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Feasible and Prudent Alternatives Analysis on the “Hartman-Hammond Road Connector, MDEQ Wetland and Stream Crossing Permit Application” Application Dated May 15, 2003; MDEQ File No. 03-28-0035-P; Grand Traverse County, Michigan A. Introduction The following are comments on behalf of the law firm of Olson, Bzdok and Howard, in regards to the May 15, 2003, “Hartman-Hammond Road Connector, MDEQ Wetland and Stream Crossing Permit Application”; MDEQ File No. 03-28-0035-P; filed by the applicant, the Grand Traverse County Road Commission. This comment provides a legal analysis of the failure of the applicant to properly conduct their analysis of alternatives to the proposed project, the Hartman-Hammond Road Connector. This comment is intended as a companion to the more extensive comment filed by and on behalf of the Michigan Land Use Institute, et al, with the assistance of Olson, Bzdok and Howard, which outlines a much broader range of reasons why the permit should also be denied. B. Summary The proposed project cuts through an area of high quality natural and recreational resources, and the impacts of the project could be avoided altogether by pursuing other feasible and prudent alternatives. Therefore, the permit application should be denied by the Michigan Department of Environmental Quality (“the department”) pursuant to their authority to administer the Wetland Protection Act (“WPA”), MCL 324.30301 et seq, and the Inland Lakes and Streams ...

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Feasible and Prudent Alternatives Analysis on the “Hartman-Hammond Road Connector, MDEQ Wetland and Stream Crossing Permit Application”   Application Dated May 15, 2003; MDEQ File No. 03-28-0035-P; Grand Traverse County, Michigan  

    A. Introduction  The following are comments on behalf of the law firm of Olson, Bzdok and Howard, in regards to the May 15, 2003, “Hartman-Hammond Road Connector, MDEQ Wetland and Stream Crossing Permit Application”; MDEQ File No. 03-28-0035-P; filed by the applicant, the Grand Traverse County Road Commission.  This comment provides a legal analysis of the failure of the applicant to properly conduct their analysis of alternatives to the proposed project, the Hartman-Hammond Road Connector. This comment is intended as a companion to the more extensive comment filed by and on behalf of the Michigan Land Use Institute,et al, with the assistance of Olson, Bzdok and Howard, which outlines a much broader range of reasons why the permit should also be denied.     B. Summary    nal resources, and theThe proposed project cuts through an area of high quality natural and recreatio impacts of the project could be avoided altogether by pursuing other feasible and prudent alternatives. Therefore, the permit application should be denied by the Michigan Department of Environmental Quality (“the department”) pursuant to their authority to administer the Wetland Protection Act (“WPA”), MCL 324.30301et seq, and the Inland Lakes and Streams Act (“ILSA”), MCL 324.30101et seq.    Both the WPA and ILSA require the department to find that there are no feasible and prudent alternatives to the proposed project for a permit to be issued. Additionally, under the WPA it is the burden of the applicant to prove that there is no such alternatives exists.  In particular, the permit should be denied under both the WPA and ILSA because SmartRoads is a feasible and prudent alternative to the proposed Hartman-Hammond Road Connector (“Hartman-Hammond”). The SmartRoads alternative was erroneously dismissed by the Grand Traverse County Road Commission (“GTCRC”) because of so-called “4(f) impacts” that restoring the Cass Road Bridge allegedly would have upon the neighboring Grand Traverse Nature Education Reserve. A more thorough analysis of the history of the Bridge than that done by

 

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the applicant, however, reveals that it can be restored to its original two-lane width with no 4(f) impact. Federal agencies have already expressed concern regarding the GTCRC’s analysis of 4(f), and one, the US 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.  The permit should also be denied under the WPA and the ILSA because the GTCRC failed to properly conduct their analysis of feasible and prudent alternatives. The South Airport Road Widening alternative was approved by the applicant even though it failed to meet purpose and need. The GTCRC applied a criteria that is not part of the purpose and need nor one of the project goals and rejected the SmartRoads alternative. The GTCRC then did not apply that same criteria to its two approved alternatives, South Airport Road Widening and Hartman- Hammond, a test that both of which would have failed. The applicant’s use of arbitrary and incidental criteria also too narrowly defines the purpose of the project and has limited a complete analysis of feasible and prudent alternatives.   C.High Quality of the Natural and Recreational Resources Impacted by the Project    While the focus of this comment is on the feasible and prudent alternatives to the project, it is important to recognize the high value of the resources that would be impacted by building a new four lane bridge through the Boardman River valley. This is especially the case when the alternativ e involves rebuilding an already existing bridge that would require no new natural resources impacts.  The project calls for 26,600 cubic feet of fill in 4.35 acres of wetland. Much of the fill will destroy existing conifer swamps, or mixed conifer-hardwood swamps. These wetlands are notable for both their high quality and their rarity in the area. Dr. Barbara Madsen, a botanist and professor of wetland ecology at the University of Michigan, analyzed the proposal for Hartman-Hammond on behalf of the Michigan Land Use Institute,et al. Madsen Report, Attachment to the Comments on the “Hartman-Hammond Road Connector” submitted by the MLUI,et al Madsen explains in her report that Grand Traverse County has lost 94% of this type of wetland.. Dr. She also notes that the conifer and mixed conifer-hardwood swamps that would be lost are of very high quality: The Boardman River swamps are particularly important in the county for their size, quality, and association with the river. In this stretch of river there are approximately 75 acres of continuous swamp on the west side of the river (with  2

some smaller inclusions of other wetland types), and about 34 acres on the east side. The continuous area covered by an ecosystem type is essential to its ecological value, and fragmentation of habitats is a major cause of loss of biodiversity.Id, page 2.

   Dr. Madsen goes on to note that it is simply impossible to replace this type of wetland; once it is gone, it is gone forever. Finally Dr. Madsen explains that “the figure of 4.35 acres of wetland impact given in the application is only a starting point; the actual area of impact will be many times larger, and the impacts will continue to worsen for decades.”Id In other words, , page 11.the impact of the project will extend far beyond the footprint of the road and bridge.  Dr. David Hyndman, a professor of hydrogeology at Michigan State University, and Dr. Bryan Pijanowski, a professor of zoology at MSU, also analyzed the project in regards to its potential impacts on aquatic resources. Hyndman and Pijanowski Report, Attachment to the Comments on the “Hartman-Hammond Road Connector” submitted by the MLUI,et al. Hyndman and Pijanowski found that the project’s creation of a high traffic corridor will alter both the rate and character of development in areas of the Boardman valley, by attracting commercial and industrial uses. Because such uses require more pavement than residential ones, the report predicts that “a large degree of impervious cover is likely in this area.” Furthermore, because such impervious cover cannot filter runoff as effectively, Hyndman and Pijanowski concluded that water flow and water quality would likely be altered and harmed as a result of construction Hartman-Hammond.Id, page 1.  In addition to the direct impacts to the wetlands themselves, the project will also cut in half a valuable wildlife corridor and what is now a 1.5 mile long natural recreation area. The project will have negative impacts on fisheries, wildlife habitat, and public recreational resources in the area. All of these impacts are discussed in detail in the submission of interested parties.  The high quality of these resources sets the stage for the Department’s required inquiry into feasible and prudent alternatives fo r the project. Why should these resources be damaged or degraded if there is an alternative that accomplishes the same goal of improving east-west traffic flow while having less environmental impact? The obvious answer is that they should not. Not only does common sense dictate that the alternative with the least environmental impact be selected, the law requires it.      

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D.The standard of review for comparing feasible and prudent alternatives under the WPA and ILSA is a rigid least-harm standard.      A permit under the WPA shall not be approved unless the department determines that the issuance of a permit is in the public interest. MCL 324.30311(1). In determining whether the issuance of a permit is in the public interest, the department is to consider the availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the project. MCL 324.30311(2)(b). A permit shall not be issued unless the applicant shows either that (a) the proposed activity is primarily dependent upon being located in the wetland; or (b) a feasible and prudent alternative does not exist. MCL 324.30311(4).  Under the ILSA, the department shall not issue a permit if it finds that the structure or project permitted will adversely the public trust or riparian rights. MCL 30106. Also, the department shall not issue the ILSA permit unless it determines that a feasible and prudent alternative is not available. Michigan Administrative Code Rule 281.814.  The Michigan Court of Appeals has held that a permit under the WPA shall not be issued “unless the applicant shows either that the proposed activity is primarily dependent on being located in the wetland or that a feasible and prudent alternativedoes not exist.”Friends of the Crystal River   v Kuras Properties, 218 Mich.App. 457, 464; 554 N.W.2d 328, 332 (1996); emphasis original. This consideration of alternatives protects the environment by directing development away from sensitive, regulated areas and toward unregulated areas: A second environmental policy related to nondegradation prohibits development adversely affecting the environment if an alternative is available that does not have harmful environmental impacts. By compelling attention to development alternatives, the alternatives policy complements the nondegradation policy by shifting development to locations where it will not degrade environmental areas. Mandelker, AEnvironment and Equity: Regulatory Challenge York: (New McGraw Hill & Co).    Additionally, the 13 th  Circuit Court, which includes Grand Traverse County, has held that the department must use a “rigid least-harm standard” when judging between alternatives.Ex 1,Mattson v MDEQ, File No. 00- 5203-AA, December 5, 2000.Mattsonwas a case involving an application for a wetland fill permit to build a house and outbuildings on a waterfront property on Northport Bay. Various alternatives had been considered and rejected by the applicant, including construction on a different non-wetland parcel. In its decision, the court inMattson applied a balancing test taken from a road case, a decision regarding the federal department of transportation’s  4

selection of a bridge alignment,Concerned Citizens Alliance, Inc. v Department of Transportation, 176 F3d 686 (3d Cir 1999). The test fromConcerned Citizensthat the 13 th Circuit applied was that given “the Legislative mandate to protect and preserve wetlands, an analysis of the feasible and prudent alternatives requires arigid least-harm standard.”Mattson,id Theat 11; emphasis added.Mattsoncourt also provided further guidance as to how to perform this test, explaining that “the DEQ can and should total the harm caused by each feasible and prudent alternative and, if there is a feasible and prudent alternative that causes less harm to the wetlands than the proposed project, it should deny the permit.”I   d.  Given that its goal to protect aquatic resources mirrors that of the WPA’s, the application of the rigid least- harm standard is also appropriate for the consideration of alt ernatives as required under the ILSA. As is explained in detail below, there are feasible and prudent alternatives to the proposed project that have substantially less environmental impact and, therefore, the permit should be denied.   E. The permit should be denied under the Wetland Protection Act and the Inland Lakes and Streams Act because SmartRoads is a feasible and prudent alternative to Hartman-Hammond.    The SmartRoads alternative meets the purpose and need and is a feasible and prudent alternative to Hartman-Hammond. SmartRoads is also far superior to Hartman-Hammond as it requires no wetland fill and would have minimal or no impacts on aquatic resources. Applying the least-harm standard, the permit should be denied by the department under both the WPA and ILSA. MCL 324.30311(4); R 281.814.   i. purpose and need for the project is to replace the transportation service The provided by the Cass Road Bridge, and to improve east-west mobility in the Grand Traverse region.      The permit application does not contain a statement of the purpose of the project. Instead, it addresses the issue tangentially and states that “[a]n Environmental Impact Statement that addressed the purpose and need defined by the TC-TALUS study and evaluated alternative transportation solutions for the project including replacement of the Cass Road Bridge was completed in February 2001.” MDEQ Permit Application, Page 1. The Environmental Impact Statement completed in February 2001 by the GTCRC was, in fact, the Final Environmental Impact Statement (“FEIS”) for the Boardman River Crossing Mobility Study.    5

 The purpose and need as outlined in the FEIS for the Hartman-Hammond project has two parts. The first is to replace the transportation service formerly provided by the Cass Road Bridge, and the second is to improve east- west mobility in the Grand Traverse region.Ex 2,FEIS Purpose and Need, page 2-1. FEIS also identifies The specific goals for the project. These project goals are to “provide the basis for the development and evaluation of alternatives to address the project purpose and need.”Id, page 2-7.these goals is the most pertinent for The first of the discussion to follow and it defines what qualifies as improving east-west mobility for the purpose of evaluating alternatives:   Improve east-west circulation within the project are a.For an alternative to meet the purpose and need for this project, it must improve levels-of-service on the Boardman River crossings adjacent to the Cass Road Bridge [Beitner Road and South Airport Road], while improving or maintaining levels-of-service on the other crossings, as compared to 2015 No-Build conditions.    Id, page 2-7; emphasis added.   Thus is set out a clear standard by which to judge an alternative as far as whether it improves east-west mobility within the project area and, therefore, meets that second half of the project’s purpose and need. The standard established by the goal is that the alternative must improve the level of service (“LOS”) on Beitner and South Airport Roads, while at least maintaining the LOS on all of the other crossings.     ii.does not require a wetland dependant the purpose and need for the project  Meeting activity.       Meeting the purpose and need for the Ha rtman-Hammond project does not require a wetland dependant activity. MCL 324.30311(4). Under the WPA, the department shall consider a proposed activity as primarily dependent upon being located in the wetland only if the activity is the type that require s a location within the wetland and wetland conditions to fulfill its basic purpose, any activity that can be undertaken in a non-wetland location is not primarily dependent upon being located in the wetland. R 281.922a(5). Meeting the purpose and need for this project does notper serequire a wetland dependant activity; there is nothing inherently wetland- dependant about restoring the Cass Road Bridge or improving east-west mobility. Additionally, the GTCRC has not

 

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provided any evidence or arguments in its application to demonstrate the project requires a wetland dependant activity.  What is more, the existence of alternatives to the chosen Hartman-Hammond alternative that require no wetland fill demonstrates this fact as well. The SmartRoads alternative, discussed below, requires no such fill. The South Airport Road Widening alternative that the GTCRC examined in its FEIS requires almost no wetland fill. As meeting the purpose and need for the project is not primarily dependent upon a wetland locatio n, the GTCRC must then demonstrate that there are no feasible and prudent alternatives to Hartman-Hammond. R 281.922a(7). This they have not done, however, and, indeed, cannot do as feasible and prudent alternatives exist.   iii.     because it meets and prudent alternative to Hartman-Hammond eSmartRoads is a feasibl the purpose and need for the project, requires no use of wetland fill, and would have minimal or no impact on aquatic resources.     As a part of the FEIS and its predecessors, the Draft Environme ntal Impact Statement (“DEIS”) and the Environmental Assessment (“EA”), the GTCRC considered and rejected various other alternatives before selecting Hartman-Hammond as their “preferred alternative.” One of the alternatives erroneously rejected by the applicant is the so-called “SmartRoads” alternative. SmartRoads is, in fact, both a feasible and prudent alternative as it meets the purpose and need for the project. And, unlike the GTCRC’s Hartman-Hammond alternative, SmartRoads would have minimal or no impact on aquatic resources as it relies primarily on the widening and upgrading of existing roads, and would require no use of wetland fill.   a. requires no use of wetland fill and would have SmartRoads minimal or no impact on aquatic resources.      SmartRoads was the product of a grassroots effort coordinated by the Michigan Land Use Institute and the Coalition for Sensible Growth to develop and promote a less environmentally destructive alternative to Hartman- Hammond that meets the purpose and need for the project.Ex 3, The coreSmartRoads: Grand Traverse Region. elements of SmartRoads are to rehabilitate the Cass Road Bridge to its former two lane width, widen Beitner and Keystone Roads to a four lane boulevard, extend Hammond Road to Keystone Road, and eliminate the continuous left turn lane on South Airport Road between Veterans Drive and Garfield Road.Id. Keystone and Beitner Roads  7

run in upland areas and can be widened to four lanes with no use of wetland fill and with minimal or no impact on aquatic resources. Cass Road bridge can be restored to two lane service without any use of wetland fill and with minimal or no impact on aquatic resources. Hammond Road can be extended to Keystone Road with no use of wetland fill and with minimal or no imp act on aquatic resources. In sum, SmartRoads would require no use of wetland fill and would have minimal or no impact on aquatic resources.     b.SmartRoads meets the purpose and need of the project.    The SmartRoads alternative meets the first half of the purpose and need for the project as it would restore the Cass Road Bridge to two lanes of service. SmartRoads meets the second half of the purpose and need as well, as the alternative would substantially improve east-west mobility in the Grand Traverse region. This is confirmed by the results of GTCRC’s traffic modeling: Existing and Projected Average Annual Daily Traffic on the Boardman River Crossings         2015  SmartRoads River Crossing  No-Build w/Cass Road Bridge  Grandvi ew Parkway     38000(E )   37000(E ) Eighth Street    25500(E)  23000(D) South Airport Road    46500(F)  39000(E)   Cass Road Bridge  —

 

 

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   10500(E)  Beitner Road  9500(E)  11900(B)  

 Ex 4,DEIS, Table 3.2-1.   Note, SmartRoads would improve the levels of service at the two crossings adjacent to the Cass Road Bridge, which are South Airport and Beitner Roads. The alternative takes 7,500 cars off of South Airport Road and it improves from an LOS F under 2015 No-Build to an LOS E. Beitner improves as well and jumps from an LOS E to an LOS B. Meanwhile, the Eighth Street crossing is improved from an LOS E to a D, and the LOS on Grandview Parkway is maintained. (Cass Road bridge was projected to be closed under the 2015 No -Build so there is no comparison for it.) Recall from above what qualifies as improving east-west mobility: For an alternative to meet the purpose and need for this project, it must improve levels -of-service on the Boardman River crossings adjacent to the Cass Road Bridge [Beitner Road and South Airport Road], while improving or maintaining levels -of-service on the other crossings, as compared to 2015 No -Build conditions.    Ex 2,FEIS Purpose and Need, page 2-7; emphasis added.   SmartRoads meets both parts of this goal, as levels -of-service on the adjacent crossings would improve, and the rest are either improved or maintained. Combined, then, with the fact that it would restore service to the Cass Road bridge, SmartRoads meets the purpose and need for the project.       c. SmartRoads is a feasible and prudent alternative to Hartman- Hammond.      An alternative is feasible and prudent under the WPA if both of the following provisions apply: (a) the alternative is available and capable of being done after taking into consideration cost, existing technology, and logistics; and (b) the alternative would have less adverse impact on aquatic resources. R 281.922a(6). SmartRoads meets both of these tests. Sma rtRoads meets the purpose and need of the project and is capable of being done. Estimates indicate that SmartRoads would, in fact, cost some $30M less than Hartman-Hammond to construct, as SmartRoads relies on the widening and improvement of existing roads, and would not require acquisition of additional right of way. Indeed, a study commissioned by the Michigan Department of Transportation in 1996  9

indicated that restoring two lane service to the Cass Road bridge is not only feasible, but would also cost less than $2M, a fraction of the some $16M the GTCRC plans to spend for construction of the Hartman-Hammond bridge. Ex 5,DeLeuw, Cather Report.  Not only is SmartRoads far less expensive than Hartman-Hammond, but it also requires no use of wetland fill and would, therefore, have far less impact on wetlands and on aquatic resources than the Hartman-Hammond. The GTCRC has proposed a mitigation plan as part of the application for the project. MDEQ Permit Application, page 11. The department, however, is only allowed to consider such a plan after it has determined,inter alia, that no feasible and prudent alternative to avoid wetland impacts exists. R 281.925(2). Even if the mitigation plan would succeed, which it will not, the department cannot consider it in making any comparison between SmartRoads and Hartman-Hammond. Therefore, as SmartRoads meets the purpose and need and would have far less impact on aquatic resources than Hartman-Hammond it is a feasible and prudent alternative to the project. R 281.922a(6).The permit should, then, under the least-harm standard established inMattson,supra, be denied under both the WPA and the ILSA. MCL 324.30311(4);   R 281.814.       iv.    SmartRoads was first considered, and rejected, by the GTCRC in their DEIS for the project. The reason given for the rejection was that, although “some improvement in level of service is projected on the Boardman River crossings[,] the 4(f) impacts associated with the rehabilitation of the Cass Road Bridge will preclude the selection of the alternative if other prudent and feasible alternatives exist.”Ex 6, DEIS Alternatives, page 3-22. here 4(f)” “ refers to Section 4(f) of the 1966 Department of Transportation Act (49 USC § 1653(f)), which specifies that certain public properties, including parklands, may not be used for transportation projects funded with federal monies unless there is no feasible and prudent alternative to the use of such lands. The Grand Traverse Nature Education Reserve (“GTNER”), a public park owned by Grand Traverse County, borders the Cass Road bridge and the GTCRC alleged

 

 The GTCRC dismissed SmartRoads alternative for its supposed 4(f) impacts in error, as the GTCRC owns more than sufficient right of way to restore the Cass Road Bridge without impacting the neighboring Grand Traverse Nature Education Reserve.  

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in the DEIS that rehabilitating the bridge to its former two lanes, as envisioned as part of SmartRoads, would impact property from the GTNER.Id.  Restoration of the Cass Road Bridge as envisioned in SmartRoads would, in fact, have no 4(f) impact because the GTCRC owns at least 66 feet of right of way at the bridge. For most of its life a two lane structure, the Cass Road bridge has been allowed by the applicant to degrade over the years to the point that now it is only open for one lane of travel. The GTCRC claims that the Cass Road bridge cannot be restored because that would require encroaching on the surrounding Grand Traverse Nature Education Reserve - a Section 4(f) property. The evidence that the Road Commission has presented to support this claim, however, supports just the opposite conclusion. A more thorough review of the history of the Cass Road Bridge based on the information the GTCRC submitted in the FEIS, additional evidence from the public record, and a first-hand account of the history of the bridge, reveals that the Road Commission owns more than sufficient right-of-way at the bridge to reconstruct it to its former two lanes. The GTCRC, in fact, owns at least 66 feet of right of way at the Cass Road bridge where it passes through the GTNER, and reconstruction of the bridge as called for in the SmartRoads alternative would have no impact on this 4(f) property. The rejection of SmartRoads on 4(f) grounds by the GTCRC was, therefore, in error.   a.The old Cass Road Bridge and Boardman Dam.    Historically there have been two Cass Road bridges and two Boardman dams, the first pair built in 1894 and the second in or around 1931, which still stand today. The old Cass Road Bridge built in 1894 was the part of the road that passed over the original Boardman Dam, built at that same time. Cass Road appears crossing the river on the 1895 Garfield Township plat map, and the road and also the power house for the original Boardman Dam appear on the1908 plat map.Ex 7,Garfield Plat Maps. the alignment of the road on the 1908 map: beginning Note at the eastern terminus on Keystone Road at a point south of the section line; traveling west and then curving slightly to the north and then back to the south; crossing the river at the old Boardman Dam and running northwesterly; and then making a turn, again south of the section line, due north and heading for Traverse City. Notice that this entire portion of Cass Road is shown running south of the section line, the significance of which will be explained below.

 

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