WETLANDS:
West Eugene
Transportation, Land and
Neighborhood Design Solutions
SLIDESHOW:
virtual tour, hidden history
WEP would worsen traffic
Osprey
Group report
ignored
WETLANDS alternative
&
2001 "No
Build"
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June 2006: last gasp?
Federal Highway - new route
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WEP alternatives:
$17, $88, or $169 million
WEP
would have more
traffic lights than
WETLANDS alternative
hospital
siting
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disaster preparedness
Region 2050
TREES:
Transportation
Energy
Environment
Sustainability
1999: 4(f) removed
In 1999, ODOT requested that FHWA remove Section 4(f) designation for the BLM’s West Eugene Wetlands parcels in the path of the parkway. This action was done without any public notice or input, and was only made known to any citizen in 2002 when the author of this report was told about it by an ODOT official. Section 4(f) is one of the strongest federal environmental laws, and one of the most important for protecting public lands from ill-conceived road projects.
ODOT officials declined to inform anyone that FHWA had removed 4(f) from the process during the October 1999 public information session, the discussions at the Eugene City Council about segmentation and fiscal constraint during 2000 and 2001, the June 2001 “West Eugene Charette” or in Oregon Transportation Commissioner Randy Pape’s and ODOT Director Bruce Warner’s public statements during the debates leading up to Measure 20-54 in November, 2001. ODOT did tell the Eugene Planning Commission that they had done this after questions were raised, but ODOT not make a more public revelation about their actions. ODOT did tell this the OTC about the 4(f) removal in its September 2001 packet about the WEP, but they did not publicize this information. In addition, FHWA has never made any known public comments about their decision regarding 4(f).
It is likely that the removal of 4(f) was due to the BLM’s objection to use of Land and Water Conservation Funds -- an act of pique by pissed planners, not a serious legal analysis. Section 4(f), which prohibits use of parklands and public conservation areas unless there are no prudent and feasible alternatives, is a different law than the requirements mandating protection of LWCF purchased nature refuges. In other words, the ODOT / FHWA effort to evade 4(f) analysis did not affect the fact that LWCF lands cannot be used for highway construction.
Technically, the FHWA removal of 4(f) was not a final decision, since it was not published as part of a Record of Decision. But its removal ensured the disenfranchisement of citizens from the NEPA process, since there was no way for citizens to learn about this decision without constant pestering of ODOT officials, which is not a good public involvement process. Fortunately, the 2004 Re-evaluation suggests that 4(f) will probably be reapplied to the BLM lands, and 4(f) is likely to ensure that an alternative similar to WETLANDS must be given full consideration.
Timeline of removal of 4(f) protection from the West Eugene Wetlands
1997 FHWA/ODOT Supplemental Draft Environmental Impact Statement includes section on 4(f)
“The BLM and the City of Eugene are managing properties within the plan area as interconnected biological systems, including upland habitats that are functionally tied to these wetland plant communities. The wetland communities, and the entire system, support several species of sensitive plants and animals. Since the BLM and City of Eugene properties function as refuges for the protection of species, they are protected under Section 4(f). The Fern Ridge Path is designated as a major recreation facility in the TransPlan (1986) and the Eugene Parks and Recreation Plan (1989) and is, therefore, a protected Section 4(f) resource.” (SDEIS p. 5-1)
“Obtaining fill material from the Fisher Butte quarry may require use of 4(f) property depending on which access road to the site needs to be used.” (SDEIS p. 5-3)
March 31, 1999 The BLM issues its policy on “Prohibition on Disposal of Acquired Land”
LWCF acquisitions will remain in Federal ownership. Disposal of LWCF-acquired land and interest in land by any means, including exchange, Recreation and Public Purposes lease/patent, and sale is prohibited. The policy of the Department of the Interior (DOI), supported by both the Fish and Wildlife Service and the National Park Service is consistent with BLM’s ‘no disposal’ policy.
The BLM’s ‘no disposal’ policy is based upon the following justifications:
The spirit of the LWCF Act, as authorized in 1965, is based on the protection and preservation of land and interest in land for present and future generations.
The DOI Budget Office unequivocally opposes the concept of disposal. Disposal activity would have a chilling affect on Administrative and Departmental funding support for future BLM LWCF project submissions.
... Disposal activity would risk future Congressional appropriations to both the subject project and to BLM’s national program.
Many LWCF-funded acquisitions are assisted by members of the nonprofit community. The BLM’s ‘trust’ relationship with these organizations would be jeopardized if the BLM entertained disposal of tracts they so diligently assisted with. Internal Revenue Service regulations may negatively impact BLM’s nonprofit partners in disposal situations. ....”
Immediately after the BLM issued this “Non Disposal” policy,
ODOT and the Federal Highway Administration, without any public notice,
removed “4(f)” designation for the West Eugene Wetlands, claiming
that these lands, which have had about $20 million spent on public acquisition
and restoration, no longer fit their definition of a “park.”
FHWA and ODOT made a number of excuses for this behind-the-scenes decision,
but the real reason is probably that 4(f) has managed to prevent a number
of stupid, expensive, destructive highway projects from coast-to-coast,
and is a major obstacle for WEP approval. However, 4(f) and LWCF are separate
legal issues, and the removal of 4(f) did not negate the separate legal
hurdles of seizing lands bought with LWCF money.
The BLM's 1999 "Non Disposal" policy for these lands makes it
clear that they are not to be used for other purposes (such as highway
right-of-way)
The BLM is on record (in 2000) stating that the ONLY way they would even
consider a "waiver" of this policy is if the WEP was fully funded
-- and the proposed TransPlan amendments that you are reviewing would
still be many tens of millions away from full funding of the WEP. Therefore,
no waiver is possible.
For the WEP to be built, the BLM must provide a "waiver" for
use of these lands bought with Land and Water Conservation Funds. The
BLM is on record that they could only consider a waiver if full funding
of the highway is available."
In April 1999 ODOT asked the Oregon Department of Justice to review its
appropriateness. DOJ reviewed relevant documents, concluded that the BLM-owned
lands do not qualify for protection under Section 4(f) and recommended
that ODOT ask FHWA to reexamine their earlier determination.”
(ODOT written statement for Eugene Planning Commission, 3/18/2002 session)
June 15, 1999 - ODOT writes a letter to FHWA, Oregon Division requesting reconsideration of 4(f) protection for West Eugene Wetlands
June 30, 1999 - FHWA concurs, grants ODOT’s request (but doesn’t tell the public)
October 1999 - WEP public information meeting at Willamette High School. I attended this, and do not recall seeing any mention that 4(f) protection had been removed from our public lands. This was the first time I ever saw a copy of the SDEIS, and noted that it was also a “Section 4(f)” evaluation. Section 4(f) has been one of my favorite environmental laws for many years, and if there had been any public presentation that FHWA and ODOT had removed its designation, I would not only have noticed this that evening, I would have made it a public issue the next day. If ODOT was interested in public knowledge and participation, it would have included an “errata” explaining the removal of 4(f) protection.
June 18, 2001 FHWA Oregon Division Administrator Dave Reilly attends West Eugene Charette. He did not tell the participants that his agency had removed 4(f) protection from the West Eugene Wetlands.
October 2001 – ODOT director Bruce Warner speaks at Eugene City Club / League of Women Voters forum promoting the highway, yet does not mention the removal of 4(f) protection (even after he was given an article of mine that mentioned this law).
January 2002 - Lane County sponsored a public forum titled “Rivers to Ridges” that showcased the region’s park planning process. Forum organizers did not respond to questions about the WEP’s threat to Eugene’s largest open space, but did show maps of “public lands” in West Eugene that did not distinguish between lands bought for habitat preservation and ODOT “highway reservations” bought for road construction. The handout for that meeting also listed Short Mountain landfill, just south of town, as “open space.” This designation gives new meaning to BRING Recycling’s sarcastic ad to “Ski Short Mountain” (a mound that grows 7 feet taller per year). In this upside-down, Alice-in-Wonderland approach to environmental protection, endangered natural habitats bought with local and federal tax dollars are not considered parklands but the County dump is. Since this is such a good idea, perhaps the County will also consider the sewage treatment center or the proposed jail near Junction City as “open space” while parklands that bureaucrats chose not to call “parks” get decimated by Wal-Marts and freeways.
February 2002 I learned that 4(f) had been removed from these public lands by talking on the phone with an ODOT bureaucrat charged with overseeing the Supplemental Final EIS – an official listed as being employed by the contractor (CH2M Hill) in the 1997 Supplemental Draft EIS. I asked him, incredulous, how the public could know about this decision. He replied that “you can find out about it in the Final EIS.”
This is not sufficient public involvement, given the fact that the last SDEIS is now stale and out of date, missing critical pieces of information.
NEPA’s implementing regulations at 40 CFR 1502.21 states “Incorporation by reference ... Material based on proprietary data which is not itself available for review and comment shall not be incorporated by reference.”