Via Federal Express
 

Mr. Norman Stoner Division Administrator Federal Highway Administration 3250 Executive Drive Springfield, Illinois 62703

Mr. Peter E. Harmet Lake County Transportation    Improvement Project 25663 Hillview Court Mundelein, Illinois 60060

Re: Comments on Draft Environmental Impact Statement for the Lake County, Illinois, Transportation Improvement Project

Dear Mr. Stoner and Mr. Harmet:

Thank you for the opportunity to submit comments on the Draft Environmental Impact Statement ("Draft EIS") for the Lake County Transportation Improvement Project.  We are submitting these comments on behalf of Citizens Organized for Sound Transportation, the Lake County Conservation Alliance, Business and Professional People for the Public Interest, and the Environmental Law and Policy Center of the Midwest (collectively "Commentors").

I. The Draft EIS Relies On Unsupported Conclusions To Determine The Transportation Need

LCTIP supports the findings of transportation need that form the basis for this study with reference to its January 1999 Transportation System Performance Report.  (Draft EIS at ES-3.)  While LCTIP adequately and accurately details in the report the current functioning of the various modes of transportation in Lake County, it reaches several erroneous and unsupported conclusions from the report.

A.  Public Opinion As Expressed In LCTIP’s Focus Groups And Quantitative Research Does Not Support A New Highway

LCTIP’s quantitative research study (reported in Appendix B of the Transportation System Performance Report) yielded similar, clear-cut results.  When asked to rate a number of travel factors based on the degree of frustration that they felt about the factor, only 35% of respondents expressed a strong degree of frustration with "too few major highways going North to South."  Even when the responses of people who live east of I-94 are excluded from the results, only 42% of responds expressed frustration with the lack of a north-south highway.  When specifically asked to state how helpful they viewed possible transportation solutions, 72% said installing turn lanes at major intersections would be helpful to them and 63% thought widening existing roads would be helpful. In contrast, only 43% believed that building new highways would be helpful.  Although that percentage increases to 51% when residents east of I-94 are eliminated from the total, that result is still significantly less than the 74% and 70% of residents west of I-94 that were definitely more interested in adding turn lanes and widening existing roads, respectively.

These results of LCTIP’s public outreach do not support the Draft EIS’s assertion that residents broadly support major highway improvement.  Moreover, more recent public outreach sessions, conducted by the Regional Planning Commission, the Northeastern Illinois Planning Commission (NIPC) and the Center for Neighborhood Technology (CNT), all indicate that Lake County residents are more interested in improvements to existing roads and transit than a new highway. For example, in its work to update the Lake County Framework Plan, the Regional Planning Commission held a series of meetings around the county with village planners, mayors and interested citizens.  During these meetings, many more residents called for existing road and intersection improvements than for the extension of Route 53.  Similarly, in NIPC's February 8, 2001 planning session in Lake County and CNT’s Connecting Communities summit, few participants expressed an interest in extending Route 53 as a way to improve their transportation.

B.  LCTIP’s Data Supports A Greater Emphasis On Public Transit, Not Highways

C.  The Population And Employment Projections Do Not Support The Conclusion That Central Lake County Needs a New North-South Route

II. LCTIP’s Limited Analysis Of The Affected Environment Is Legally Insufficient

A. NEPA Mandates That The EIS Include A Detailed Comparative Analysis Of The Environmental Impacts Of The Alternatives

B. LCTIP’s Assessment Of The Affected Environment Fails To Meet NEPA’s Requirements

• LCTIP removed artificial, converted and farmed wetlands from the study in the Draft EIS and will consider these categories of wetlands for the first time in future studies (Draft EIS at 2-25);
• LCTIP is waiting until after selecting the preferred alternative to verify impacted ADID wetlands with a field-based, multi-functional wetland assessment (Draft EIS at 2-26);
• The review of biological and archeological resources for the Draft EIS involved no fieldwork (Draft EIS at 2-30, 2-47);
• The analysis of noise sources in the Draft EIS notes that the height of the source contributes to the noise level, yet LCTIP has not identified the expected height of the Route 53 freeway/tollway at any point along its 27-mile route (Draft EIS at 2-45);
• Because LCTIP identified the possible affected cultural resources through existing data and limited field investigation, the Draft EIS states that further work will be necessary to determine the level of impact to these resources (Draft EIS at 2-47);
• LCTIP did not conduct field reviews or testing to assess special waste sites even though IDOT’s date shows that a simply database check discovers only 50% of the LUST locations in a particular area (Draft EIS at 2-50); and
• The Noise analysis does not include the identification of sensitive receptors, such as hospitals, schools, churches and special land uses (Draft EIS at 4-51) and makes no attempt to detail the implementation and impact of noise abatement measures for each alternative, leaving the reader with only the general, unsupported conclusion that the Route 53 extension "offers the potential for considerations of a number of abatement options."  (Draft EIS at 4-55.)

III. LCTIP’s Methods For Creating And Analyzing Alternatives Are Inadequate

A.  LCTIP Failed To Use An Iterative Process To Develop Multi-Modal Alternatives

B.   The Benchmark Measure Used To Assess The Effectiveness Of Alternatives Is A      Plan That Includes The Route 53 Tollway Extension

Moreover, by using a plan with Route 53 as a benchmark, the alternatives development process was artificially constrained.  It is not surprising that with Route 53 as a component of the benchmark, LCTIP failed to craft an alternative that would provides greater benefits or addresses the needs of a larger number of travelers than the Route 53 extension. LCTIP thus prevented a fair and rigorous study of all reasonable alternatives that would meet the general goals of the project by using one of the alternatives as the standard by which to judge the effectiveness of any option.  This flies in the face of NEPA’s clear requirement that an agency consider in depth all alternatives that "accomplish the general goal of an action" (Van Abbema v. Fornell, 807 F. 2d 633, 648 (7^th Cir. 1986)) and are "practical and feasible from the technical and economic standpoint and using common sense."  Council on Environmental Quality, "40 Most Asked Questions," Question 2a, 46 Fed. Reg. At 18027. ¹

C. The Failure To Modify The IL 83/US 45 With US 12 Option Improperly Leaves The Public And Decisionmakers With An Unacceptable, Destructive Alternative To The Route 53 Extension

Despite the severe impacts and clear public opposition to the St. Mary’s road portion of the IL 83/US 45 with US 12 alternative, LCTIP has failed to modify this plan to make it a viable alternative to the Route 53 extension. It is simply not believable that the only effective alternative to the Route 53 extension must involve widening St. Mary’s Road.  The failure to devise an alternative without a St. Mary’s Road widening component is a planning failure that contradicts NEPA’s requirement that agencies study all reasonable alternatives. With St. Mary’s Road as part of the only alternative to the Route 53 extension, LCTIP has unfairly and illegally tipped the scales in favor of a new highway/tollway. Before this study is allowed to move forward, LCTIP should be required to modify the IL 83/US 45 with US 12 alternative (or another of the alternatives) to give the public a genuine choice among realistic alternatives.

D. The Failures To Discuss Impacts To East-West Travel And The Differences Between A Freeway And Tollway Are Potentially Misleading

 For purposes of analyzing the Route 53 extension, the Draft EIS assumes no differences in travel benefits or environmental impacts between a freeway and a tollway.  This assumption ignores the real experiences of drivers on tollways and the known impact that toll collections have on use of the road.  For example, any driver in this region can describe the delays caused by toll plazas and the need to merge after going through the plaza.  Moreover, residents in eastern Lake County are well aware of the increase in truck traffic on 41, as truck drivers change routes to avoid paying tolls on I-94.  To provide the public and decisionmakers with sufficient information to judge the benefits and detriments of the alternatives, LCTIP should fully discuss the potential toll on the Route 53 extension and analyze the real differences between a Route 53 tollway and freeway.

III. The Estimate Of The Cost Of The Route 53 Extension Defies Credibility

In a March 2000 report to Governor Ryan, Alternatives for Restructuring the Tollway System: A Report to the Governor, the Illinois State Toll Highway Authority listed the cost of Route 53 as $1.86 billion, consisting of $148 million for design cost, $1,543 billion for construction cost, and $167 million for inspection cost (and not including right-of-way acquisition).²   LCTIP now maintains that the cost of the road is $861 million.  (Draft EIS at 3-22, Table 3-10.)  Although page 3-22 of the Draft EIS states that this figure includes right-of-way acquisition costs, page 4-97 states that the cost estimates of the alternatives do not include the right-of-way.  Even assuming that the $861 cost figure does not include almost $200 million needed to purchase the right-of-way, this estimate is dramatically different from the number used in the report to Governor Ryan.  The credibility of this estimate is further undermined by the cost of another proposed tollway in the region.  The I-355 South extension is currently estimated to cost $824-825 million.  This tollway is 12.5 miles in length, less than half of the length of the Route 53 extension.  It is not believable that the Route 53 tollway could cost so little more than the I-355 South extension.

IV. LCTIP’s Analysis Of The Impacts Of The Alternatives Falls Far Short Of NEPA’s Requirements

A. LCTIP’s Constrained Review Of The Direct Environmental And Growth Impacts Of The Alternatives Is Legally Flawed

Second, LCTIP bases its approach on the incredible notion that each of the alternatives—whether a six-lane tollway, portions of which will be elevated, or an expanded local road—will have the same impacts on the surrounding environment.  For example, LCTIP’s analysis assumes that the six-lane tollway, designed to carry greater volumes and higher-speed traffic, will have the same impacts from runoff of pollutants as a four-lane local road.

Unlike the environmental impacts, LCTIP looks beyond the footprint of the alternatives to assess the direct development impacts to agricultural and undeveloped land.  (Draft EIS, Figure 3-18.)  However, LCTIP again places artificial, unreasonable limits on the scope of its analysis.  In particular, LCTIP only considers the direct growth impacts to agricultural and undeveloped land within a half mile of the right-of-way.  This constrained view of direct impacts improperly ignores many expected impacts from the alternatives.  And, as in the case of the environmental impacts, this approach erroneously assumes that the impact from a six-lane highway will extend the same distance as the impacts from a widened 4-lane road.  As a result of all of the serious flaws in the analysis of direct environmental and growth impacts, the Draft EIS falls far short of the analysis called for by NEPA and its regulations.

B. The Draft EIS Gives The Erroneous Impression That The Build Alternatives Frequently Have Greater Impacts Than The No-Action Alternative

C.  The Draft EIS Mischaracterizes The Likely Growth Impacts From The Route 53 Extension

Second, the Draft EIS overlooks the development impacts that will result from the population and employment growth caused by the Route 53 extension.  LCTIP focuses its employment and population discussion on the fact that the No-Action alternative is expected to cause significantly more growth than the Route 53 extension.  Even assuming that is correct, Route 53 will have significant growth impacts that LCTIP never mentions.  For example, Route 53 will bring substantial population increases to some presently rural areas, such as 6,350 new people to Freemont Township—a 44% increase over Freemont’s 1990 population.  The Route 53 alternative also is expected to bring larger increases in population and households to many areas than IL 83/US 45 with US 12, including Antioch, Lake Villa, Grant and Avon townships.  Likewise, the Route 53 proposal is predicted to substantially increase the total number of jobs in many communities that are currently less developed, like Ela, Freemont, Grant and Avon.  As a result of these increases in population and jobs, Route 53 will cause open space and undeveloped land in these communities to be converted to homes and businesses.  The Draft EIS never discusses these clear impacts.

Finally, the Draft EIS mischaracterizes the pattern of employment growth with the Route 53 alternative.  The Draft EIS states that the two build alternatives would continue the same pattern of new job growth as found under the No-Action alternative.  This is not correct.  In fact,  townships like Libertyville, Deerfield-West Deerfield and Warren—big job gainers under the No-Action scenario—actually either loose jobs as a result of the Route 53 extension or only gain a very small number (Draft EIS, Figure 4-13 and pages 4-12 and 4-14.)  Because it misstates the employment pattern resulting from the Route 53 extension, the Draft EIS also fails to consider how that pattern will impact the development of open space throughout the county.

D. LCTIP’s Analysis Of The Impacts To Surface Water And Wetlands Is Inadequate

In the case of wetlands, the data in the Draft EIS makes it clear that Route 53 would have the greatest impact on wetlands.  The Route 53 alternative (without the baseline improvements) would impact the largest overall area of wetlands and the greatest number of Class I, high quality, wetlands; 53 impacts 36 acres of Class I and II wetlands and over 55 acres of Class III wetlands.  Whereas, the IL 83/US 45 with US 12 alternative would affect 37 acres of Class I and II wetlands and only 20 acres of Class III wetlands.  The Draft EIS also notes that impacts to wetlands from roadway operations, including runoff of pollutants and impacts from deicing, would not be as substantive for improvements to existing roads because the areas are already subject to impacts. (Draft EIS at 4-37.)

Despite this clear data, the text of the Draft EIS misleadingly relies on percentages to give the impression that the IL 83/US 45 with US 12 alternative would have greater wetlands impacts.  For instance, the Draft EIS states that "[a]lmost two-thirds of the wetlands impacted for the IL 53 Freeway/Tollway Alternative are considered low quality (Class III) wetlands, whereas only approximately one-third of the wetlands impacted as a result of the IL 83/US 45 with US 12 Alternative are considered Class II wetlands."  (Draft EIS at 4-36.)  Given that the Route 53 extension would impact a much greater number of wetlands, it is difficult to understand the relevance of this analysis, except to create the impression that the IL 83/US 45 with US 12 alternative is a less environmentally damaging alternative.

As stated above, the Draft EIS also improperly fails to consider direct impacts to wetlands outside the footprint of the alternatives.  In the Draft EIS, LCTIP notes that "[c]ommonly, regulatory agencies also consider the effects of the direct impacts on portions of impacted wetlands outside the project right-of-way."  (Draft EIS at 4-37.)  But the Draft EIS then concludes that this study will address these impacts only after the selection of a preferred alternative—giving the public and officials no way to compare the full impacts of the two alternatives before one is selected.

E.  The Draft EIS Unlawfully Fails To Estimate The Ozone-Related Impacts Of The Build Alternatives

In addition to relying on the regional conformity finding, LCTIP conducted a micro-scale carbon monoxide air quality analysis and a carbon monoxide analysis for a toll plaza using the CAL3QHC and Mobile 5a software.  However, LCTIP never analyzed the non-carbon monoxide impacts of either alternative.  Thus, even though LCTIP used the Mobile 5a model to assess carbon monoxide impacts from a toll plaza along the proposed Route 53, it did not use the model to measure the emissions of the ozone precursers, VOC or NOX, from the alternatives. Emissions of VOC (which always have a negative impact on air quality) and NOX are readily measurable using the Mobile 5a model. LCTIP’s analysis also completely fails to assess the emissions of air toxics related to automobile use. Consequently, the Draft EIS lacks the data necessary to conduct a full, comparative estimate of the ozone-related impacts of the Route 53 alternative or the IL 83/US 45 with 12 alternative.

F. The Section 4(f) Evaluation Fails To Meet The Legal Requirements

Each of the alternatives studied in the Draft EIS would significantly impact resources protected by Section 4(f).  The Route 53 extension, for example, would divide Leo Leathers Park and directly impact Almond Marsh.  Instead of seriously studying these impacts and adhering to Section 4(f)’s clear mandate to avoid using Section 4(f) land unless no feasible and prudent alternatives exist, the Draft EIS simply assumes these impacts are unavoidable.  Additionally, the study minimizes the real Section 4(f) impacts by failing to consider any impacts to Section 4(f) properties other than direct impacts from the right-of-way.  Consequently, the study ignores the changes to the character of the Section 4(f) properties that are likely to result from the build alternatives.  Finally, the Draft EIS improperly defers a detailed Section 4(f) analysis to later, stating that a "[f]ormal Section 4(f) designation and evaluation will be the subject of future studies, to conclusively identify the nature and extent of any Section 4(f) impact."  (Draft EIS at 4-61.)   This statement indicates that LCTIP plans to move forward with a Final EIS, selecting a preferred alternative, and only then will it study and assess the full impacts to Section 4(f) property.  This approach to lands protected by Section 4(f) is contrary to the law.

VI. The Analysis Of Secondary And Cumulative Impacts Is Completely Flawed.

LCTIP improperly limited the secondary and cumulative impacts analysis to a geographic area shown in Figure 4-30.  The boundaries of this zone are puzzling and not consistent with the text of the Draft EIS and the study’s findings regarding population and employment growth.  In particular, the EIS states that the western and north-central parts of the county will see the most pronounced growth over the next twenty years.  However, the project influence zone excludes all areas west of Wadsworth and north of 132.  This is especially strange since Lake Villa, Newport and Antioch are expected to see significant population growth when considered in light of the current sparse population of these areas.  The Route 53 extension is predicted to raise Newport’s population by 5.7% and its households by 7.2%, yet Newport is not in the project influence zone.  Similarly, the Route 53 extension is expected to cause Shields Township to grow in population by 10.7%, yet the project influence zone excludes much of this township.  Likewise, the Route 53 extension will cause Warren Township to experience a 11.2% population increase, yet most of this township is not in the project influence zone.

For employment, the Route 53 extension is expected to bring 1,100 new jobs to Ela Township, but all of that township east of Quentin Road appears to be excluded from the project zone of influence.  Due to its constrained geographic scope, the secondary and cumulative impacts analysis is completely inadequate.

Moreover, the Draft EIS’s discussion of the potential socioeconomic, land use and natural resources effects is incredibly general and theoretical.  For example, the Draft EIS makes absolutely no effort to quantify the potential wetlands impacts expected to result from secondary and cumulative growth.  Instead, after a general discussion of trends unrelated to the proposed alternatives, the Draft EIS concludes that a combination of practices (none of which are analyzed with respect to this project) will slow the rate of wetland loss in the county.  (Draft EIS at 4-84.)  Additionally, while the Draft EIS notes that municipalities control land use decisions and that some have ambitious plans while others are trying to slow growth, it fails to study the existing local plans to determine how they will be affected by the Route 53 extension and the 12 interchanges planned for this highway.

This cursory review of secondary and cumulative impacts is legally inadequate.  The Route 53 extension, for example, is expected to take up 1,268 acres of land in Lake County and bring 27,500 additional people. NEPA requires an actual analysis of potential secondary and cumulative impacts, not simply a general conclusion that because the county is growing, a new 6-lane highway will not have much impact. LCTIP’s vague overview of historic trends in the entire county is not a substitute for a real analysis of how each alternative is expected to impact growth and thus all of the natural resources in the area.

VII. LCTIP’s Public Open Houses Do Not Satisfy The Public Hearing Requirement

The public open houses conducted by LCTIP at various points in this project were  deficient.  The open houses were not public hearings in the traditional sense nor were they the type of hearings that have been historically provided on federal highway projects and that the public has come to expect. There was no session that allowed for the oral interchange of comments and ideas before a public audience. No forum was provided at which members of the public could learn about each other’s ideas, thoughts or comments.  Instead, there were displays  at which the visitors could review different aspects of the proposed highway and provide written comments.  The exchange of comments and ideas was on a one-on-one basis between the display visitor and the government representative standing nearby.

The United States District Court for the Central District of California commented on the propriety of such open-house type hearings.  The court stated that

the plaintiffs have raised serious questions about whether the format of an open house is the equivalent of a public hearing.  Both the pertinent statute and regulation require one or more public hearings.  23 U.S.C. § 128; 23 C.F.R. § 771.111(h).  Public hearings provide the community and the decisionmakers a forum for the free and contemporaneous exchange of ideas.  It is a dynamic process, which has at its core the idea that it is only through a public meeting that details and intricacies of controversies can be best explored and understood.

23 U.S.C. § 128(a) provides in relevant part

Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village . . . shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.

Other courts have focused on Congress’s intent behind providing for the public hearing in the statute.  One court, after reviewing the evolution of the hearing provision, stated that "[t]his history shows a long-standing and ever increasing congressional concern that highway planners be directly and publicly confronted with opposing views, to ensure that the planners take close account of the objections and desires of individual citizens affected by the proposed projects during the planning process."  D.C. Fed’n of Civic Ass’ns v. Volpe, 434 F.2d 436, 441 (D.C. Cir. 1970).  Another court stated that, in modifying this statute over time, Congress was responding "to a recognized ‘need to increase the effectiveness of public hearings.’"  National Wildlife Fed’n v. Snow, 561 F.2d 227, 236 (D.C. Cir. 1976) (quoting S. Rep. No. 1340, at 6 (1968)).

The review of this case law makes clear that the provision for a public hearing in 23 U.S.C. § 128 is not satisfied by the open houses that LCTIP provided.  First of all, as noted by several courts, the legislative history of the statute itself says that this is supposed to be a town-hall style hearing.  A town-hall style hearing is one at which members of the public are permitted to orally comment to government representatives in front of an audience made up of other members of the public.  An open-house style meeting is not the same as a town-hall style meeting because an open house consists only of displays and does not provide members of the public with an opportunity to comment in front of an audience.  Further, it is important to emphasize that the D.C. Circuit stated in Volpe that highway planners should be publicly confronted with opposing views.  This requirement is not met when comments are only accepted via one-on-one discussions with government representatives at displays or written on comment cards.  In sum, because LCTIP’s hearings were not of a town-hall form, they were deficient and did not meet the FHWA’s NEPA hearing requirements, 23 C.F.R. § 771.111(h), or 23 U.S.C. § 128(a).

LCTIP must perform significant additional analysis before the Draft EIS can be considered sufficient under federal law.  The Commentors are willing to answer any questions concerning our comments or contribute in any way to the development of a legally satisfactory study of transportation in Lake County.
 
 

Very truly yours,

Ann M. Spillane
Senior Attorney
 

cc: Ms. Sherry Kamke