Ref: 8EPR-EP

Michael G. Ritchie
Division Administrator
FHWA Utah Division
2520 West 4700 South, Suite 9A
Salt Lake City, Utah, 84118

Byron Parker, Project Director
Utah Department of Transportation
3995 South 700 East, Suite 100A
Salt Lake City, UT 84107

Re: Legacy Parkway, I-215 at 2100 North in Salt Lake City to I-15 and U.S. 89 near Farmington in Salt Lake and Davis Counties, Utah, Draft Environmental Impact Statement and Section 4(f), 6(f) Evaluation

Dear Messrs. Ritchie and Parker:

In accordance with the National Environmental Policy Act (NEPA) and Section 309 of the Clean Air Act, the Region 8 office of the Environmental Protection Agency (EPA) has reviewed the above-referenced Draft Environmental Impact Statement (DEIS).

EPA has been an active participant in the extensive scoping process facilitated by the FHWA during the past two years. This process has led to a better understanding and improved working relationships between all parties involved. As a result of that cooperation, many of the concerns expressed in our July 1, 1998, comment letter on the Administrative Draft EIS have been addressed. However, we remain concerned that all of the build alternatives present the potential for significant impacts to nationally important aquatic resources. Therefore, EPA has rated each of the build alternatives as "EU" (environmentally unsatisfactory) and has concluded that the proposed action should not proceed as proposed. We likewise are recommending denial to the Corps of Engineers on the associated Clean Water Act Section 404 permit. EPA still has major concerns on the following issues: environmental impacts to wetlands of national significance; information on indirect wetland impacts; inadequate disclosure and analysis on purpose and need; analysis of alternatives to building a new road; and inappropriate segmentation of this project for alternative and impact analysis. The important habitat values of the project area wetlands alone make it imperative that these wetlands be avoided to the maximum extent practicable, and the search for alternatives be completely exhausted.

As you are aware, the Clean Water Act Section 404(b)(1) Guidelines require the selection of the least environmentally damaging practicable alternative. The listed impacts attributed to the parkway do not include the indirect impacts to adjacent wetlands, including wetland fragmentation related to the proposed alignments. Even without these additional wetland impacts being considered, the Locally Preferred Alternative is not the least damaging practicable alternative. In addition, it is difficult to assess whether Alternative A is the least damaging alternative without full disclosure and analysis of all possible alternative options, and analysis of how the Legacy Parkway project fits within the long-term Wasatch Front transportation strategy.

EPA's review of the draft EIS leads us to conclude that the proposed Legacy Parkway represents an incremental development of a much longer, 125 mile highway envisioned as the Legacy Highway. The recently-adopted Wasatch Front Regional Council 2020 Transportation Plan includes funding for the purchase of almost 40 miles of right-of-way for additional segments and actual construction of over 10 miles of the highway in the western part of the Salt Lake valley. This decision clearly indicates the continued activities by the local communities to complete the highway and the "connectedness" of such activities. EPA believes that a combination of a mass transit alternative, particularly light rail, with expansion of I-15 and other arterials has not been adequately considered. This inadequate disclosure of information, together with those above regarding wetland impacts, lead us to rate the document "3" (inadequate information).

The combined rating for this document is EU-3 (environmentally unsatisfactory-inadequate). Accordingly, if these issues cannot be resolved, this project is a candidate for referral to the Council on Environmental Quality. EPA believes these environmental impacts are of an unsatisfactory magnitude for all the "Build" alternatives presented (i.e. Alternatives A, B, and C). The Locally Preferred Alternative appears to be inconsistent with the "sequencing" requirements of the Clean Water Act 404(b)(1) guidelines, and all the "Build" alternatives adversely impact wetlands of national and international importance. The "3" rating indicates that EPA believes that: 1) the DEIS does not contain adequate disclosure and analysis of alternatives, indirect wetland impacts, and other Legacy Highway segments; and 2) that a supplemental or revised DEIS needs to be prepared to address these concerns. Public comment would be required on the revised analyses. Detailed comments supporting our position are also enclosed. A copy of EPA's rating criteria is also enclosed.

EPA is pleased that the state is considering setting aside close to 1500 acres of wetlands adjacent to the Great Salt Lake. Although this preserve alone may not meet the mitigation requirements of Section 404 of the Clean Water Act, should an acceptable alternative be identified, it is appropriate to consider preserving such a valuable component of Utah's natural and cultural legacy, along with restoration of degraded wetlands, as part of any mitigation package.

We had hoped to meet with you again during this extension period; however, holiday schedules did not permit that to happen. Therefore, we would like to meet with you at your earliest convenience.

Thank you for the opportunity to comment. We look forward to working with both FHWA and the State of Utah to identify an environmentally sound transportation solution to the identified transportation needs of the Salt Lake community. If you have any questions, please contact Cindy Cody of my staff at 303-312-6228.

Sincerely,

[original signed by]

William P. Yellowtail
Regional Administrator

enclosures

cc: Corps, Bountiful Office
USFWS, Salt Lake City Office
EPA: OFA and OWOW

The wetlands in the project area are part of the Western Hemispheric Shorebird Reserve Network, providing resting, feeding, breeding, nesting, and rearing habitat for numerous species and millions of individual shorebirds, wading birds, and waterfowl. Many of these are migratory, while some are year-round residents. In addition to those avian species that are commonly recognized as specifically requiring wetlands and other aquatic habitats, the project area wetlands and playas serve the needs of many passerine and raptor species. The habitat values of the project area wetlands alone make it imperative that these wetlands be avoided to the maximum extent practicable.

The DEIS states that the Locally Preferred Alternative (LPA) is the environmentally preferred alternative because the wetland preservation proposal for the LPA results in a greater area of preservation than Alternative A. This results from there being more initial impacts under the LPA than Alternative A. In other words, the project with the most acres of direct impacts would receive the most acres of wetland mitigation in return. The requirements of the Clean Water Act (CWA) do not reflect this approach to mitigation. This approach is inconsistent with CWA Section 404 policy because avoidance of impacts should not be pursued prior to implementation of mitigation.

The CWA requires a sequential approach to mitigation. Specifically, the February 7, 1990 Memorandum of Agreement (MOA) between the United States Department of the Army and EPA concerning the determination of mitigation under the CWA Section 404(b)(1) Guidelines states that: "Compensatory mitigation may not be used as a method to reduce environmental impacts in the evaluation of the least damaging practicable alternatives for the purposes of requirements under Section 230.10(a)." In other words, the alternatives are first to be evaluated without inclusion of mitigation. Once that evaluation is completed, the least environmentally damaging practicable alternative is selected. Should any adverse impacts remain with the selected alternative, then mitigation should be applied to those impacts to assure that the impacts are reduced to an acceptable level. The fact that the analysis presented in the DEIS does not follow this national standard is a major concern to EPA.

The DEIS identifies preservation as the preferred method for wetland mitigation. The DEIS mentions wetland restoration as a mitigation strategy, but does not fully discuss this mitigation option. The DEIS needs to document how many areas and acres have been identified as having potential for restoration, and where they are located. The potential for acquisition and restoration of these areas needs to be presented so the decision makers can weigh the alternatives of wetland restoration vs wetland preservation, or a combination of the two approaches. In general, wetland restoration is preferred over wetland preservation so that progress towards the national no-net-loss of wetland goal can be achieved.

Other areas which need to be expanded in the DEIS include analysis of the wetland habitat fragmentation which will occur as a result of the various alternatives, and the potential direct and indirect effects of habitat fragmentation. For example, in addition to the direct impacts of the footprint of the proposed highway (habitat destruction), indirect and cumulative impacts will also occur, e.g. habitat fragmentation resulting in the loss of habitat integrity through the creation of barriers to species and ecological processes, and degradation of habitat through disturbance of resident species, contamination with pollutants, alteration of natural processes, and introduction of exotic species.

Fragmentation of habitats can have serious consequences, and may include the following: erosion of genetic diversity and amplification of inbreeding, increased probability of local extinction from small population sizes and reduced likelihood of reestablishment, loss of area sensitive species, and increased abundance of weedy species.

Associated with fragmentation is habitat degradation through what is called the "edge effect" or reduction in habitat integrity at the boundary of a highway corridor caused by disturbance, contamination, or other degrading factors that extend into the natural habitat. Numerous studies have been done on the edge effect of highways, and they generally conclude that the effects of highways extend considerable distances into existing habitats to which organisms have become adapted.

EPA is also concerned about the various operations entailed in highway construction and operation which result in significant alterations of surface and groundwater flow patterns. Operations that can have a significant effect on wetland area and functions include: stockpiling of materials; maintenance of mechanized equipment; disruption of drainage patterns; construction, maintenance and use of staging areas; and snow and ice controls. These changes may eliminate habitat or change habitat types through such effects as ponding (which results in vegetation changes), soils compaction and lowering of the water table with eventual draining of down-gradient wetlands.

The potential effects of secondary development (land conversions), namely increases in area of impervious surfaces, will have a marked effect on hydrology and its impact on linear water courses and their substrates. Down cutting of relatively small drainage channels can result in drainage of neighboring wetlands.

Many of the aforementioned impacts will extend beyond not only the highway corridor, but also the project study area. Failure to recognize this will result in underestimating the potential effects of the proposed project on both terrestrial and aquatic habitat. Though these systems may not be immediately or completely lost, the extent to which they perform the several functions assessment may be moderately to severely reduced. These factors need to be taken into account.

Project Purpose and Need

The proposed project is determined to be necessary, in part, because of a stated desire for vehicle travel in the corridor to be able to proceed at level of service (LOS) D in all locations. This represents a slight improvement from current conditions and a significant improvement over the no-action scenario presented in Figure 1-5. However, expansion of I-15 to 12 lanes, supplemented with additional transit service, would also provide a significant improvement over the no-action scenario, although no specific LOS estimates were presented for this scenario in the DEIS. The EIS should be modified to provide this analysis and compare it to the no-build and present day conditions.

Once this analysis is completed, the EIS needs to do more to justify the need for the incremental improvement offered by building Legacy Parkway rather than expanding I-15 and transit services. In EPA's view, LOS D as a stand-alone design goal does not justify the need for a project with such significant environmental impacts. The EIS needs to discuss the benefits of going beyond the LOS improvements offered by expanded I-15 and transit, and demonstrate why it is necessary to achieve the additional increment of improvement provided by Legacy Parkway. This discussion could include estimates of the cost savings from reduced delay, reduced accident rates, any air quality improvements, or other benefits that would result from achieving LOS D in all locations.

Chapter 1 is missing essential information to document the stated purpose and need for the proposed highway. The basic justification for the project is the estimated peak-hour traffic demand for 2020, and the conclusion that existing and planned capacity improvements will not be able to meet this demand. However the DEIS includes several traffic estimates and other assumptions that need to be more fully explained.

For example, the purpose and need is based on an undocumented estimate of peak-hour, peak direction traffic of 18,490 trips in 2020. The Wasatch Front Regional Council's (WFRC) travel model is apparently the source of this estimate, but there is no discussion in the DEIS of how this estimate was calculated. Since the estimate of 18,490 trips per hour is critical to the purpose and need for the proposed action, the source of this estimate needs to be explained better.

The DEIS seems to underestimate the benefit of several transportation demand management programs planned by the Wasatch Front Council of Governments for the future. A key element of the 2020 Transportation Plan conformity determination is the implementation of demand management measures (such as telecommuting and ridesharing) that are projected to reduce single-occupant-vehicle work trips by 20 percent. However, the DEIS only takes credit for a reduction of 600 trips in the corridor during the peak hour. The DEIS does not state how many of the 18,490 trips in the corridor during peak rush hour are SOV commuters, but if 600 represents a 20 percent reduction, that means that only 2,400 (600/.2=3,000-600=2,400) (13 percent) of these trips represent SOV commuters, and the other 16,090 are for some other purpose (or in some other mode). It seems that a much higher percentage of people traveling in the corridor during the afternoon peak hour would be commuting home from work in an SOV. The DEIS should document the current percentage of SOV commute trips in the corridor during the afternoon peak hour, and explain why it's expected to be only 13 percent in 2020. Otherwise the impact of the transportation demand management measures should be reevaluated.

The DEIS includes the unexplained projection that home-based work trips (i.e., commute trips) will increase at a much faster rate than population or employment, Tables 1-5 and 1-6). Population in the Wasatch Front region as a whole is projected to increase by 60 percent, employment by 70 percent, but, home-based work trips are projected to increase by 88 percent, almost 50 percent higher than the rate of population growth. Since it is peak hour (largely commute) traffic that is driving the purpose and need for this project, the assumption about the growth rate of home-based work trips may have a major impact on the projections of unmet need in Chapter 1. Our discussions with your office and BRW revealed that some of this difference may be due to a projected increase in the number of multiple-worker households and other demographic factors. However, the EIS should more fully explain: 1) how it is possible that employment can increase so much faster than population and 2) whether this trend has any impact on peak-hour traffic volumes, and if so, the extent of that impact.

According to the Envision Utah Baseline report, the Greater Wasatch Area population is projected to increase from 1.6 million people in 1995 to 2.7 million by 2020. By 2050, an estimated 5.0 million people will live in the area, a population similar to the current size of Philadelphia. The Envision Utah report on Transportation Challenges states that even with the completion of the planned major projects such as I-15 reconstruction in Salt Lake, Davis, and Utah County, and sections of the Legacy Highway, average peak period speed is expected to drop from 29 miles per hour in 1995 to 23 miles per hour in 2020. With a rapidly increasing population and a projected decrease in average speeds on existing and newly planned highways, mass transit alternatives need to be fully evaluated.

Alternatives

Because the value of the wetland complex to be lost is so significant, the document needs to assure that all alternatives have been exhausted. The DEIS does not fully analyze mass transit as an alternative for meeting the future transportation needs of the North Corridor. By not fully analyzing this alternative, the public, and decision-makers do not know what probable reduced impacts to wetlands, water quality, air quality, and other natural resources could possibly be achieved. Opportunities to maximize the capacity of I-15 in conjunction with expanded transit need to be reconsidered. EPA submitted comments on the I-15 DEIS (December 7, 1998) suggesting all alternatives be reevaluated to meet maximum demand.

As discussed in our July 1, 1998 letter commenting on the administrative draft EIS, EPA is concerned that transit options for the corridor have not been fully explored. For example, light rail is summarily dismissed in the DEIS as an alternative without any discussion. (Light rail transit was discussed briefly in the cited WFRC Long Range Transit Analysis. In that document, this technology was dismissed primarily because its operating characteristics as typically deployed would result in long travel times, and because the length of the corridor would result in high costs. There was no investigation of alternative operating regimes that would provide higher overall speeds, and there was no specific cost analysis.) It would seem that a light rail or commuter rail system operating on more frequent schedules would provide significantly greater capacity than the analyzed commuter rail system operating on 15-minute schedules. For example, the light rail system in downtown Denver operates on 6-minute headways during the peak hours. Light rail in this corridor would also have the potential for additional ridership by linking up with the Salt Lake City north-south and east-west TRAX segments. This is not investigated as an alternative in the DEIS.

Other options are available that could improve projected transit ridership, including expanded express bus service operating in bus-only or bus/high occupancy vehicle (HOV) lanes, additional park and ride facilities, commuter rail operating at greater frequencies, subsidized or free fares, rail transit combined with local shuttles to provide additional access to employment sites and midday destinations, rail transit combined with land use measures (such as density requirements near station locations), and combinations of these options. It also appears that there has been no analysis of rail transit operating within the I-15 right-of-way as an alternative. The I-15 MIS/DEIS demonstrates (in Alternative 7) that 90 percent of anticipated travel demand in the corridor in 2020 can be met through a combination of expanded transit, a 12-lane I-15, and various other measures. Finally, it is our understanding that the envisioned first phase of I-15 reconstruction will include bus/HOV lanes, but it appears that the future of these lanes in the Legacy/I-15 context is not discussed as an alternative in the DEIS. These options and others like them should be more fully examined in order to satisfy the test that all alternatives to building Legacy Parkway have been exhausted. As discussed in our December 7, 1998 conference call with your office, we would welcome the opportunity to meet with you and representatives of the Utah Transit Authority to discuss potential transit measures in more detail.

It is EPA's belief that some portion of the remaining 10 percent of estimated demand may be eliminated through consideration of demand suppression in a Legacy Parkway no-build analysis (through use of a no-build land use scenario and analysis of potential peak spreading) and through a reevaluation of the effectiveness of WFRC's transportation demand management strategies. Any remaining unmet demand may be able to be accommodated through implementation of additional enhancements to transit service in the corridor.

The alternatives analysis is also limited by its reliance on a single set of socioeconomic assumptions for both the build and no-build alternatives. This results in identical travel demand estimates and virtually identical vehicle miles traveled (VMT) estimates in both the build and no-build scenarios, and precludes a complete analysis of the air quality and other impacts of construction of the highway. Specifically, the analysis does not consider the extent to which households and businesses will not locate in or near the corridor if the highway is not built, and it does not consider the impact of additional trips induced by the additional capacity.

The use of a single set of socioeconomic assumptions was identified by the U.S. District Court for the Northern District of Illinois as a flaw in the EIS for a proposed toll road in northern Illinois:

"Specifically, plaintiffs point out that defendants relied on a single population forecast and that the forecast was used to analyze the build and no-build scenarios. . . Plaintiff's argument is persuasive. Highways create demand for travel and expansion by their very existence. Swain v. Brinegar, 517 F.2d 766, 777 (7th Cir. 1975); Def. 12(M) P 86. However, the final impact statement in this case relies on the implausible assumption that the same level of transportation needs will exist whether or not the tollroad is constructed. In particular, the final impact statement contains socioeconomic forecast that assumes the construction of a highway such as the tollroad and then applies that forecast to both the build and no-build alternatives. As a result, the final impact statement creates a self-fulfilling prophecy that makes a reasoned analysis of how different alternatives satisfy future needs impossible."

A number of techniques are available to develop an alternative land-use scenario for the no-build case. Most simply, an expert committee could be convened to reach consensus on such a scenario. A better alternative would be to use any of the land-use models available today (including DRAM/EMPAL, MEPLAN or TRANUS) in conjunction with the travel model to develop a no-build land use scenario. Finally, it is EPA's understanding that a sophisticated land-use model is already being developed for the Salt Lake area; perhaps development of this model could be accelerated so that it could be used to assess the build/no-build impacts of this project.

A growing body of evidence suggests that additional highway capacity does not simply relieve congestion at fixed levels of usage, but generates additional travel as well. In the 1995 report entitled "Expanding Metropolitan Highways: Implications for Air Quality and Energy Use," the Transportation Research Board concluded that "The evidence from the studies reviewed here supports the view that highway capacity additions can induce new trips, longer trips, and diversions from transit." A November 1998 study by the Surface Transportation Policy Project analyzed 15 years' worth of congestion data compiled by the Texas Transportation Institute, and found that "metro areas that invested heavily in road capacity expansion [including Salt Lake City] fared no better in easing congestion than metro areas that did not." The report goes on to say, "Since the 1940's, dozens of traffic studies have found that traffic inducement does indeed occur. . . The most notable of these covers 30 urban areas in California from 1973 to 1990. The authors, UC Berkeley researchers Mark Hansen and Yuanlin Huang, found that at the metropolitan level, every 1% increase in new lane-miles generated a 0.9% increase in traffic in less than five years, which led them to conclude that 'With so much induced demand, adding road capacity does little to reduce congestion.' "

Conversations with both your office and BRW have indicated that the tools to analyze induced travel are not fully developed at this time. However, if the phenomenon of induced travel is real, as the reports cited above seem to suggest, the environmental impacts of the proposed Legacy Parkway seem to warrant at least a preliminary assessment of this phenomenon in the context of this project. For example, perhaps an auto ownership model and a flexible trip generation model could be used to begin to assess the impacts of induced travel in the build alternative. An analysis of peak spreading between the base year and 2020 could be useful to help determine the degree of trip suppression in a no-build alternative.

By relying on a single socioeconomic forecast that in turn produces a single 2020 travel demand forecast of 18,490 trips in the peak hour, the DEIS fails to consider these potential real-world impacts of constructing Legacy Parkway. The results of these studies and the Illinois lawsuit suggest to EPA that there is a reasonable probability that the DEIS could both overestimate travel activity in the no-build scenario and underestimate it in the build scenario. These potential errors in demand calculations could result in a projection for a greater need for the highway, while at the same time projecting fewer impacts than may really occur. Because of the significant environmental impacts of the proposed project, we believe that an attempt should be made, even though the available tools are limited, to revise the travel demand estimates in the EIS to reflect these demand and land use factors in the build and no-build scenarios.

General NEPA Comments

Page S-iv (Volume 1) - Required Federal Actions. In the portion of the document discussing Required Federal Actions, EPA recommends changing Section 319 to Section 309 which is the section of the Clean Air Act dealing with EPA's responsibility to comment on Environmental Impact Statements.

We were unable to find a discussion in the DEIS of the location of the source of fill materials for the project. In many areas fill will be placed to elevate the roadbed to a height above potential flooding. This will be very large amount of material and will increase as the alternatives move west. What this fill material will consist of and where it will come from need to be documented. The direct and indirect impacts resulting from fill acquisition and especially the numerous trucks which may need to travel local roads to transport the fill need to be evaluated.

Another general NEPA issue is that the baseline for environmental impacts appears to change depending on which resource is being impacted. For wetland destruction, the baseline (no-build) appears to be today's affected environment in that building the highway will only impact wetlands that need to be filled in for the highway's footprint. Wetlands to the east of the highway that are projected to be filled in the future are not counted as an indirect impact resulting from locating the Legacy Parkway with the Locally Preferred Alternative (the furthest west alignment which allows more development).

However, for air quality, the baseline (no-build) appears to be the year 2020. As shown in Table 4-12, vehicle emissions associated with the build alternative are expected to be less than those associated with the no-build alternative; however, this table should be revised to show present-day emissions in the corridor so that the public may make a comparison between the future alternatives and current conditions. EPA recommends that the baseline for comparing impacts to the environment be based on today's affected environment, and that indirect impacts, which may result from building the highway, be included in the cumulative impacts as reasonably foreseeable future developments.

September 6, 1999.