEIS is needed not only because the data presented have been repeatedly wrong in the past, but also because each time UDOT presents the "corrected" data, fewer people are able to participate in the evaluating the decision the data supposedly supports. UDOT tries to avoid the need for preparing an SEIS, with its attendant wide-ranging public participation, by stating that certain individuals have been closely involved in the development of the modified preferred alternative (see, e.g., ROD Appendix B page 39, but this same statement appears in numerous other places in the ROD). But involving five individuals (Bruce Pendery, Shawn Swaner, Steve Flint, Nathan Hult, Jeff Appel) in this process--while greatly appreciated and we believe productive-simply cannot substitute for full-scale public involvement in an SEIS process. As has become clear recently, public sentiment 3 regarding this project is simply too diverse and widespread to believe that the above five people adequately provide for "public involvement" when a basic purpose and need for the project has never been adequately presented to the public. While we are viewed as knowledgeable about this project in the environmental community and to some extent are considered leaders, we simply cannot and do not represent the concerns of the hundreds--perhaps thousands--of people concerned about Logan Canyon. If UDOT wants informed public participation in this NEPA process it must provide for that via and SEIS. In addition to the fact informed public participation has been hampered, UDOT's modified preferred alternative is a arbitrary and capricious decision. The DEIS, FEIS, and ROD all make much of the fact safety will be improved if the preferred alternative is implemented. But what basis can there be for that assertion when the information it is based on has been flawed since at least 1986 and continues to be flawed? I have largely exhausted the topic of why an SEIS is needed. However, I will point out that the same analysis applies to 4(f) sites and to wildlife. The 4(f) documentation in the FEIS was also wrong in a number of instances and a has had to be corrected (see ROD Appendix A, 4(f) Map section, as well as the ROD itself). Likewise, UDOT presented essentially no information in the FEIS about the numerous sensitive species in Logan Canyon (see ROD Appendix B pages 28 and 35). The ROD contains some information on these species (see ROD Appendix A, USFS Biological 4 Assessment). Thus, just as for safety, informed public participation could not take place in regard to these critical issues because the information was wrong or absent. Moreover, simply presenting the information in the largely nonpublic ROD phase of the NEPA process does not correct the problem. CURRENT LEVEL OF ACCEPTANCE OF THE MODIFIED PREFERRED ALTERNATIVE WITHIN THE ENVIRONMENTAL COMMUNITY Repeatedly in the ROD UDOT states that consensus has been reached with the environmental community with regards to the modified preferred alternative. That is an incorrect statement, which we have made clear to UDOT. Not only is it incorrect, it makes it more unlikely compromise will be reached because those most opposed to the project would deeply resent UDOT unilaterally announcing that consensus exists. Let me be clear. Since last December we have had a several discussions with UDOT. The tone of those meetings has been constructive and positive. I personally want that process to continue because I believe compromise is preferable to confrontation. However, it is my opinion that a fully acceptable compromise has not been reached yet. Let me explain why. As the modified preferred alternative stands, conservationists would get most of what they want in 14% of the canyon (road stays on current width and alignment between mileposts 383.5 to 387.5, although there could be some curve cuts we don't believe are necessary). UDOT gets everything it wants 5 .t in 42% of the canyon (full U.S. highway standard between mileposts 399.8 to 411.8, with almost 8 miles of that 12 miles having a passing lane). Neither UDOT or conservationists get exactly what they want in 43% of the project area (mileposts 387.5 to 399.8). At a meeting in early July Dave Berg asked me how far along toward compromise we were. Based on the above considerations, I said I thought we were 75% of the way there. I believe that's about where we still stand. Seventy-five percent of a potential compromise does not equal compromise, let alone consensus. Moreover, as we found out at a meeting we convened in July there is a significant group of conservationists in Cache Valley who believe we are not even seventy-five percent of the way toward compromise. This information was conveyed to UDOT in a timely manner. To summarize, I believe that a generally acceptable compromise is possible, but it can only be reached by continued hard work seeking to narrow the differences that still exist, not by premature and unilateral statements that consensus has been reached. RESPONSE TO BRIDGERLAND AUDUBON LETTER (APPENDIX B PAGE 16) The Bridgerland Audubon Society (BAS) provided extensive comments on the FEIS. I was the author of that letter, although I no longer hold an official position with BAS. Unfortunately, I believe most of the concerns that were raised in the BAS letter were dismissed with conclusory statements using circular 6 ., reasoning. While UDOT may feel it has adequately addressed this letter, I hope the FHWA and EPA will make an independent assessment of these concerns and how well UDOT has responded to them. What follows are items related to the BAS letter that I feel are particularly significant. It is not nearly an exhaustive list. 1. Since AASHTO allows for design exceptions, they are not genuinely standards. Thus, the "written-in-stone" portrayal UDOT has given to the public over the years is incorrect. Moreover, UDOT still fails to state what legal authority AASHTO has, perhaps because it has no legal authority (Appendix B, page 17). 2. On Appendix B page 25 it is stated that treatment of clear zones has been more clearly defined in the ROD. Even if true, this is yet another case of not presenting the public with correct (or clear) information until the public is largely no longer part of the process. That is, its yet another reason to prepare an SEIS. Moreover, BAS Table 3 was correct, what was wrong was that UDOT had failed to explain what "typical improved area" means in its FEIS, thus defeating informed public participation. 3. On Appendix B page 27, UDOT indicates that recreation isn't emphasized in Logan Canyon, and that it isn't a recreation area. That analysis ignores the Forest Service signs welcoming visitors to the "Logan Canyon Recreation Area," it ignores the Forest Service's attempts to get highway enhancement funds to show off Logan Canyon's many recreational attractions, it ignores 7 . \; the brown (i.e., recreational) FHWA or UDOT signs pointing the way to Logan Canyon, it ignores the clear direction in the Forest plan that Logan Canyon will be managed primarily for recreation. Under UDOT's constrained analysis, the Sawtooth National Recreation Area (also managed by the Forest Service) would not be a recreation area because its not absolutely only used for recreation (grazing is allowed in some areas). I prefer the more pragmatic duck test: if it walks like a duck, quacks like a duck, etc., it is a duck. Under that test Logan Canyon is a recreation area. And neither UDOT or the Forest Service can reinterpret the law in an inappropriately constrained way--and the law makes it clear that when the managing agency designates an area a recreation area in its plans, that area must be treated as a 4(f) area. 4. On Appendix B page 28 UDOT frets about having to concern itself with "hundreds" of species. Only 27 species were asked about, and now with the public largely removed from this process something has finally been said about them (see Appendix A, USFS Biological Assessment). Moreover, not only does the Forest Service have to do a biological assessment before a decision document is signed, it must do the assessment before the decision is made which certainly has not been the case here. 5. UDOT says on Appendix B page 29 only a Forest Plan Amendment will be required, not a revision. However, conservationists have long contended a much more significant revision will be required. Revisions are required when the basic 8 output of goods and services from a forest are altered. I believe the modified preferred alternative will meet that test by transforming Logan Canyon into yet another Wasatch-Cache National Forest high-speed conduit, rather than the singular peaceful and quiet ride in a major canyon that it currently is. In fact, Logan Canyon's beauty is not only of forest-wide singularity, it is of national significance, as a soon-to-be-released national article will demonstrate. 6. Some pages are duplicated incorrectly beginning on about Appendix B page 29 to 31. 7. While the Forest Service has evaluated the Logan River for Wild and Scenic status (Appendix B pages 29 to 31), it has also said that new information could cause a reevaluation. Such information was recently provided by Mr. Drew Parkin who is one of the nation's premier experts on wild and scenic rivers. He concluded most of the Logan River within the highway project area qualifies as a recreational river. His report has been submitted to the Forest Service. UDOT should more fully consider the ramifications of such a designation, and not just state that there will be no effect due to the project. 8. Appendix B page 32 indicates it would be speculative to worry about land use changes if the land exchange occurs. The land exchange will occur because authorizing legislation has been passed by Congress and signed by the President. And to compare Forest Service land use policy with Utah State Lands Board policy is like comparing night and day (I'll leave it to you to decide 9 ,. which is the benighted agency). There will be changes in land management and it is disingenuous to ignore that fact. In particular, the need for "laydown" fencing should be reconsidered because it is unlikely there will be cows to keep off the highway. 9. On Appendix B page 33 UDOT responds improperly to the 4(f) issues that are raised. As indicated above, all of Logan Canyon is a recreation area, its not a few parking sites. Moreover, the reason for selecting the 4(f) sites was not to protect parking, but rather to protect aesthetics, hiking, and exploration. These are the protected features or activities (see Appendix B page 34). Furthermore, not only is the conservationists' alternative feasible and prudent, it also does not produce any genuinely unusual situations precluding its selection. And when a feasible and prudent alternative fails to meet transportation needs, the needs must be reassessed, which UDOT has not done. Failure to meet transportation needs does not mean an alternative automatically causes an unusual situation precluding its selection. 10. The concerns raised on Appendix B page 35 are indeed specific to the Logan Canyon Highway project since these species occur nowhere else, and failure to address the question runs contrary to Eugene Kleckley's (FHWA) written assurance that all of our concerns would be addressed. 11. Over the years UDOT has repeatedly refused to consider 10 ,. slow vehicle turnouts as an alternative to passing lanes. However, these are a practicable alternative to the passing lanes contemplated between mileposts 391.6 to about milepost 396.5 that would avoid wetlands impacts (see Appendix B page 36 and ROD pages 32 to 34). As we have often pointed out to UDOT, slow vehicle turnouts are successfully used in several states. And UDOT has told us that they have the statutory authority to use slow vehicle turnouts. Therefore, they must be used in preference to passing lanes where wetlands impacts will occur. Additionally, while UDOT partially responded to BAS's concerns on Appendix B page 36 by reducing the road width to 34- feet between mileposts 391.6 and 399.8, this response was incomplete. UDOT fails to point out why it does not plan to leave roadway width at 26-feet in section 1b of the canyon (mileposts 387.5 to 391.6). If 26-feet is a practicable alternative in section 1a (mileposts 383.5 to 387.5), why is that not practicable in section 1b, where the canyon is virtually as narrow and wetlands/riparian impacts likely as great? Furthermore, UDOT dismisses BAS's concerns about wetlands mitigation in sections 1a and 1b by saying "the commentor . . . felt" (ROD page 33)there was a poor likelihood of revegetation success. However, it was not a matter that I "felt" there was a poor likelihood of success. Rather, I cited recent scientific literature--produced by scientists working for the very agency whose land will be impacted (the Forest Service)--stating there is a poor likelihood revegetation will be successful in areas 11 such as sections 1a and 1b (see Appendix B page 37). If the scientific literature that I cited is somehow flawed UDOT should cite "better" information. That's how science works. And NEPA demands the use of good science. Until then, it appears UDOT has no scientific basis for claiming it can reclaim the kinds of wetlands that exist in sections 1a and lb. Finally, UDOT still feels simply stating best management practices will be used is sufficient to meet water quality mandates (Appendix B page 37, see also ROD page 32). The law is otherwise. Moreover, UDOT has failed to adequately coordinate with the Utah Division of Water Rights (see Appendix B page 6) which feels UDOT has likely understated the water quality impacts of the project. Thus, UDOT is too vague about how it will mitigate water quality impacts and has likely underestimated those impacts, yet UDOT wants approval to proceed with this project. That is not how NEPA intends environmental review to proceed. 12. An inability to do a "before and after" (ie, cumulative) comparison of wetlands and aesthetic impacts in the already-widened section of Logan Canyon with the project area would be unfortunate (Appendix B page 38). However, I believe that if future aesthetic conditions of the road can be predicted in the project area, past conditions in the already-widened section can also be estimated. For example, there are certainly many old photos of the canyon that could be used for aesthetic comparisons, and many of the old wetlands have left "footprints" 12 of their existence. While not an ideal scientific situation, to simply state that no useful cumulative comparisons can be made between the project area and the lower canyon overstates the situation. UDOT says the Forest Service feels the presentation of visual quality data was more meaningful when presented in a way unlike that in the rest of the FEIS (Appendix B page 38). Why did UDOT let the Forest Service dictate this approach when BAS-and several others--made it clear in their comments on the DEIS that this was not a more illuminating approach? MAJOR FLAWS APPARENT IN THE ROD What follows are additional major flaws that I perceive in the ROD. Again, this is not an exhaustive list. 1. On page 40 of the ROD UDOT mistakenly thinks only an irreversible commitment of resources can invoke NEPA relative to 4(f) designation. Actually the test is whether designating a 4(f) site is a Federal action significantly affecting the human environment. The selection--or more importantly, lack of selection--of 4(f) sites in Logan Canyon meets that test and certainly warranted at least a FONSI or an EA. 2. On page 18 of the ROD UDOT says the Forest Service will issue a transportation easement not the special use permit described in the FEIS. What is the significance of that change? If one of these involves the Forest Service conveying a property right while the other is merely a license, this is a significant 13 ." change, and the public has not had a chance to comment or be involved in this decision. 3. As I have discussed in several of our meetings, the exact location and size of staging areas must be spelled out. This is a major project impact that has not been previously addressed. 4. I have already mentioned the tendency towards unwarranted conclusory statements in regards to how the BAS letter was addressed. That same problem is particularly evident in the defensive discussion on purpose and need on pages 27 to 29 of the ROD. As I said above, the safety data were wrong in the FEIS, are still wrong, and question begging rhetoric does not alleviate that problem. Likewise, the discussions related to traffic volume predictions, the associated level of service, the utility of SR 14 as a comparison to u.S. Highway 89, and AASHTO standards are mostly just defensive and conclusory. 5. On Appendix A page 7 there is a critical UDOT memorandum. First, under the logic developed in this memorandum, there is little or no safety rationale for the 40-feet wide road UDOT still proposes in much of the canyon. All of the remaining proposed 40-feet wide highway could just as well be 34-feet wide. UDOT should strongly consider this fact as a means of reaching a generally acceptable compromise in the canyon. However there is also a very disturbing remark made in this memo. It is stated: n[A]nd given the fact that we would be able to proceed with the construction of the project . . . n if the 14 f road width is reduced to 34-feet, going to five foot shoulders is acceptable. Did UDOT decide to go to a 34-feet width instead of a 40-feet between mileposts 391.6 to 399.8 because of its goodfaith discussions with conservationists or because EPA and/or the Corps of Engineers told UDOT they would not get a 404 permit if they did not make this change? The sentence quoted above certainly implies that someone was holding a very big stick over UDOT's head, and frankly I doubt that it was conservationists. 6. The letters from the EPA and the Utah Division of Water Rights on Appendix B pages 1 to 6 are a must read. In essence, not only has UDOT failed to insure an approved wetlands permit is acquired before the project is authorized, it has also put off significant input on water quality impacts until the as yet nonexistent design phase. We mentioned earlier how UDOT has marginalized the public's ability to participate in this process by its out of sync NEPA process. It appears UDOT is doing the same with expert agencies that should have input to this project prior to its approval, not after. A SUGGESTION FOR COMPROMISE Many of my comments in this letter have been critical of UDOT's approach to the Logan Canyon project. That's because I feel the ROD is as flawed a decision document as were the DEIS and FEIS. However, in the spirit of compromise let me offer a suggested approach. When the final ROD is issued it should only approve 15 construction of the bridges, namely Burnt Bridge, and Upper and Lower Twin Bridges. These are the "scary" bridges in many people's opinion, and as I understand it the ones that are in need of replacement due to their age. UDOT apparently has funding to reconstruct these bridges and UDOT has indicated that replacing these bridges would take about two years. During that two year period an SEIS could be prepared for the remainder of the project, wherein the public and concerned agencies are given a full opportunity to participate before a decision is made and when it can still have a major effect. Many of the major flaws that I have pointed out in this letter and my letters submitted on behalf of BAS regarding the FEIS and DEIS could be corrected in this process. The numerous other flaws pointed out by other commentors could also be addressed. The EPA's deep concern regarding segmenting a project (see Appendix B pages 1 to 4) might be addressed. Additionally, the constructive and positive discussions UDOT has had with conservationists could continue in a effort to narrow remaining differences. In any event, UDOT does not have funding for nonbridge portions of the project yet, so taking a couple of more years to "get it right" should not be a major problem for UDOT fiscally. You will note that I did not include the Red Banks, Franklin Basin, or Amazon Hollow structures/bridges in this proposal. There is simply too much controversy associated with them (due to their extreme width and wetlands impacts) to expect that they would meet with general acceptance, unlike the three bridges 16 " mentioned above. Moreover, as far as I know, the only "problem" with these bridges is that they are not as wide as UDOT would like. However, they do not seem to be as narrow as the bridges mentioned above (they certainly are not "scary"), and they are not nearing the end of their useful life so far as I know. Thank you for this opportunity to provide these comments on the ROD, and I hope that UDOT and the FHWA will consider this compromise proposal so that a generally acceptable compromise might be reached for the Logan Canyon project. Sincerely, ~8~~ Bruce Pendery 755 Canyon Rd. Logan, Utah 84321 17 ... Mr. David Berg UDOT Environmental Division 4501 S 2700 W Salt Lake City UT 84119 Dear Mr. Berg, Shawn Swaner USU Box 1625 Logan, Utah 84322-0199 August 10, 1994 I appreciate the opportunity to participate in the preparation of the Logan Canyon Record of Decision and have several comments on the draft copy of that document. I have many concerns about waiting until the design phase to resolve controversial issues. As we discussed on the August 3 field review, the RoD is a legally binding document that must be adhered to in design. However, verbal and informally written commitments could be overlooked or omitted from final design for a variety of reasons. For the sake of reaching compromise, I would like to see the RoD become a more formal record of what is to be done and provide binding guidelines for the design phase. The following comments are areas that I feel need more comprehensive coverage to ensure concerns resolved prior to the submission of the RoD are not "lost" over time. Dugway During the August 3 field trip, there was discussion concerning the width of the cut at the Dugway . To widen the width of the cut from 4 feet to 12 feet would cause considerable additional aesthetic impacts in this area. It could result in design changes to the roadway width and number of lanes in this area. The width of cut and method for making the cut should be covered in the RoD. Cost considerations should be evaluated now, rather than during design. , Lower Twin Bridge The proposed sloping of the south cut at Lower Twin Bridge would most likely provide better revegetation and possibly less of and aesthetic impact. The removal of the existing bridge support structure should be more thoroughly covered. Impact reducing measures such as sawcutting versus jackhammering are very important considerations and should be written into the RoD. Also, guidelines should be established for the disposal of the old bridge. Temple Fork The amount of variables at Temple Fork cause for a great amount of concern. I am grateful for the elimination of the left turn lane. I also feel that realigning the intersection will provide greater safety. However, the close proximity of the river and adjoining riparian habitat make it a sensitive portion of the project. I am concerned about the adding of an uphill deceleration and turn lane. Although the additional width will be cut into the hillside, I urge that extreme care be taken to ensure minimal construction and post construction impacts on the river and riparian habitat. Concerns have been raised about the threat of siltation due to runoff during construction. There are also concerns to aesthetics of this area. Once again, clarification of how these issues are to be dealt with would be justified in the RoD. Beaver Creek The Beaver Creek corridor is similar to the lower middle canyon in narrowness and close proximity of riparian and wetland habitat. Language similar to that used to describe the Lower Middle Canyon should be used here. Specific areas of concern are the use of clear zones, total roadway width in areas to be contained by retaining waifs, and use and type of protective guardrail. Specific attention should be given to that habitat of this section as it has unique terrain that is not conducive to clear zones within proposed clear zone areas. • Amazon Hollow Bridge This is an area raised in early 1994 during a field review. At that time it was indicated that impacts to the wetlands adjacent to this bridge could most likely be avoided. Considering that the actual intersection will be moved farther east, away from the bridge, and that a shorter taper could be employed, this should be possible. It would seem that a consultation of maps should answer whether this is possible, or whether it would require a design exemption. If it requires a design exemption, then that must be included in the RoD, if it does not then it should be indicated that the wetlands will be avoided, as Federal agencies have directed. If UDaT does not feel that avoiding these wetlands is possible, then that should be made clear so that we can Inform our constituents. Curves 69, 70, 71 and adjacent forest. After numerous discussions on passing lanes, I agree that the addition of a passing lane to the 40 foot roadway section would result in only the addition roadway width of 7 feet. However, if this additional width causes a substantially higher road base width or a wider fill, then that should be the primary focus regarding impacts. Therefore, relating to these curves, the addition of seven feet of width could cause severe impacts to habitat and aesthetics by the inclusion of fills. Please evaluate whether retaining walls could be used to limit the amount of sliver fills down the steep slope of these curves. Also indicate the safety device to be used along this section of the road. A five foot shoulder would nearly double the amount of cut and fill necessary, has UDaT included the in it's impact evaluation? Curve 85 Forest Impacts Impacts to the forest habitat surrounding curve 85 are of prime concern to CPLC. Several alternatives have been proposed by both UDaT and CPLC. CPLC has a two fold concern in this area, and no proposed alternative adequately resolves these concerns. The first and primary concern relates to the elimination of trees in this area due to curve realignment and roadway widening. The aesthetics of travelling through this area are a unique experience in the canyon and as such are of concern. The widening of the road and the implementation of wider shoulders and safety features would eliminate the close proximity of these trees, resulting in the lose • of the aesthetic value. I realize that curve 85 has a high degree of curvature (23 degrees) and the problem of icing during winter months makes this curve a safety concern. The proposed alternatives all offer varying degrees of satisfaction for CPLC various impacts to safety and environment. I offer the following comments on the proposed alternatives for this section. Ending the passing lane above Sunrise Campground This would reduce the amount of aesthetic impacts to this area but would not accomplish much unless the curve was maintained on its present alignment. I realize that safety standards would preclude the use of this option. ReRouting of Road from Summit to approx. MP This is a dramatic change from previous plans and a such I have very little information on its impacts and also on how the body of CPLC regards it. I am initially in favor of this proposal, as I indicated on the August 3 field review, however, we must more thoroughly examine all aspects of this proposal before myself or CPLC can formally accept this proposal. Impacts to habitat should be evaluated, as well as the manner of and amount of cut and fiJI that would be necessary to accommodate the roadway. Also, work must be done to show how the realigned portion would reacquire the original road. I feel this is a matter of prime concern that must be dealt with in the RoD. If UDOT wishes to proceed with design changes outlined in the FEIS, then that should be make clear. This is not an issue that can be left until final design. Old Road on Garden City side of ProJect The draft RoD is suitable regarding removal and revegetation of abandoned road. However, can the RoD include a statement that no abandoned road will be left intact above the Garden City Limits? • Impacts from Mitigation CPLC has raised concerns about the impacts from mitigation. These concerns could be allayed if we could review a mitigation plan from a similar project. Also, what guidelines are followed, are they published and if so in what publication. Review of mitigation plans and procedures should show that those procedures are acceptable and not as impacting as we believe, if in fact they are not. Land Use What is the duration of the planned construction/pose-construction monitoring plan? Will they have the necessary budget and staff to revegetate or fix areas of mitigation and revegetation that fail? What will be the role and extent of communication with agencies other than the Forest Service? Should not more agencies be included in roles greater than that of the CAT team? What Best Management Guidelines will be used in Rich County, which has now guidelines of its own? Social Impacts While a majority of social impacts, notably those relating to Garden City residents are outside our primary area of concern, the impacts to recreation and access in the canyon are of interest. Despite categorizing sites in the canyon into 4(f) sites, the canyon as a whole must not be overlooked as a recreation area. Logan Canyon is a recreation area, regardless of its designation. There are many more sites beside the designated 4(f) sites that fit the same criteria. The close proximity of the canyon's 4(f) sites indicate that the whole canyon is a contiguous recreation site and as such should be treated as such. The recreation value of the canyon is not just a sum of available parking areas and turnouts. Social impacts are not only loss of these parking areas, but also the degradation of the canyon natural resources. \ • Water Quality Impacts Siltation of the rivers and streams both during and after construction of an area of high concern. What guidelines will be used to ensure long term avoidance of siltation due to road runoff. Plans have been made for the first four miles of the project, but not much has been said of the rest of the project. Is there an AASHTO guide for this? Wetlands and Botanical Resources As mentioned previously, impacts which can obviously be avoided should be listed in the RoD. As the actual design may take place several years into the future, and concerns discussed prior to the release of the RoD could be overlooked. My inclination (and not necessarily that of CPLC) is that concessions resulting in less impacts to wetlands and riparian habitat are of prime interest, and that my emphasis is on these concessions, rather than concerns in the upper canyon and on the Garden City side. Hence, wetlands in the Lower Upper Canyon, and the Beaver Creek corridor are of deep interest. Avoidance of impacts in these areas are much more important than many other concerns and should be given thorough coverage. Water Body Impacts and Wildlife Impacts What studies are used to justify that lay down fencing will not adversely impact wildlife migration? What measures will be taken to minimize the likely increase of animal vehicle collisions due to higher vehicle speed? Regarding clear span bridges, what guidelines will be followed to minimize construction impacts to the river from the close proximity of the spans, noting that those spans will not be in the river, but in very close proximity. Does the erosion control plans mentioned in the RoD also cover bridge construction? Is there enough information about fisheries in the canyon to adequately determine what mitigative measures will be undertaken? Why not do a study prior to construction to determine the current state of fisheries? • Construction Impacts Please include information regarding the potential air quality impacts of a bituminous processing plant. What permits would be required for this? Should these permits not be included in the RoD? Can a plant be built in the canyon if the impacts of such a plant where not covered in the FEIS or prior? Construction detours could represent an additional substantial impact. What will be done to minimize the use of detours, where will detours be prohibited, who has final decision over use and location of detours? Another impact that has been previously overlooked is staging areas. The construction of staging areas on sites previously mapped as untouched create a new impact that was undocumented in the environmental documentation. Comments on the FEIS Overall, I feel that UDOT's handling of public comments has been very poor and is a major contributor to current feelings of mistrust towards UDOT from CPLC members and the public. Better handling of comments could have greatly improved relations and led to better cooperation on this project. The dismissal of concerns and comments is certainly realistic, but dismissal without adequate explanation is unacceptable to the commentator. The replies to comments in the FEIS and the RoD indicate that UDOT has little regard for the publics input and if it was evaluated at all, no mention of how those suggestions where incorporated or dismissed was given. Regarding the statement in the last sentence of page 29 of the draft RoD, consensus has not yet been met. Representatives from FHWA, Garden City, CPLC and within UDOT have expressed concerns that would indicate that consensus has not been reached. It is damaging to the consensus building process to declare that consensus has been reached when in fact it has not. Traffic and Safety Data In the August 1 meeting, UDOT stated that accident and traffic data was "garbage." It would seem that if improving safety and level of service were the intent of the project, then accurate data would be required to justify that purpose and need. Since the traffic and safety data is inaccurate, it would seem that purpose and need should be altered to include only level of service and substandard design. Conclusion I appreciate the opportunity to participate in the development of the Record of Decision. As a representative of CPLC, I look forward to continued communication on the many issues surrounding the Logan Canyon project. Sincerely, GP,'-/ s:'.....,g....uz Shawn Swaner |
|
|
|
A |
|
B |
|
C |
|
D |
|
E |
|
F |
|
G |
|
H |
|
I |
|
J |
|
L |
|
M |
|
N |
|
O |
|
P |
|
R |
|
S |
|
T |
|
U |
|
W |
|
|
|