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Pulling a 4F?

Road commission’s use of federal law to defend Boardman project may backfire

September 24, 2003 | By Kelly Thayer
Great Lakes Bulletin News Service

  The Grand Traverse Road Commission, which wants to build a bridge and highway through the Boardman River valley, may have improperly used a federal law to avoid considering alternative routes that would protect the pristine area.

Facing objections from three government agencies over its plans to build a highway and bridge through the Boardman River valley south of Traverse City, the Grand Traverse County Road Commission has reversed course and now claims it can make design changes that it previously rejected as too costly and time consuming. But even as the road commission touts its newfound flexibility, it is running into two more barriers.

First, the Michigan Department of Natural Resources is formally questioning the road commission’s assertion that there is no feasible alternative to its $40 million proposal, which would bring noise, air pollution, and huge amounts of wetlands-burying landfill to the now peaceful valley. In a closely related development, the Michigan Department of Environmental Quality is now examining the road commission’s possible improper citing of a provision of the federal transportation law, known as Section 4(f).

Over the past two months the DNR, the U.S. Fish and Wildlife Service, and the U.S. Environmental Protection Agency have weighed in against the project in letters to the DEQ, which must decide whether to allow the road commission to cover 4.3 acres of wetland with huge amounts of landfill that are necessary to build the project. Each objected to the amount of damage the project would do to the Boardman River, its rare type of wetlands, the headwaters of Jack’s Creek — an exceptional trout stream — and a unique and thriving wildlife corridor.

DNR, DEQ Dig a Little Deeper
But the DNR’s August 27, 2003 letter to the DEQ goes one step further: It asserts that the road commission disobeyed the Michigan Wetland Act by not giving adequate consideration to possible alternative routes. The letter urges more thorough consideration of such alternatives, many of which are at the core of a study entitled Smart Roads: Grand Traverse Region, which would completely avoid new road construction in the valley. That section of the DNR’s letter is now raising concerns inside of the DEQ that the road commission may have inappropriately applied Section 4(f) in order to discount such alternatives when it asked for a permit from the agency to fill in wetlands to build the bridge.

Last week John Arevalo, the DEQ’s northern district representative in the Gaylord office, said he was reluctant to comment on his agency’s ongoing review of the road commission’s permit request, pending a meeting that, at the request of the road commission, is scheduled for next week in Lansing with the DEQ, DNR, U.S. EPA, and U.S. Fish & Wildlife Service. But he confirmed that the availability of alternatives to the road commission’s road-building proposal is “on the table” and “under consideration.”

Perhaps most ominously for the road commission’s proposal, Mr. Arevalo also acknowledged that part of the DEQ’s review of alternatives includes determining whether, earlier in the long approval process, the road commission improperly used Section 4(f), which protects public parkland, as its rationale for rejecting those alternatives. Many citizen groups and organizations, including the Michigan Land Use Institute, have long said that the Smart Roads proposal was the best way to both alleviate chronic traffic jams directly south of Traverse City and protect the Boardman valley.

An Airborne Right of Way?
Section 4(f) of the U.S. Department of Transportation Act safeguards any publicly owned “park, recreational area, or wildlife and waterfowl refuge of national, state, or local significance” from new road construction unless there is no “feasible and prudent alternative” that would achieve the goals of the project. The law seeks to prevent, whenever possible, using public money to ruin a park that the public previously had paid to protect. 

Since formally launching its road-and-bridge study in 1996, the road commission has asserted that the Smart Roads proposal violated Section 4(f) because it would restore the county-owned Cass Road bridge to two lanes and would thus allegedly require taking land from the surrounding, county-owned Grand Traverse Nature Education Reserve. The road commission again claimed this in its May 15, 2003, application to the DEQ to fill wetlands.

“Alternatives associated with widening Cass Road Bridge,” the road commission wrote to the DEQ, “were dismissed in the Environmental Impact Statement as not meeting purpose and need due to Section 4(f) and environmental impacts. Additionally, traffic levels on the other east-west crossings would still increase to unacceptable levels.”

The road commission agrees that it owns a standard, 66-foot-wide right of way for the existing road that leads to the Cass bridge, but claims it only owns 20 feet of right of way for the bridge itself — its current width. Thus, the commission claims, widening the bridge to restore it to two lanes and make the lanes wider to meet modern standards would infringe upon the parkland — in the air — as the bridge spans the Boardman River.

Legal Research and a Long Memory
But this spring the Institute and its partners presented the DEQ with legal research, an affidavit by a local resident, and a sworn deposition by the road commission’s own manager that refute this position.

The legal analysis, by the Traverse City law firm of Olson, Bzdok and Howard, found no documentation to support the claim that the road commission lacks the right to 66 feet of airborne right of way for the bridge and also revealed several errors in the road commission’s claim.

“A more thorough analysis of the history of the Cass Road Bridge than that done by the road commission reveals that it can be restored to its original two-lane width with no 4(f) impact,” attorney Scott Howard found. “Federal agencies have already expressed concern regarding the road commission’s analysis of 4(f), and one, the U.S. Fish and Wildlife Service, has indicated that, should restoring the Cass Road Bridge indeed have no 4(f) impact, they would oppose the construction of a new bridge, such as Hartman-Hammond, across the Boardman River.”

In addition, an affidavit by a longtime area resident, Gerald Wyatt, attests to first-hand knowledge of the bridge’s existence in its present location when the state enacted a law in 1931 that had the effect of granting the road commission 66 feet of right of way for the road and bridge.

But it is the deposition of the person who has led the push for the new bridge and highway across the Boardman, road commission Manager Mike Dillenbeck, that might be the most conclusive.

Hoisted by His Own Pitard
In September 2002, under questioning for a lawsuit aimed at stopping the project, Mr. Dillenbeck was asked about the validity of rejecting Smart Roads on Section 4(f) grounds. In part, Mr Dillenbeck replied that he “went back and looked at it and it was decided that that wasn’t an accurate statement…” He said that traffic concerns were the only real reason for discarding Smart Roads.

The court case that triggered Mr. Dillenbeck’s testimony — filed by the Institute, the Northern Michigan Environmental Action Council, the Coalition for Sensible Growth, the Sierra Club, and All the Way to the Bay — was dismissed as premature until the road commission receives its wetland-filling permit from the DEQ. But if the case is eventually revived, the Institute will have another report to point to that confronts the road commission’s traffic concerns. The Institute hired a transportation expert from Chicago who found that the road commission did not properly measure Smart Roads’ ability to ease congestion, nor accurately compare Smart Roads to its own plan.

Mr. Dillenbeck was ill last week and unavailable for comment. The DEQ must decide by October 15 whether to issue or deny the permit.

Meanwhile, the comments of an engineer from the firm the county hired to design the project indicate that the county remains uninterested in considering any alternate routes, even though it is legally required to do so. Instead, a redesign of the project—which the road commission ruled out in December because it claimed it would delay project financing by two to ten years — is now on tap.

“We’re backing up and looking at design options,” said Joe Elliott, an engineer at Gourdie-Fraser, a consulting firm in Traverse City. “As far as alternatives, we thought we were through with that.”

Kelly Thayer is a journalist and manages the Michigan Land Use Institute's transportation project. Reach him at kelly@mlui.org.

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