Various papers commenting on the Logan Canyon construction project, 1994

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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
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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.
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Alternative #2
ConseNationist Plan of Action
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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.
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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.
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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?
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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 .
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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
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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
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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
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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
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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
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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..
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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
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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 .
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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.
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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
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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?
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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.
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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?
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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