Andrea C. Ferster
1100 17th St., NW 10th Floor
Washington, DC 20036
(202)974-5142

May 21, 1999

George K Frick, Jr.
Division Administrator
Federal Highway Administration
Maryland Division Office
The Rotunda, Suite 220
711 West 40^th Street
Baltimore, MD 21211

Neil J. Pedersen, Director
Office of Planning and Preliminary Engineering
State Highway Administration
707 North Calvert Street, Mailstop C-301
Baltimore, MD 21202

Re: MD 32 Planning Study - Draft Environmental Impact Statement

Dear Messrs. Frick and Pedersen:

These comments are submitted by the Baltimore Regional Partnership in response to the Draft Environmental Impact Statement (DEIS) for improvements to MD Route 32 from Md. Route 108 to I-70, in Howard County, Maryland. The Baltimore Regional Partnership (Partners) is a coalition of environmental and community organizations who are concerned about the planning for transportation improvements in the Baltimore Region. Its membership includes the Citizens Planning and Housing Association, the Baltimore Urban League, 1000 Friends of Maryland, the Environmental Defense Fund, and Chesapeake Bay Foundation.

The DEIS purports to evaluate the impacts of various options for addressing the purported deficiencies of a 9-mile segment of Md Route 32 from Md. Route 108 to I-70, pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C). For the reasons discussed below, the Baltimore Regional Partnership asserts that the DEIS is a legally deficient document that fails to satisfy the NEPA obligations of the lead and cooperating agencies to consider an adequate range of alternatives to meet the area’s transportation needs, or to fully evaluate the impacts of the "build" alternatives that were considered in the document. Accordingly, a new supplemental draft environmental impact statement should be prepared and circulated for public review and comment.

The segment of MD 32 that is the subject of the DEIS is presently a two-lane highway, part of which is controlled access and part of which is uncontrolled access, traversing a predominantly rural area in western Howard County. As the Congestion Management System (CMS) analysis for the larger Corridor #24 notes, western Howard County consists of a mosaic of farmland, woodlands, and large lot (3 acre) developments designated in the County’s land use plans as an area slated to remain in agricultural/open space use.

The need for the project is based on an assumption that added capacity is necessary to address projected growth in land development and traffic volume in the study area. Based on this projected growth, the DEIS projects a Level of Service (LOS) of "F" at eight of the ten intersections in 2020 if no highway improvements, other than modest "TSM" measures, are implemented. DEIS, at Table I-1. The proposed dualization of MD 32, while inducing thousands of additional vehicles per day to use the highway, is projected to improve the Level of Service to "D." DEIS, at Figure IV-1. However, the traffic justification for the project suffers from a number of flaws, including lack of sufficient data that would allow for any meaningful analysis of the need for this project. In fact, a number of the assumptions about the need for the project appear to be highly questionable.

First, the DEIS projects that the average daily traffic (ADT) volume that will use the highway will more than double in the next 20 years, if no improvements other than modest intersection and signal improvements are made. DEIS, at Figure IV-1. While the DEIS does not provide data on the rate of traffic growth over time, it does provide information about anticipated rate of development for the study area and identifies this as an important catalyst to traffic growth. The DEIS anticipates a build out of 7,567 dwelling units in by 2020 in the study area, based on an assumption that the rate of development will continue at the same rate it increased between 1991 and 1997. DEIS, at IV-67.

However, it is not valid to assume that traffic projections will increase in the next 20 years at the same rate of increase between 1991 and 1997, absent a major improvement to the capacity such as that contemplated by the dualization of MD 32. Between 1991 and 1997, major capacity to MD 32 was consistently added, which in turn influenced the rate of growth during that period. Most recently, a significant improvement to MD 32 was constructed from Pindell School Road to MD 108 in 1996. Once this segment was opened it experienced a significant increase in traffic volume and truck traffic. In order to anticipate the same pace over the last decade of development and traffic volume increases in the MD 32 study area, one would have to assume the same level of incremental increased capacity. By contrast, average daily traffic projections and development under a true "no build" scenario, i.e., one that did not assume the same pace of highway capacity expansion, would in all likelihood show a much slower rate of increase.

Thus, this projected future development is likely to be induced by the additional access afforded a major increase in MD 32 highway capacity, which will create development pressures that override the present growth controls. See discussion at p. 7, below. The DEIS nonetheless relied on this highway-induced development to project a doubling of traffic volumes in 2020 in calculated the so-called "no build" baseline scenario. This is not permissible. Highway agencies may not rely on development induced by the existence of the new road to develop traffic projects that, themselves, are used justify the need for new roadway capacity. As one recent court decision explained, "[h]ighways create demand for travel and expansion by their very existence." Sierra Club, Illinois Chapter v. U.S. Dep’t of Transp., 962 F. Supp. 1037, 1043 (N.D. Ill. 1997) (invalidating EIS where need for highway was based on traffic projections that assumed highway would be built)

In addition, as the Baltimore Regional Partnership’s transportation expert points out, the methodology used by the SHA for making these traffic projections is flawed in several respects. See Gerald Neily, "Transportation Analysis of MD 32 DEIS" (May 12, 1999) (attached hereto as Exhibit 1). First, the SHA arbitrarily assumes that a disproportionate number of trips within an extremely large area will use MD 32. In fact, according to 1988 Long Range Plan travel projections developed by the Baltimore Metropolitan Council (BMC) , a much greater share of these trips are assumed to utilize the parallel MD 100.  Due to a higher proportion of traffic assigned to MD 100 the BMC’s travel projections shows no congestion on MD 32 even under a "no build" scenario through for 2020. This discrepancy calls into question the reliability of SHA’s traffic projections. In addition, the SHA’s 2020 peak hour traffic projections are too high a percentage of the daily traffic. According to the Baltimore Regional Partnership’s transportation expert, more of the daily traffic is likely to travel in non-peak hours. When these adjustments are made, peak hour traffic projections under a "no build" scenario are likely to be much lower than projected by the DEIS.

The DEIS also assumes that added capacity is needed to improve the projected Level of Service (LOS) at the ten roadways intersecting with MD 32 (several of which are signalized intersections) which are expected to operate at a LOS of "F" in year 2020 based on projected peak hour volumes in that year. However, the projected peak hour volumes are not provided in the DEIS or as a technical appendix; instead Partners was forced to obtain this information from the SHA through independent means. Using SHA’s own traffic projections for the year 2020 "no build" scenario at the intersection of MD 32 and MD 144, the critical lane volume is 1,110 and 1,253 vehicles in the respective a.m. and p.m. peak hours, which is in the range of LOS "C" or better. The SHA’s own analysis confirms that this intersection will function at a LOS of "C." A grade separated interchange is therefore not needed to increase capacity at the intersection of MD 144.

On the two lane portion of MD 32 south of MD 144, however, turning movement conflicts at the signalized intersections do limit capacity. This can be addressed through modest intersection improvements and access control. By widening the roadway to four lanes and also providing the full grade separation and access control of an expressway, MD 32 is proposed to be upgraded far beyond the level that is needed to accommodate the future "no build" traffic projections. A much more modest increase in capacity is warranted.

Nor can the need to add four-lane capacity to this segment of MD 32 be deduced by the "accident history" supplied in the DEIS. No data are supplied on whether and how the proposed transportation improvements will reduce traffic accidents, or whether improvements short of adding additional capacity would reduce accidents. In fact, accidents rates could be further reduced by undertaking a number of improvements that do not add capacity, many of which have already been identified in the SHA’s Safety Action Plan for MD 32 from MD 108 to I-70. For example, head-on collisions can be reduced by construction of a median, and intersection improvements would reduce angle and rear end accidents. Widening MD 32 would not, of course, affect or reduce fixed object and animal-related accidents, which comprise a large percentage of the accidents on MD 32. The DEIS should evaluate the effectiveness of the measures identified in the Safety Action Plan and by the Baltimore Regional Partnership (see exhibit 1), and determine whether these measures would address the safety issues identified in the DEIS as creating a need for improvements to MD 32.

In general, the DEIS’s reliance on conclusory statements about "level of service" or "accident history" without supporting data, including peak hour traffic volumes, showing the need for capacity enhancements to address these generalized concerns runs directly contrary to Federal Highway Administration (FHWA) guidance on developing "purpose and need" statements for highway projects. This guidance clearly states: "It is not sufficient to state that the project is needed to provide increased capacity and improve safety. Supporting data must be provided." Memorandum from FHWA Acting Director, Office of Environmental Policy re "‘Purpose and Need’ in Environmental Documents," at 4 (Sept. 18, 1990) (emphasis added).

Given the lack of specificity with respect to the traffic and accident justifications for the project, what clearly emerges as the primary statement of project need is simply the assumption that widening this section of MD 32 will "provide continuity" with the remainder of the 40-mile Patuxent Freeway between Annapolis and I-70. However, there is no evidence that the Patuxent Freeway lacks "continuity" simply because the number of lanes varies to accommodate varying traffic volumes. Indeed, the concept that the lack of uniform number of lanes in a highway system regardless of traffic volume represents a flaw or deficiency appears to be wholly fabricated. The FHWA’s own guidance material, which identifies the elements that may assist in explaining a project’s purpose and need (e.g., capacity, safety, system linkage, economic development, etc.) fails to identify "continuity" in number of lanes as a possible element of project need. Providing a uniform number of lanes is a concept that is utterly lacking in support in any professional standard or guidance for evaluating highway capacity or identifying project need. Id., Appendix; FHWA Technical Advisory T 6640.8A - "Guidance for Preparing and Processing Environmental and Section 4(f) Documents, at 14.

As the FHWA’s own guidance acknowledges, "the project purpose and needs drives the process for alternatives consideration, in-depth analysis, and ultimate selection." Memorandum from FHWA Acting Director, Office of Environmental Policy re "‘Purpose and Need’ in Environmental Documents," at 1 (Sept. 18, 1990). As noted above, the DEIS provides no basis for assuming that adding additional lanes to the entire length of this segment of MD 32 is the only capacity or roadway improvement that will satisfy the project need. To the contrary, the need presented for this project -- improving the Level of Service at intersections and reducing accident rates on MD 32 -- can be corrected by eliminating left turning movements and/or providing grade-separation at selected intersections in lieu of traffic signals.

Nonetheless, the DEIS rejects all improvement alternatives other than two "build" alternatives involving dualization of MD 32 and associated intersection improvements. Relying on a Congestion Management System (CMS) study for a much larger area known as Corridor #24 from Mount Airy to Annapolis, the DEIS concludes that "The TDM and TSM measures, by themselves, are insufficient in providing congestion relief and noticeable mobility improvement in the corridor." DEIS, at II-1.

However, the CMS analysis of Corridor #24 does not provide an adequate basis for eliminating all improvements alternatives short of additional through roadway capacity to MD 32. The CMS’s analysis of future travel demand and congestion in the MD 32 corridor in the CMS Report for Corridor #24 is so narrow that MD 100, a parallel facility five miles apart from MD 32 is not part of consideration of MD 32 travel demand. As noted above, it is likely that much of the traffic assigned to MD 32 could just as easily be assigned to MD 100. In addition, growth management, economic, administrative and non-transportation measures such as land use planning, transportation demand management, and transit alternatives are given little substantive analysis. The CMS analysis and recommendations provide inadequate consideration of alternatives or fail to explain discrepancies between its traffic congestion forecasts and BMC's model. Thus, the CMS study cannot be relied on for eliminating road improvement alternatives short of full dualization of MD 32 from evaluation in the DEIS.

Moreover, the DEIS considered only a very limited number of highway improvements under the rubric of Transportation Systems Management (TSM). As the FHWA’s technical guidance points out, TSM "is usually relevant only for major projects proposed in urbanized areas over 200,000 population." FHWA Technical Advisory T 6640.8A - "Guidance for Preparing and Processing Environmental and Section 4(f) Documents, at 15. As the DEIS points out, the study area population is presently only 5,170. DEIS, Table III-2. Instead, as noted above, capacity and LOS can be acceptably improved by making targeted improvements, rather than the full dualization of MD 32. The DEIS should therefore consider an alternative that reduces roadway congestion and improves safety by eliminating signalized intersections, improving access control and creating grade separations, rather than widening the roadway to a four lane expressway.

More importantly, full dualization of MD 32 generates so much additional traffic that the resulting increase in surplus capacity is marginal. The DEIS concedes that attraction of existing traffic to MD 32 from the MD 100 corridor and other locations will occur, but does not recognize the additional induced traffic that would result from such a major increase in the capacity of MD 32. This induced traffic is fully consistent with a growing body of research finding that additional highway capacity induces new trips, long trips, and diversions of transit, and ultimately does little to reduce congestion. See Surface Transportation Policy Project, "An Analysis of the Relationship Between Highway Expansion and Congestion in Metropolitan Areas" (Nov, 1998). An alternative that focuses solely on modest access control and safety improvements, by contrast, would improve the Level of Service without inducing additional traffic or stimulating secondary development that is incompatible with the rural, character of the study area and with Howard County’s General Plan. As noted above, the safety issues identified in the purpose and need statement can be readily addressed by making targeted improvements such as adding medians to the existing highway.

It is also important to note that an alternative calling for a set of well designed but modest roadway improvements would, in all likelihood, constitute a "minor capital project" or otherwise be permitted by Maryland’s new Smart Growth Law. By contrast, the dualization of MD 32 is a "major capital project," as defined by that law. Maryland Code, Transportation Article, § 2-103.1(a)(4). Maryland’s Smart Growth Law bars the state from funding major capital projects except in Priority Funding Areas. Maryland Code, State Finance & Procurement Article, §5-7B-04(A). The study area is not designated as a Priority Funding Area, nor has Howard County designated the study area as a "locally designated growth area." Id. §5-7B-02. To the contrary, as the DEIS concedes, the southern portion of the study area is designated by the 1990 Howard County General Plan as a greenbelt connecting parks, protected land areas, and stream valley corridors, and most of the land is zoned for Rural Residential. DEIS, at III-11. Dualization of MD 32 does not present the type of "extraordinary circumstances" that would permit the state to ignore this clear directive, nor would this admittedly capacity enhancing project otherwise qualify for an exemption from the Board of Public Works. Yet the DEIS gives only passing reference to this important law, and fails to address the project’s consistency (or lack thereof) with the objectives and mandates of this law. DEIS, at III-13.

Accordingly, any deficiencies with the MD 32 can be corrected by making intersection and other improvements to the roadway rather than converting the highway into a major freeway . By contrast, the excessive capacity of the dualization proposal will attract thousands of additional motor vehicles and stimulate additional new development to the area that is incompatible with the Howard County’s land use plans and the state’s growth management objectives. This road improvement alternatives should therefore be evaluated in a new draft EIS, so that the public and the governmental decision makers can make an informed decision about the effectiveness and environmental consequences of this reasonable alternative.

III. The DEIS Fails to Adequately Evaluate the Project’s Environmental Impacts.

The DEIS’s evaluation of environmental impacts is fundamentally flawed for the following reasons: (1) the DEIS fails to acknowledge or evaluate the full range of MD 32's impacts from highway-induced development; (2) the DEIS improperly defers the required detailed study of numerous environmental impacts to a later stage of project planning; and (3) The DEIS’s assessment of the project’s impacts on water resources, air quality, or historic properties lacks sufficient detail or scientific basis. As a result, it is not possible to have any knowledge of what the likely direct, let alone secondary and cumulative, effects of the proposed actions will be. Since insufficient information was provided on the environmental impacts of the proposed actions, it is not possible to determine if those impacts can be further avoided, reduced or mitigated; or if they are outweighed by the project benefits. These concerns are described in more detail below, and in the comments from Chesapeake Bay Foundation scientists Jennifer Aoisa and Kimberly Coble, attached hereto as Exhibit 2, and in the discussion below.

A. The DEIS Fails to Acknowledge or Evaluate The Full Range of MD 32's Impacts From Highway-Induced Development.

One of the most glaring deficiencies in the DEIS is its failure to acknowledge the extent to which the dualization of MD 32 will induce secondary and cumulative impacts that conflict with state and local land use policies. As Maryland’s Growth Management Law clearly recognizes, a highway expansion project that adds additional through roadway capacity to MD 32 is likely to induce growth in this rural and environmentally sensitive area in western Howard County, as well as in adjacent areas of Carroll County. As noted above, the substantial state funding of the dualization alternative is squarely prohibited by Maryland’s Growth Management Law.

The DEIS acknowledges that the immediate project area is likely experience substantial development and associated environmental impacts, projecting the development of 50 percent of all forested lands, 80 percent of agricultural land, and all of the 865 acres of palustsrine wetlands, for a total of 17,629 acres. DEIS, Table IV-20. The DEIS further concedes that "[i]n general, an improved transportation facility may result in future zoning change requests to allow higher density development in areas not currently zoned for such development." DEIS, at IV-62.. However, the DEIS then makes the completely contradictory statement that "[t]his potential for development is not dependent upon the roadway improvements proposed for MD 32." DEIS, at IV-63.

The DEIS’s analysis of these secondary and cumulative impacts is severely flawed, for the following reasons: (1) the DEIS fails to acknowledge the role of MD 32 in inducing secondary development; (2) DEIS fails to define an sufficiently large geographic area -- particularly, Carroll County -- where secondary and cumulative impacts are likely to occur; (3) the DEIS fails to identify the extent or location of likely direct and secondary effects with any degree of specificity, and improperly assumes that these likely effects will be mitigated; (3) the DEIS omits a large range of potential secondary effects from analysis, including secondary effects associated with traffic and likely land use effects.

1. There is No Support for the DEIS’s Claim that the Improvements to MD 32 Will Not Influence or Induce Development.

The DEIS states that "the amount of development anticipated to occur within the Secondary and Cumulative Effects Area (SCEA) boundary is not influenced by the MD 32 project, therefore, secondary effects were not anticipated to occur." DEIS, at IV-62. The DEIS contends that fully access-controlled interchanges will help limit development adjacent to MD 32. Id. at IV-7. This assertion is directly contrary to a growing body of literature See, e.g. Hartgen, et al, "Growth at Rural Interchange: What, Where, Why." 1359 Transportation Research Record 141 (1992). While development of adjacent properties might not have direct access to MD 32, development of land nearby would be encouraged as travel times would be reduced by the interchanges. As one recent study found, "[c]apacity improvements, additional interchanges, and construction in new locations generally have a greater potential for environmental effects than an upgrade of existing facilities." York, Marie, AICP, "Dealing with Secondary Environmental Impacts of Transportation," Vol. 51 Land Use Law 3, 7 (March, 1999).

The DEIS cites the number of residential permits issued from 1991 to 1997 in the SCEA (covering portions of Howard County only) as evidence that the average 257 with a modest standard deviation demonstrates that changes in highway capacity have not and will not effect this area. First, not examining land development trends in southern Carroll County makes this analysis incomplete. Second, this method fails to examine how increased travel efficiencies in rural areas newly proximate to regional employment centers and retail shopping districts are influenced by transportation projects. The DEIS, in fact, recognizes that scattered large lot development has occurred across Howard County’s agricultural areas. DEIS, at II-10. Given current permissive zoning, this trend would be accelerated by the MD 32 project. See Comment of Alfred Barry, attached hereto as Exhibit 3.

The DEIS fails to assess the influence of travel efficiencies created by the MD 32 project on development occurring in western Howard County as well as rapidly growing southern Carroll County. The DEIS must make a good faith effort to assess secondary effects on land use patterns or explain why it cannot be assessed. A number of methodologies and models are available for this analysis. One example of a new methodology for analyzing secondary effects is being developed by the Maryland Office of Planning. See Maryland Office of Planning, "Draft Work Program – Concept: Integrating Transportation and Smart Growth, Transportation and Community and System Preservation Pilot Program" (March 9, 1999). This methodology will assess how transportation improvements effect land use and demographic change in both growth and preservation areas. The geographic extent of the potentially effected rural areas examined will depend on the geographic "reach" of improvement, as measured by travel efficiency. Thus, rural areas increasingly distant from the actual improvement would be included in the analysis as long as travel efficiencies to destinations of interest are estimated to have increased beyond a determined threshold. The threshold will be determined by considering common travel behaviors between residential areas and employment and retail service destinations. The threshold will be the point at which, based on these behaviors, it would be reasonable to conclude that increased travel efficiency might make development in an area considerably more attractive than was previously the case.

2. The Secondary and Cumulative Effects Area is Not Sufficiently Large.

As the DEIS recognizes, the cumulative and secondary impact analysis must include a detailed analysis of the project’s impacts on a much larger area (the Secondary and Cumulative Effects Area, or SCEA) than the area of direct impacts. However, the SCEA identified by the DEIS is too small. The method for determining the boundary of the SCEA is not explained beyond stating that it is based on a number of factors, "including areas of traffic influence¼." DEIS, at. IV-60. The boundary ends at the northern border of Howard County, where Howard County’s Rural Conservation district abuts Carroll County’s growth areas of Sykesville and Eldersburg. Exclusion of the rapidly growing areas of southern Carroll County is a major oversight and renders the SCEA scope incomplete. In fact, many trips on this segment of MD 32 originate in southern Carroll County, and the DEIS specifically identifies "traffic influence" as a criterion for determining the SCEA boundary. Accordingly, it is inconsistent and indefensible that the DEIS excludes southern Carroll County. The eastern portion of the SCEA also needs to be better examined as traffic and land development are greatly influenced by the new improvements to MD 100.

3. The DEIS Identifies Areas of Possible Impact from Development But Fails to Provide Any Meaningful Assessment of These Impacts.

The DEIS acknowledges the possibility that secondary development will affect soils, historic properties, water resources, wetlands, floodplains, etc., but repeatedly fails to provide any analysis of the extent to which these resources will be affected, or any specificity regarding the likely area within the SCEA where specific impacts will be experienced. For example, the DEIS makes a generalized statement that "[l]and use changes can pose a threat to the loss of prime and important farmland soils," but fail to identify how much and where that loss will occur. DEIS, at IV-70. The same cursory treatment is given to historic properties, floodplains, wetlands, and water resource impacts. Other impacts, such as visual and noise, are ignored altogether.

Instead of undertaking a detailed examination of the full range of likely secondary impacts, the DEIS simply assumes without basis that government regulatory or technical assistance programs will mitigate these impacts to a less-than-significant level. See e.g., DEIS, at IV-73, IV-75, IV-79. Likewise, the DEIS improperly relies on the existence of zoning in Howard County as evidence that scattered new development will not be generated by capacity enhancements and installation of interchanges on MD 32. See comments from Chesapeake Bay Foundation scientists Jennifer Aoisa and Kimberly Coble, attached hereto as Exhibit 3.

This is not adequate. Local zoning and other controls cannot be relied on to control development, and thereby avoid or mitigate secondary and cumulative effects, given the dynamics of land use, human behavior, and capacity increasing projects. Local elected governments have "a huge incentive to accommodate development in an effort to boost the ad valorem tax base." York, Marie, AICP, "Dealing with Secondary Environmental Impacts of Transportation," Vol. 51 Land Use Law 3, 7 (March, 1999). In fact, the characteristics and independent assessments of Howard and Carroll County zoning indicate rural resources lands are highly vulnerable to development. In a statewide survey of agricultural lands, Maryland Office of Planning identifies Howard County’s Rural Conservation District, with densities of 1:4.25 - 1:3 dwelling units per acre as "least protective" agricultural zoning. Maryland Office of Planning, Atlas of Agricultural Land Preservation in Maryland (1998), at 10. According to Maryland Office of Planning’s analysis, most areas of Carroll County show significant development pressure while all of Howard County shows significant development pressure in areas zoned for agriculture. Id., at 17.

Moreover, contrary to the DEIS’s citation of Howard County’s "expansion" of its agricultural preservation program, neither the area’s permissive zoning nor recent discontinuance of funding for the purchase of easements through its Agricultural Preservation Program indicate sufficient protections against new development pressures. DEIS, at IV-62 and IV-63. Since 1997, the County as failed to purchase agricultural preservation easements as it has done so in the past, but has instead relied on development regulations for agricultural easement acquisition. Development regulations have yielded far fewer acres annually enrolled in the County prior to 1998. See Howard County Department of Planning and Zoning, Development Monitoring System Report. (March 1999), at 31. Thus farmland is likely to be more vulnerable to development pressures in the future.

In any event, these ostensible regulatory or planning restrictions on growth are not present in Carroll County. Unlike Howard, Carroll County has proposed massive conversions of agricultural lands to development. According to in its recent draft Freedom Area Comprehensive Plan, 1,975 acres in the southern Carroll plan area are recommended to be rezoned from agricultural use (1 dwelling unit to 20 acres) to higher intensity uses including: residential densities of 1 du/1 ac. to 4-6 du/ac., and commercial and industrial uses. See Carroll County, draft Freedom Area Comprehensive Plan (1998), at Chapter 6, 9. This proposal to convert half of the agriculturally zoned land in the Freedom/Sykesville Area to land for more intensive development is highly controversial among local residents and farmland preservationists, and is of great environmental concern as a large loss of resource lands. Given the current traffic volumes on MD 32 in the region, further expansion of sprawl development onto thousands of acres of farmland is dependent on a major increase in MD 32’s capacity. Indeed, Carroll County’s growth plans for the Freedom/Sykesville Area are candid in their reliance on the expansion of MD 32 to serve this anticipated development. The dualization of MD 32 from I-70 to MD 26 is identified as a "top priority" State road project in the plan, "once the Warfield Complex project gets started," (note: Warfield Complex is also known as the Springfield Hospital property). Id., at Chapter 6, 9.

Potential new commercial development in particular, is also likely to be promoted by an upgraded MD 32. A major employment center has been in Howard County’s Plan for the intersection of I-70 and MD 32 although the area is not currently a Priority Funding Area. One can also reasonably expect numerous commercial rezoning applications along the various new intersections, justified by a "substantial change in the character of the neighborhood" finding required under Article 66B and promoted by both the highway improvements and the new residential population.

That increased highway capacity can lead to bolstering arguments for future rezoning applications is secondary, perhaps, to the circular appeal that improving such capacity often plays into the arguments of developers needing to overcome Adequate Public Facilities regulations. Both Howard and Carroll County developers stand to benefit in future cases where excess capacity would be an argument to allow more development than would otherwise be permitted to occur.

The failure to identify and assess secondary and cumulative impacts with the requisite degree of specificity has been criticized on numerous occasions by the courts. As one court explained, "[u]ncertainty about the pace and direction of development merely suggests the need for exploring in the EIS/R alternative scenarios based on these external contingencies." City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975). Indeed, the Council on Environmental Quality (CEQ) guidance states that the agency must make an effort to predict the likely area and extent of development, explaining:

It will often be possible to consider the likely purchasers and the development trends in that area or similar areas in recent years; or the likelihood that the land will be used for an energy project, shopping center, subdivision, farm or factory. The agency has the responsibility to make an informed judgment, and to estimate future impacts on that basis, especially if trends are ascertainable or potential purchasers have made themselves known. The agency cannot ignore these uncertain, but probable, effects of its decisions.

CEQ, 40 Most Asked Question, Q & A 18 (emphasis added).

Likewise, it is not sufficient for the DEIS to avoid detailed evaluation of these secondary impacts based on the existence of a variety of state and county regulatory programs directed at mitigating development impacts. There is no evidence that these programs require the imposition of binding and enforceable measures to mitigate the impacts of highway-induced development to a less-than-significant measures. For that reason, the CEQ cautions that "agencies should use a broad approach in defining significance and should not rely on the possibility of mitigation as an excuse to avoid the EIS requirement." CEQ Forty Most Asked Questions, Q & A 40 (emphasis added)

4. The DEIS Fails to Acknowledge Secondary Traffic and Land Use Effects.

In the DEIS section addressing potential secondary effects, traffic patterns affecting the project area are dismissed for analysis. DEIS, at IV-59-IV-85. Improvements to MD 32 from Pindell School Road to MD 108, completed in 1996, and the opening of a new section of MD 100, completed in November, 1998, are mentioned but the DEIS erroneously concludes that "[t]his review found that development within the SCEA boundary was not impacted by these projects." Id. at IV-61 to 62. In fact, according to SHA, the improvements to MD 32 from Pindell School Road to MD 108 have increased traffic volume and slightly increased truck traffic. Heather Murphy, MD 32 Project Manager, SHA, personal communication (February, 23, 1999). The increased volume is captured in the 1997 ADTs presented in the DEIS. DEIS, at IV-7 to IV-10. A subsequent reduction in volume due to the opening of the new segment of MD 100 (November 1998), however, are not included in traffic counts. SHA officials verbally acknowledge as much as a 10 percent reduction in volume on this segment of MD 32 has occurred since the completion of improvements to MD 100. Id. Thus, this assessment already includes the increase in volume and fails to acknowledge the impact that traffic has already had on the SCEA. While the full effects of the recent opening of a new section of MD 100 have yet to emerge, there can be little doubt that, based on past experience in the SCEA, they are likely. These likely land use changes should be identified, and the resulting impacts on the environment should be evaluated in the DEIS.

The DEIS provides no analysis of potential traffic effects from the project itself. In fact, as indicated by the attached analysis of transportation planner Gerald Neily, the build alternatives only exacerbate roadway safety problems above the project area. The most immediate and serious secondary impact of build Alternatives I an II are serious safety problems generated north of the project. Converting MD 32 to a freeway from MD 108 to I-70 might reduce the accident rate in this area, but would surely lead to the same problem of motorist expressway expectations, if not worse, north of the I-70 expressway terminus. Whereas the current transition area north of MD 108 has full access control for about five miles, MD 32 has a high volume full four-legged intersection with MD 99 less than one mile north of I-70. If the intersection of MD 32 and MD 99 becomes the first at grade intersection on MD 32 beyond the freeway, there will be major safety problems.

Furthermore, the Baltimore Regional Transportation Plan calls for the future full dualization of MD 32 and widening to four lanes northward to MD 26 (Liberty Road) in Eldersburg in Carroll County. Once MD 32 is converted to an expressway south of I-70, it will attract more traffic north of I-70 as well, creating congestion and safety problems which will add to the pressure to extend the widening to the north. This is essentially a "domino" effect. Expanded capacity of MD 32 will also lead to an increased rate loss of agricultural land due to the lack of funding for the purchase of development program and concomitant dramatic decline in rate of farmland enrolled in the Agricultural Preservation Program.

The problem of increased attractiveness to traffic will reach its peak at the intersection of MD 32 and MD 26 in Eldersburg. At this intersection, there is no long range plan for significant widening, and no place to widen even if it was deemed desirable. The widening of MD 32 will funnel increased volume directly to a permanent bottleneck for which there is no solution, except to disperse the traffic onto local roads and streets throughout the Eldersburg community.

This is already evident in plans to improve country roads such as Obrecht Road, and to connect currently quiet suburban streets such as MacBeth Way and Piney Ridge Parkway. These so-called "improvements" will have a severe impact on the quality of life for nearby residents. MacBeth Way is now a quiet dead-end street that carries virtually no traffic. It will become the favorite short cut for anyone who wants to avoid the worsening bottleneck at the intersection of MD 32 and MD 26. In conclusion, the solution to the safety problem on MD 32 is not to escalate the problems by building an expressway. The solution is to identify and solve the safety problems directly.

C. The DEIS Improperly Defers The Required Detailed Study of Environmental Impacts To A Later Stage of Project Planning.

As the attached comment from Chesapeake Bay Foundation scientists Jennifer Aoisa and Kimberly Coble indicates, the DEIS mentions several times that although it is not providing specific information on the detailed and quantifiable environmental impacts of the project in this document, further study will be carried out at a later date. This is not proper. Rather, if exact location and design of the actions is not available until the final stage of project engineering, the DEIS should provide a range of the estimated quantified consequences of environmental impacts based on preliminary designs of the two build alternatives. Only the DEIS’s analysis of wetlands impacts attempts to estimate specific impacts. The purpose of the DEIS is to provide the public and decision-makers with thorough understanding of the environmental consequences of proposed actions so that informed decisions can be made in determining the most socially and environmentally beneficial course of action.

It is well established that an agency may not defer compliance with NEPA until after approval of a project. As one court noted, undertaking studies about a highway's environmental impacts after construction is like "locking the barn door after the horses are stolen." Lathan v. Volpe, 350 F. Supp. 263, 266 (W.D. Wa. 1972). See also State of Idaho v. ICC, 35 F.3d 585, 596 (D.C. Cir. 1994) ("[p]iecemeal enforcement of license conditions is no substitute for an overarching examination of environmental problems at the time the licensing decision is made."); LaFlamme v. FERC, 852 F.2d 389, 400 (9th Cir. 1988) (FERC's issuance of conditional license for hydroelectric plant requiring "post-licensing" study of environmental impacts "violates NEPA's very letter and purpose"). Accordingly, the assessment of these environmental impacts must be made in the DEIS.

D. The DEIS’s Air Quality Analysis is Deficient.

The deterioration in air quality generated by the probable increase in vehicle miles traveled and vehicle trips generated is not considered in the DEIS. Only Carbon Monoxide (CO) impacts are highlighted in this DEIS. Limiting the analysis to CO is unacceptable by law, and it is unacceptable for the full presentation of impacts to decision-makers. The ostensible reason for such limited analysis of air pollutants and effects is because impacts to seasonal ozone levels from any of the build alternatives is lost in the "noise" of the air quality modeling of the regional Transportation Improvement Program (TIP). Unfortunately, that is the reason given for analytic limitations on every new regional roadway component - and when measured and inputted individually, indeed, such may be the results in a region that travels tens of millions of miles per day.

Increases in pollution by ozone precursors must be assessed cumulatively and collectively. The build alternatives contribute to will increases in area-wide Vehicle Miles Traveled (VMT) and vehicle trip numbers. The freeway alternatives will increase average speeds to the point that nitrogen oxide emissions will increase. In accordance with the federal Clean Air Act, as well as federal transportation law (Intermodal Surface Transportation Efficiency Act and TEA-21), these factors must be modeled and evaluated not only with respect to this particular proposed facility, but also must be used in regional modeling, together with other likely area-wide "improvements," so that a likely overall impact can be derived. To simply say that this or that road will not cause ozone exceedances within this air quality severe non-attainment area is disingenuous and unlawful.

E. The DEIS’s Discussion of Impacts on Historic and Cultural Properties is Deficient.

The DEIS’s discussion of impacts on historic and cultural properties is also deficient. The DEIS discloses that at least two historic properties that are eligible for listing in the National Register of Historic Places are within 200 feet from the proposed highway. DEIS at III-17. However, the DEIS fails to assess the project’s impact on these historic sites. In fact, the Milton Shipley House Corncrib, the only corn crib of its type in the entire state, is located within 100 feet of the portion of MD 32 to be widened. See Appendix A; Letter from Louis H. Ege, SHA to J. Rodney Little, MHT (Feb. 26, 1996). There is no evidence that any determination of the project’s effect on this historic sites have been made by the FHWA, in consultation with the Maryland Historical Trust and the federal Advisory Council on Historic Preservation, as required by Section 106 of the National Historic Preservation, 16 U.S.C. 470f.

More importantly, the DEIS fails to indicate that any evaluation was undertaken of whether the project will result in a constructive use of these historic sites, pursuant to Section 4(f) of the Department of Transportation Act, 23 U.S.C. §303. One of the most stringent environmental laws ever enacted by Congress, Section 4(f) requires the Secretary of Transportation: to (1) avoid all use of parks, historic resources, recreational areas, and wildlife refuges unless there is no prudent and feasible alternative to doing so, and (2) undertake all possible planning to minimize harm to these protected resources. The circumstances under which an alternative can be rejected as not "feasible and prudent" under Section 4(f)(1) have been specifically and narrowly defined by the U.S. Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). The Secretary of Transportation is not permitted to "engage in a wide-ranging balancing of competing interests." Id. at 411. Rather, to find an alternative "not prudent" under Section 4(f) the Secretary must find that it presents "unique problems" -- that there are "truly unusual factors present," or that the cost or community disruption resulting from the alternative would reach "extraordinary magnitudes." Id. at 413.

In order to comply with Section 4(f)’s preservation mandate, the FHWA’s regulations require it to determine the applicability of Section 4(f) "early in the development of the action when alternatives to the proposed action are under study." 23 C.F.R. §771.135(b). According to FHWA’s own Section 4(f) policy, "[w]hether or not the historic integrity of the historic site or district is substantially impaired [i.e., constructively used] should be determined in consultation with the SHPO and thoroughly documented in the project records." Section 4(f) Policy Paper, at 12. As one Court recently recognized, "Because the historic properties protected by Section 106 are similarly defined, it follows that the agency must complete its section 106 determinations before it can comply with section 4(f). Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 371 (D.C. Cir., 1999) (emphasis added). We note as well that the recently enacted transportation law, TEA-21, now directs the FHWA to conduct its environmental reviews and approvals "whenever practicable . . .concurrently within a cooperatively determined time period." TEA-21, Section 1309. Accordingly, the FHWA needs to finish its Section 106 reviews, so that information from its Section 106 consultations is available in a timely manner to inform the FHWA’s NEPA and Section 4(f) evaluations with respect to historic properties.

In sum, the DEIS’s evaluation of environmental impacts, and in particular, secondary and cumulative impacts of highway-induced development, associated with the dualization of MD 32 is so deficient that preparation of a supplemental draft environmental impact statement addressing these issues is required. The DEIS also fails to examine a reasonable alternative — making safety improvements to the existing two-lane highway — that could satisfy the transportation needs for the project in lieu of full dualization of MD 32. Moreover, selection of such an alternative would not result in induced traffic or development to the same degree as the dualization alternative, and would be consistent with Maryland’s Growth Management Law.

Very truly yours,

Andrea C. Ferster
Enc.
cc: Michael McCabe, Region III Administrator, U.S. E.P.A.
David Gendell, Regional Administrator, FHWA
Willie Taylor, Director, Office of Environmental Affairs
U.S. Department of the Interior
Louis Ege, Jr., Deputy Director, SHA