LINN COUNTY, IOWA, CONSERVATION BOARD

                                                                                                                       

COMMENTS CONCERNING THE DRAFT SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (DSEIS) DATED JULY 9, 2001 PROPOSED HIGHWAY 100 PROJECT

  IDOT PROJECT NHS-100-1(36)-19-57  LINN COUNTY, IOWA

                                                                                                                                                            

SUMMARY: (pages III to VIII)

 

·        Summary of Alternatives: (page IV)

 

The draft SEIS makes reference to the 1979 FEIS. The draft SEIS fails to point out that the U.S. EPA gave the 1979 FEIS an ER-3 rating, citing it had “significant environmental deficiencies”. The report was rated “inadequate”. The original intent in re-initiating this Highway 100 project in January 1999 was to simply re-evaluate and update the old 1979 EIS.  This 22-year old information was to be the foundation for further justification of the original corridor, thereby facilitating a fast track route for IDOT to begin construction.  The 1979 EIS contained serious flaws that continue to be overlooked even in the current FHWA mandated draft SEIS dated July 9, 2001.  In essence this draft SEIS still remains nothing more than a clumsy re-evaluation of a significantly flawed 1979 document. It is now clear that an entirely new EIS should have been done, rather than a supplement of an already flawed document, in order for the agencies to have a truly fresh look at the impacts and alternatives rather than simply adopting the out-of-date alternative proposed in a 22-year old study.

 

The draft SEIS states that alternatives are “considered” in the draft report. NEPA requires alternatives to be “evaluated”. According to NEPA, the alternatives are to be rigorously explored and objectively evaluated. The alternatives contained in the draft SEIS did not receive comparable treatment or evaluation as the preferred alternative 1 route.

 

The draft SEIS states that the selected route (alternative 1) has received “general support at public information meetings, and has not been opposed by state and federal agencies”. What about local agencies? The Linn County Conservation Board has been on record for a long time of not supporting this location adjacent to the Rock Island Preserve for the highway project. The Linn County Board of Supervisors as recently as September 12, 2001 passed a resolution in support of the Linn County Conservation Board’s position regarding the Iowa Highway 100 project. (See Attachment A). The Iowa State Preserves Advisory Board opposed the Iowa Highway 100 project because of scientific evidence that two state preserves, Hanging Bog and Rock Island Botanical Preserve will be impacted. (See Attachment B). In addition, the State Natural Resources Commission (NRC), on September 5, 2001, took action as follows: “… For staff to draft a letter for signature by the Chair of the Natural Resources Commission expressing the Commission’s concern to the Department ofTtransportation (DOT) for 1) the decision to exclude the preserve from section 4(f) status; 2) impacts to the Byssus skipper; 3) the close proximity of the preferred alignment to Rock Island Preserve and the project’s noise impacts; 4) and that DNR and DOT staff coordinate efforts to identify additional alignment alternatives as presented in the position statement of the State Preserves Advisory Board.”

 

Are we to assume that the other alternatives were not acceptable to other local, state, and federal agencies? The Linn County Conservation Board has maintained over the years, concern and opposition to this project for a variety of documented reasons.  It is summarized as follows:

 

 

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·        January 8, 1979: Comments submitted by the Conservation Board in response to the draft EIS and published in the final EIS dated September 1979 stated: “The report also fails to address the issue of noise as an impact under Section 4(f) of the Federal Aid Highway Act of 1968.  According to the Heritage Conservation Recreation Service, noise levels in excess of standards are considered “use” of the lands subject to the provisions of the Section 4(f).  It appears that noise levels at Rock Island Preserve may result in “use” under the provisions of Section 4(f).  What this means is that the Preserve may be subjected to such “use” even if the alternates avoid physical encroachment and the project may have to be diverted to minimize harm to the area.”     

 

·        April 19, 1999: The President of the Linn County Conservation Board wrote to the Iowa Department of Transportation, stating that the Board was “…not ready to support the project without a much more thorough, detailed, and updated environmental report that examines the environmental impacts, in particular, on the Rock Island Preserve.”

 

·        May 27, 1999: The President of the Linn County Conservation Board wrote a second letter reiterating the Board’s previous comments and concluding: “If these environmental concerns cannot be adequately addressed, serious consideration should be taken to abandon this portion of the highway plan and find an alternate route to Interstate 380.”

 

·        October 10, 2000: On this date the Linn County Conservation Board issued a position paper (contained in Appendix C of the draft SEIS) The position paper concludes: “It is the position of the Conservation Board that the cumulative impacts from the proposed Iowa Highway 100 project will cause substantial adverse and potentially irreparable damage to the bio-diversity of Rock Island Preserve and the surrounding environment.  The Board, therefore, urges the Linn County Regional Planning Commission, the Iowa Department of Transportation and the Federal Highway Administration to abandon this portion of the Iowa Highway 100 project and find another alternative route for this highway.”

 

·        Summary of Environmental Impacts: (page V)

 

The SEIS states: “the proposed project would impact potential (emphasis added) habitat for the byssus skipper, a state listed species. Mitigation is proposed for the skipper habitat”. This statement implies that the skipper may or may not be present. This is another example of the IDOT failing to do the necessary studies to find out. It is a documented fact that the byssus skipper is present in the path of the roadway. The mitigation suggested in the draft SEIS is not an option. According to Frank Olsen, a local expert in the study of Lepidoptera, the mitigation plan set forth in the draft SEIS is highly unlikely to work. A signed affidavit by Mr. Olsen dated August 23, 2001 and made a part hereof (Attachment C) reads in pertinent part: “It would be difficult to find another land that would be suitable for the Byssus skippers. The reason they are now threatened is because their habitat – native prairies -  are  themselves endangered. I do not know of any way to simulate or re-create such locations so that the Byssus skippers would be able to live there successfully. In other words, the only property on which the Byssus skipper is likely to survive is the same type of native prairie land where they are currently located.” Iowa law provides for the protection of threatened and endangered species. It also makes it clear that listed species may be disturbed only under the most extreme circumstances.

 

 

 

 

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Furthermore, the draft SEIS states: “Based on the updated field studies and the analysis of the recommended alternatives as modified since 1979, it was determined that no changes have occurred in either the project area or the impacts of the recommended alternative which would alter the decision as approved by the Federal Highway Administration in 1980.”  There is no credible information from the 1979 FEIS on which to base such an assertion. The Iowa Department of Transportation (IDOT), in the current draft SEIS dated July 9, 2001 has failed to adequately perform any type of inventory or study sufficient to determine whether the Rock Island Preserve contains any plants or animals which are entitled to protection under state or federal law.

 

The 1979 FEIS did not recognize any wetlands adjacent to or within the highway corridor area nor did it recognize a significant prairie area within the proposed highway corridor located west and north of Rock Island Botanical Preserve.  Additionally, there was no understanding of the significance of the Rock Island Preserve being a protected state preserve.  Therefore, there is no way to now conclude “..no changes have occurred.” since they clearly failed to recognize what was so obviously there originally.

 

As noted above, the Linn County Conservation Board wrote letters in April and May 1999 to the Iowa Department of Transportation about the Conservation Board’s environmental concerns.  By spring 2000, virtually nothing had been done to address these concerns.  On June 13, 2000 at a Linn County Conservation Board meeting, various Conservation Board members told personnel from the City of Cedar Rapids and the IDOT, in no uncertain terms, that the Preserve qualified as a Section 4(f) property. This was confirmed in the 7/24/00 letter from FHWA. The Board also informed them that the Preserve would receive significant impact from the roadway and that the Board wanted studies of the impacts to the Preserve, along with inventories of the various plants and animals living on the property.

 

On June 27, 2000, the IDOT wrote a letter to the Linn County Conservation Board in which it was indicated that no one was conducting the “more extensive survey with the Preserve area” that the Board requested.  An IDOT staff memo dated 6/5/00 confirms that the IDOT had no intention to make any effort to prepare the habitat study/plant and animal inventory requested by the Conservation Board. This memo reads in pertinent part:

 

      “Russ [Sinram] approached Jim Rost and asked to have the Preserve specifically studied – Jim is reluctant to include it and told Russ we can hire a consultant later to study if we need to do so.”                                                                                                                          

Therefore, for IDOT to assert that no changes have occurred in the project area or the impacts of the recommended alternatives is evidence that they have acted on incomplete information and have failed to do field studies to enable a full and complete environmental evaluation.

 

·        Regulatory Compliance: (page VI)

 

 The SEIS states the document is in compliance with other state and federal environmental laws.  However, the SEIS completely ignores Iowa Code Section 314.24, which places significant limitations on this project and requires complete analysis of alternatives by the IDOT.

 

Iowa Code Section 314.24 states:

 

Cities, counties, and the department shall to the extent practicable preserve and protect the natural and historic heritage of the state in the design, construction, reconstruction, relocation, repair, or maintenance of roads, streets, or highways. Destruction or damage to natural areas, including but not limited to prime agricultural land, parks, preserves, woodlands, wetlands, recreation areas,

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greenbelts, historical sites, or archaeological sites shall be avoided, if reasonable alternatives are available for the location of roads, streets, or highways at no significantly greater cost. In implementing this section, cities, counties, and the department shall make a diligent effort to identify and examine the comparative cost of utilizing alternative locations for roads, streets, or highways. Cities, counties, and the department shall to the extent practicable preserve and protect the natural and historic heritage of the state in the design, construction, reconstruction, relocation, repair, or maintenance of roads, streets, or highways. Destruction or damage to natural areas, including but not limited to prime agricultural land, parks, preserves, woodlands, wetlands, recreation areas, greenbelts, historical sites, or archaeological sites shall be avoided, if reasonable alternatives are available for the location of roads, streets, or highways at no significantly greater cost. In implementing this section, cities, counties, and the department shall make a diligent effort to identify and examine the comparative cost of utilizing alternative locations for roads, streets, or highways.

 

This section places a burden very similar to Section 4(f) on the Iowa Department of Transportation.  It requires a high burden of proof that no feasible alternatives exist before preserves like the Rock Island preserve may be damaged.  In this case, although its discussion of impacts is inadequate, even the draft SEIS acknowledges that the Rock Island preserve will be damaged.   Thus, despite the applicability of this section, there is no indication in this document that IDOT has even thought about these significant requirements.  Contrary to the section’s mandates, instead of doing everything they could do to avoid damage to natural areas, this highway from its inception has been planned in a way to avoid any alternatives.  Contrary to this section’s mandate to diligently protect natural areas, the IDOT has been diligent in pushing for the destruction of the Rock Island Preserve.  This action therefore ignores this important directive from the Iowa legislature.

 

The Iowa Legislature has made it clear that it is imperative that our dwindling natural resources be preserved from human destruction.  The legislative findings in Section 455.15 are hauntingly appropriate to this proposed action:

 

The general assembly finds that:

 

1.      The citizens of Iowa have built and sustained their society on Iowa's air, soils, waters, and rich diversity of life. The well-being and future of Iowa depend on these natural resources


2. Many human activities have endangered Search Term End Iowa's natural resources. The state of Iowa has lost ninety-nine and nine-tenths percent of its prairies, ninety- eight percent of its wetlands, eighty percent of its woodlands, fifty percent of its topsoils, and more than one hundred Search Term Begin spes species Search Term End of wildlife since settlement in the early 1800's. There has been a significant deterioration in the quality of Iowa's surface waters and groundwaters.

 

3.The long-term effects of Iowa's natural resource losses are not completely known or understood, but detrimental effects are already apparent. Prevention of further loss is therefore imperative.


4. The air, waters, soils, and biota of Iowa are interdependent and form a complex ecosystem. Iowans have the right to inherit this ecosystem in a sustainable condition, without severe or irreparable damage caused by human activities.

 

The pleas of the legislature should not fall on the deaf ears of our transportation agency.

 

 

 

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·        Local concerns: (page VII)

See Conservation Board position dated October 10, 2000 as noted in this section of the draft SEIS. The position paper is attached (Attachment D) for reference since the copy of the position paper contained in the draft SEIS is not legible.

 

The original purpose and need for this highway project contained in the 1979 FEIS was: “… to alleviate congestion on the Cedar Rapids street system and to provide improved access to areas north and west of the city”. In 1979, the preferred highway route may have been a route around what was considered the north fringe; however, this is not the case today. Highway 100 would allegedly carry some portion of 30,000 vehicles per day into an already congested roadway (Collins Road). 

 

  SECTION 1 – PURPOSE AND NEED (pages 1-1 to 1-9)

 

The proposed preferred alternative does not meet the stated purposes for the Highway 100 project. An expert on highway planning, John L. Franklin II, P.E./L.S., of John Franklin Engineering, has conducted a study of the project and has determined that, in fact, there are several alternatives to the preferred alternative that would accomplish the stated purposes much better. He concludes that the preferred alternative is no longer a viable option for this highway project. See the Franklin Report attached (Attachment DD) and incorporated into these comments by reference.

 

Rather than completing the circumferential route and providing a bypass, it will take as many as 30,000 vehicles directly into the already congested Collins Road area. The study indicates that traffic will increase dramatically as a result of the highway 100 project on Collins Road and on Edgewood Road north of Collins Road. This highway project will therefore exacerbate, rather than alleviate, the traffic in this area.

 

The original purpose and need for this highway project stated in the 1979 FEIS (p.18) was “...to alleviate congestion on the Cedar Rapids street system and to provide improved access to areas north and west of the city.”  Other references to project purpose and need contained in the 1979 FEIS are as follows:

·        Page 20 “…100 will alleviate congestion at locations such as the intersection of U.S. 151, U.S. 30, and Iowa 149, on Edgewood Road, and on other major residential streets in Cedar Rapids such as 42nd street.”

 

·        Page 20 “ The proposed facility will improve access for emergency services and access to commercial establishments and social services for the residents of the community.”

 

·        Page 22 “ It is predicted that the Iowa 100 facility will reduce traffic congestion along First Avenue in Cedar Rapids, particularly in the Central Business District.”

 

·        Page 27 “The proposed project will improve ambulance, fire protection, and law enforcement services. The reduction of congestion on First Avenue will be an important benefit as well as result of the project.”

 

·        Page 27 “It is anticipated that the project will have a positive impact on the schools in terms of accessibility because of a significant decrease in traffic on 42nd Street”.

 

 

 

 

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Justification for this highway has been to create a “bypass” or “northwestern circumferential route” around the Cedar Rapids metropolitan area.  This is further substantiated in the 1979 FEIS, which states (p.31): “Iowa 100 will be a significant element in achieving local circulation objectives in the Cedar Rapids area.  This facility will connect relocated U.S. 30 with Interstate 380 and Iowa 150 (now North Center Point Road) in north Cedar Rapids”. The “bypass” or “northwestern circumferential highway route” is also substantiated in the following:

 

·        April 3, 1998 Memorandum from Cedar Rapids Mayor Lee Clancey to Senator Tom Harkin’s office.  This memo states in pertinent part: “…will complete a highway loop network around the Cedar Rapids metro area connecting U.S. Highways 151/13 with Interstate 380 and U.S. Highway 30. This is needed to complete a circumferential highway route along the northerly and westerly borders of the Cedar Rapids metro area and to alleviate congestion on several major arterial highways including Highway 151, Highway 30, Highway 149, Edgewood Road, Blairsferry Road, and Highway 94;…”

 

·        August 31, 1998 Letter from the Linn County Regional Planning Commission (LCRPC) to IDOT. “… a needed road segment to complete the northwestern “bypass” around the metropolitan area.”

 

·        Issue 1, First Quarter Iowa 100 Newsletter. The project background claims this is to : “complete the northwestern circumferential route around the Cedar Rapids metropolitan area.” 

 

The purpose of this highway asserted in the draft SEIS (p.1-2), has changed substantially from that contained in the 1979 FEIS. This is because the preferred route (Alternate 1) no longer creates a bypass or circumferential route, but rather a highway to accelerate urban sprawl and to move traffic into one of the most congested areas in Cedar Rapids (Edgewood Road/Collins Road/I-380).  This specifically defeats the project’s main purposes to “reduce congestion and associated problems on the road network in the surrounding area.” and “accommodate planned growth”.  The stated belief that 80th Street will become a barrier for development and thereby prevent leapfrog development on the west side is completely dispelled in the City of Cedar Rapids’ Comprehensive Plan Summary for development dated May 19, 1999, which shows their true intent to allow development west of Highway 100.  Under the subtitle called System and Route Continuity (p. 1-6), the draft SEIS once again praises the completion of a “circumferential route around Cedar Rapids” and promotes the “gap in the route”, and even the “gap” in bridge crossings as a justification for, and location of, the project.

 

On March 9, 2000 a representative of IDOT wrote in a letter to a member of the Project Design Committee, directing him to revisit the “purpose and need for the proposed action”.  It appears that the result was to define the purpose of the roadway in such a manner that the already chosen preferred alternative would be the only route, which could meet the determination, made. This is further substantiated from a statement made during the April 6, 2000 Project Management Team meeting which reads in pertinent part: “An SEIS is allowed if the project alternative(s) stay within the original review corridor. If the project alternative(s) extend beyond the original review corridor, then the SEIS would need to be scrapped and a new EIS would need to be developed.” The intent to only consider the previously determined preferred route is also substantiated in a Letter of Intent to the Intergovernmental Review System (IIRS) dated May 1, 2000, which makes reference to “One corridor will be studied”. The City of Cedar Rapids has a vested interest in maintaining the preferred route because the city in the early 1990’s purchased land within the preferred corridor for which it will not be reimbursed if that land is not used for this project. Speed was also an original and motivating factor in this project as documented by Mayor Clancey, as chairman of the Linn County Regional Planning Commission, to IDOT in a letter February 1,1999. This letter reads in pertinent part: “For us, the most important things are that the road be built as quickly as possible at as high a level of service to the motoring public as possible.”                                                                                  Page 6

                                                                 

1.3.3 Travel Demand (p. 1-3)

 

- The projections for increased traffic demand are based on faulty assumptions.  The Cedar Rapids population has been relatively stagnant over the last 30 years (compare 1970 census to 2000 census).  The total population of Linn County itself grew only 17% in the last 30 years, a growth rate of about .6% per year.  While traffic demand over this period may have increased at a more rapid pace than population, this was due to increases in per capita miles traveled, which peaked in the early 90's and

are not likely to continue to increase.  The transportation need forecast is based on a population increase of 42% over the next 30 years.  There is absolutely no reason to expect that population will increase at THREE times the growth rate of the last 30 years!  It also is based on a projected increase of 112% of vehicle miles traveled.  This is a faulty assumption.  The last fifteen years saw an unprecedented and unusual growth in per capita vehicle miles traveled.  This trend has already leveled off, and most forecasters predict much slower growth rates in the future, particularly as gas prices continue to increase.  The traffic forecast on which the need for this project is based is therefore contrary to the opinion of most traffic experts. See, e.g., Reports of the Victoria Transport Policy Institute at http://www.vtpi.org/.

 

Thus, Section 1.3.3 is based on totally erroneous assumptions about traffic demand.  The SEIS should at least generate an analysis of the need for the project using more realistic assumptions of population growth and the growth rate of vehicle miles traveled, so that decision makers will have adequate information on the true need for the project.

 

Section 1.3.3 on page 1-4 and continuing on page 1-5, in discussing the current roadways in the Cedar Rapids area, states in pertinent part: “Inefficient travel results from placing both local and through trips, as well as, traffic volume for which they were not designed, on routes such as these.” It seems odd that it is “inefficient” to have both local and through traffic on Edgewood Road and others. Yet, in section 1.3.4 on page 1-6, the DSEIS boasts: “the circumferential route (Iowa 100 Extension) would serve both local and through traffic…” Extrapolating the comments from section 1.3.3 suggests that Iowa 100 is planned for inefficient travel.

                                                                                                                       

Also, the prediction of dire traffic increases on city streets if the highway is not built should be re-evaluated.  The 1979 EIS predicted similar consequences and shows how transportation plans have historically over-predicted demand: The original EIS predicted 26,600 vehicles per day on Edgewood Road by 2004 if Hwy 100 were not built (1979 EIS at p. 20); but the reality is that vehicle miles are nowhere near that figure (15,749 south of Blairs Ferry; 21,317 south of 42nd).  The 1979 study shows how transportation officials like to vastly inflate estimates: they based their predictions on a projection that Cedar Rapids would have a population of 195,300 by 1995 (1979 Final EIS, p.22).  In reality, the population in 1994 was 153,800, about 40,000 people short of their prediction!

 

 

SECTION 2 – ALTERNATIVES  (pages 2-1 to 2-16)

 

The pre-draft SEIS submitted to the Linn County Conservation Board dated January 9, 2001 asserts that: “Several alternatives were developed in response to the Linn County Conservation Board’s request to avoid the railroad corridor and potential direct/indirect impacts to the Rock Island Preserve”. The current draft SEIS dated July 9, 2001 gives the reader the impression that IDOT had the intent to develop alternatives outside the preferred highway corridor when the process for the SEIS began. This was not the case. If not for the Conservation Board’s request, it is most certain that the IDOT would only have addressed several alternatives utilizing the preferred highway corridor for reasons noted in the previous section of this report.                                                                                                                                                                                                     Page 7

 

Most alternate locations contained in the current draft SEIS are little more than an after-the-fact attempt to rationalize a decision made long ago to design the highway for the preferred alternative.  The National Environmental Policy Act (NEPA) requires that environmental information is available to public officials and citizens before decisions are made and before actions are taken. 

                                                                                                                                   

If “Think before you act” is the national policy, why then are the Linn County Regional Planning Commission and the IDOT expending millions of dollars for highway design for an already pre-determined specified location (Alternate 1) before knowing the full and complete environmental impacts of the project? Why weren’t similar amounts of time and money put into the study of other alternatives? The answer is obvious. There never was any intent for serious and complete evaluation given to other roadway alternatives.

 

The comments about transportation demand management (TDM) (p.2-3) misrepresent the issues. There are many other TDM strategies besides simply running buses. Other alternate modes can be developed (flextime, ride-sharing, shuttle services, telecommuting, improved freight logistics), and many incentives that can be employed to encourage use of these options. This can result in far greater travel reductions than the 0.5% claimed in the draft SEIS. In addition, the DSEIS utterly fails to analyze the costs of automobile dependency fostered by this project. See, e.g., “The Costs of Automobile Dependency and the Benefits of Balanced Transportation” by Todd Litman Victoria Transport Policy Institute, December 7, 1999, available at www.vtpi.org.

 

The arguments presented in the draft SEIS can be a self-fulfilling prophesy – planners claim that it is imperative to increase roadway capacity to meet projected demand, which results in increased automobile use which fills that capacity. This is bad planning. This is substantiated in the research paper entitled “Generated Traffic: Implications for Transport Planning”. This research paper was published in the April issue of the Institute of Transportation Engineers Journal.

 

A recommended alternative approach contained in the above-mentioned research is based on contingency planning. This means that transportation management strategies are implemented first, to deter and avoid the need for capacity expansion, and only if demand actually reaches a predetermined level will the roadway project be implemented.

 

The Tower Terrace Road and County Home Road Alternatives (pg. 2-6 & 2-7) were never discussed at any public meeting, but are dealt with summarily in the draft SEIS.  The current draft SEIS asserts that these Alternates do not meet the project’s purpose and need. This statement is contrary to the original stated purpose for this highway “… to alleviate congestion on the Cedar Rapids street system and to provide improved access to areas north and west of the City.” The Tower Terrace Alternative would use the Edgewood Road interchange as the project’s terminus, as the City of Cedar Rapids has plans to extend Edgewood Road to a planned Tower Terrace interchange at I-380 in the future.  The goal should be to have a safe, efficient traffic connection (that can handle large trucks without four traffic signals as at Collins Road) to I-380.  This is one example of inadequate evaluation of the road alternatives and seems to be another attempt to justify the already chosen preferred alternate.

                                                                                                                       

The current draft SEIS states (p. 2-5) that one of the reasons that the Tower Terrace Road Alternative  was eliminated from consideration is that: “The alignment would impact property owned by the Linn County Conservation Board east of the Cedar River.” The property referred to is not under the jurisdiction of the Conservation Board and provides another example where the IDOT has not taken the time and effort to adequately study the alternatives and accurately ascertain the full and complete

 

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impacts of all the alternatives contained in the current draft SEIS. In this regard, the draft SEIS is inadequate and seriously flawed. It is alternate one (preferred route) that should be eliminated from consideration because there is no doubt that this alternate will cause significant impact to and irreparable destruction of the Rock Island Botanical Preserve and its surrounding natural areas.

                                                                                                             

Section 2.3.2.6 (pg. 2-8) of the DSEIS states: “… the Linn County Conservation Board suggested an

alternative which would utilize the Blairs Ferry Road alignment to cross the Cedar River, continuing

along Blairs Ferry through the community of Palo…” This statement is not accurate. The Conservation Board has been very careful to avoid providing this kind of information since it recognizes this as the responsibility of transportation planners to evaluate other alternatives.

 

SECTION 3 – AFFECTED ENVIRONMENT

 

3.9.3 CEDAR RIVER TO EDGEWOOD

This section of the current draft SEIS fails to recognize the presence and importance of prairie areas to the north and west of Rock Island Preserve. These prairie areas were addressed specifically in a letter dated 11/1/2000 from the Iowa Department of Natural Resources (DNR) to the Iowa Department of Transportation (IDOT). The IDOT failed to perform adequate inventory/survey on these prairie areas, not only for the state-threatened Byssus skipper, but also for any other plant or animal which might also be entitled to protection under state or federal law. Therefore this information is not included in the draft SEIS after being directed to do so by the DNR in November 2000. The IDOT, in what appears to be an after-thought, decided to conduct a follow-up study in mid to late August 2001 of these areas after the SEIS was approved for release by FHWA and published. All environmental studies were to have been completed in accordance with the National Environmental Policy Act (NEPA) prior to publication of the draft SEIS and therefore the draft SEIS may be legally defective.

 

3.11.10.1 MORGAN CREEK PARK

This section of the draft SEIS acknowledges the acquisition of 125 acres of land by the Linn County Conservation Board in 1994 (it was actually 1995) with funding assistance from the Federal Land and Water Conservation Fund program. The draft fails to address the significance of the Land and Water Conservation Fund and the obligations and Federal Section 6(f) provisions that apply to the Morgan Creek Park properties. The draft SEIS further fails to determine what those Sections 6(f) impacts and mitigation may be and therefore the draft SEIS may be legally defective.

 

3.11.10.2 ROCK ISLAND PRESERVE

This section of the draft SEIS states that the Rock Island Botanical Preserve has been protected due to its diversity of rare prairie plants. Not only is it protected because of its diversity of rare plants, the Preserve consists of 23 acres encompassing two unique habitats – a sand prairie and an associated savanna together with a high quality palustrine wetland. Sand prairie savannas are so rare that ecologists throughout the Midwest have been trying to re-establish former savanna habitat that has been destroyed. This Preserve is one of the few in the state that has an intact savanna, along with many of the organisms (plants and animals) that live there. The land constituting the Preserve was acquired as a gift from the Rock Island Railroad Company. The deed restriction stated: “This tract is to be kept inviolate as a botanical and biological preserve for its educational and scientific value, its beauty, and for its potential as a wildlife preserve.” In addition, the 1979 FEIS recognizes the Preserve as a “recreation area” near the proposed highway 100 project.

 

 

 

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The DSEIS fails to consider that preserves such as Rock Island Botanical Preserve are to be given the highest degree of protection from intrusions of this nature. As part of the Iowa Preserve System, the Rock Island Botanical Preserve has been given special protected status under Iowa Code Chapter 465C.  That law defines a “preserve” as an area “which has unusual flora, fauna, geological, archeological, scenic or historical features or scientific or educational value.”

 

Factual information regarding the Rock Island Botanical Preserve are set forth herein in an Affidavit submitted by Dan L. Biechler, Director for the Linn County Conservation Board. (Refer to Attachment E)                                

 

 Section 365C.11 declares:  “An area designated as a preserve within the system is hereby declared put to its highest, best and most important use for public benefit.”  This section further states that preserve land “shall be held in trust” for the benefit of the people of Iowa. It also states that the Articles of Dedication of such land may not be amended without a finding by the State Preserves Advisory Board that the amendment “will not permit an impairment, disturbance or development of the area inconsistent with the purposes of Chapter 465C.”The IDOT and FHWA have failed in their obligation to use all possible efforts to preserve the Rock Island Preserve.                                                         

                                                                                                                                             

The draft SEIS states that no master plan has been prepared for the Preserve. There is no relevance for the IDOT to make this statement. What is IDOT’s definition of a master plan? There is no state law, which requires such a plan.  The management of the Preserve; however, is and has been guided by the Articles of Dedication (management plan) approved by the State of Iowa at the time the Preserve was placed in the State Preserves system in 1978.

 

SECTION 4 – ENVIRONMENTAL CONSEQUENCES

 

4.3.5.1    WOODLANDS

 

The draft SEIS contains uncertain and vague discussions concerning impacts on woodlands.  It asserts: “Highway construction may (emphasis added) compromise foraging habitat for wildlife and impede their movement through forested corridors.”   The IDOT is not qualified to make any determination regarding woodlands because they have not conducted the necessary studies to substantiate the direct and cumulative impacts of this highway on woodlands.

                                                                                                                                   

4.3.5.2    PRAIRIES

 

The draft SEIS contains uncertain and vague discussions concerning impacts on prairies.  There is reference to the 2-acre prairie tract north of the abandoned railroad tracks and east of the Cedar River.  It states: “A butterfly survey has not been undertaken on this tract; however, habitat is suitable for the byssus skipper.” This implies that the Byssus skipper may or may not live there. The fact that a butterfly survey was not taken is another example of a blatant omission by the IDOT to conduct extensive plant and animal surveys, especially after being directed to do so for the Byssus skipper by the Iowa Department of Natural Resources in a letter dated 11/1/2000. The IDOT, in what appears to be an after-thought, decided to conduct a butterfly survey in mid to late August 2001. This was well after the draft SEIS was approved for release by the FHWA and published. The late-summer study was commissioned after a local lepodopterist discovered a significant number of the threatened Byssus skipper within the proposed highway corridor.

 

 

 

 

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Section 3.11.7.1 entitled “Prairies” provides a list of six species of plants, one reptile, and a “variety of songbirds”. The fact is, Rock Island Botanical Preserve is a diverse community of plant and animal species numbering in the hundreds. That the DSEIS provides such an abbreviated list underscores the fact that the Rock Island Preserve received only cursory review at best. The IDOT has failed to conduct any inventory or evaluation of the plant and animal species and the potential impact on them from the highway project at Rock Island Preserve as requested by the Linn County Conservation Board in 1999. 

 

The IDOT is not qualified, and is therefore unable to make determinations regarding most of the plant and animal species located on the Rock Island Botanical Preserve and the surrounding area. This is because they have not made any effort to do a complete nature study/inventory as requested by the Conservation Board in April of 1999.  Furthermore it fails to take into consideration that the hydrology in the area of the original prairie remnant, while probably not impacting the wetlands to the south, does support plant species consistent with a dry upland prairie savannah.  Notably these prairie plant species are unique in the enormous tonnage of root material they contain, extending to depths of 5 to 20 feet, easily able to reach the groundwater flows at 5 to 10 feet peaking at 15 feet in the immediate area.  (See Appendix D. Hydrogeologic Study: Rock Island Preserve figures 5 and 6.)  Any disruption of these groundwater flows by the actual roadway or construction will doom this native prairie tract and is certainly a constructive use.

                                                                                                                                               

4.3.5.3.    WILDLIFE

 

The draft SEIS is vague and fails to provide adequate information to ascertain the impacts on wildlife.  It states: “West of the Cedar River, the recommended corridor alternative may [emphasis added] impact wildlife attempting to move through the project area for foraging or breeding purposes. The proposed roadway could [emphasis added] present a migration barrier for mobile species such as butterflies, …”  “East of the Cedar River, the abandoned railroad embankment may [emphasis added] act as a barrier for some species’ migration.”  Which species are impacted?

 

The draft also states: “To minimize the impact of the proposed facility, fencing would be erected along the length of the project at the proposed right-of-way line to reduce the potential for some species to enter the highway corridor.”  Which species?  Are we impeding travel of certain species such as frogs and salamanders, which could have a deadly “traffic conflict”?  Again, IDOT has not conducted the necessary studies to make any determinations regarding the impacts on animal species located on the Rock Island Preserve or the surrounding areas.

 

Significant adverse impacts on wildlife from highways is substantiated in a letter dated August 5, 2001 (See attachment F) from Diana Horton, Associate Professor of Biological Sciences at the University of Iowa. She writes: “The best available summary of this research is in RICHARD T.T. FORMAN AND LAUREN E. ALEXANDER, ROADS AND THEIR MAJOR ECOLOGICAL EFFECTS, 29 ANNUAL REVIEW OF ECOLOGY AND SYSTEMATICS 207-231 (1998).” Ms. Horton writes in pertinent part: “Forman and Alexander summarize the impacts from vehicle disturbance on species near roads (pp. 214-215). They indicate that the most important impact is typically noise, which has been documented to have a significant adverse effect on bird species as far away as nine-tenths of a kilometer…”.  Therefore, significant adverse impacts to wildlife in the Rock Island Preserve and in areas along the proposed highway corridor are likely.            

 

 

 

 

 

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4.3.6.2    STATE LISTED SPECIES

 

The draft SEIS acknowledges that the byssus skipper is a state-threatened species, which has been found at the Rock Island Botanical Preserve.  The draft also states that a butterfly survey was not conducted on a 2-acre prairie located north and west of the Preserve but assumes that the byssus skipper to be present in this location.  It claims: “This prairie will be impacted directly by the recommended alternate.”  The draft also states: “The Preserve is not within the footprint of the recommended alternative; however, impacts to the byssus skipper may (emphasis added) include severance of dispersal routes, increased skipper mortality resulting from automobiles, roadside herbicide application, and increased air pollution.” 

 

As noted above, the byssus skipper, on the state’s threatened species list, stands directly in the path of   the proposed route.  Section 481B.5 prohibits the taking of a threatened species.  Taking is defined as including harming the species.  This proposed action will undoubtedly harm the byssus skipper by, among other things, increasing collision deaths with automobiles, as well as fragmenting and destroying habitat.  The federal prohibition on harming species has been interpreted to include the destruction of habitat, with the Supreme Court’s approval.  Sweet Home Chapter v. Babbitt, 515 U.S. 687 (1995).  This proposed action would therefore violate the state threatened species provisions.  The Draft SEIS does not resolve this violation.

 

The Draft SEIS proposes that damage can be avoided by simply re-locating the byssus skipper.  Such a proposal is not only ludicrous from the standpoint of science, since the skipper requires certain types of vegetation to survive but is also contrary to the law.  Iowa Code 481B.8 provides for a very narrow possibility of moving a threatened species.  A permit to do so may be granted only: “Upon good cause shown and where necessary to reduce damage to property or to protect human health.”  This action does not in any way meet these stringent criteria and the Board would oppose vigorously any attempt to capture these creatures and re-locate them to inferior habitat.

 

 

4.3.7          PUBLIC USE LANDS

 

The draft SEIS contains an uncertain and dire view of the future of the Rock Island Preserve.  (p.4-41):

 

“…the loss of undeveloped land adjacent to the public use land makes them at once more valuable from an open space and habitat perspective and more vulnerable.  Facilities like Rock Island Preserve will become islands of ‘undisturbed’ habitat in largely developed areas.  What this means for the natural communities that they support is not clear.  It is likely that the continued habitat fragmentation associated with planned growth of wildlife and plant communities will result in less diverse natural communities in places like Rock Island Preserve as plant and animal communities decline in number and/or move to less developed areas.” 

 

The draft SEIS further predicts the demise of the Preserve  (p. 4-42): “The Iowa 100 project is expected [emphasis added] to contribute to the reduced “naturalness” of the Rock Island Preserve area which began with railroad constructions and continued with the high school and residential development.” Note: It should be pointed out that the reason why Rock Island preserve exists today is because of the Rock Island Railroad Company donating the property to the Linn County Conservation Board because of the site’s unique natural qualities.

 

 

 

 

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That the draft SEIS would forecast such a dim future about the Preserve (the full extent of which will be made much worse by constructing the proposed roadway while claiming no “constructive use”, or ascertaining what plants and animals are being impacted), shows extreme willful neglect on the part of the Iowa Department of Transportation.

 

The draft SEIS’s dire forecast for the Preserve also shows the “significance” of the impact of the proposed highway on the Preserve.  The Council on Environmental Quality’s regulations state: “significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment.”  (40C.F.R. Section1508 (b)(7)) This draft SEIS essentially forecasts the Preserve’s ultimate demise while failing to recognize that such a fate will constitute a constructive use and have a cumulatively significant impact.

 

 

4.3.7.2    TRAFFIC NOISE INVESTIGATIONS AT THE ROCK ISLAND PRESERVE

 

 Noise impacts would be substantial. The noise study dated July 2000 commissioned by the Iowa Department of Transportation and prepared by CH2MHILL, confirms that there will be substantial impairment to the Rock Island preserve due to the projected noise levels from the proposed highway project. This also confirms the need for a Section 4(f) evaluation as mandated by Federal law. The noise study is flawed in that it appears that an arbitrary determination was made, without consultation with the Conservation Board, that the Rock Island Preserve be designated as a Category B rather than a Category A property. This places the Preserve into a category with other municipal and county parks that typically experience high intensive recreation use and thus a higher level of noise.

 

Research indicates that the noise levels predicted by the SEIS in the Rock Island Preserve will have major detrimental impacts on humans and wildlife.  A recent study documents the severe impact of highway noise on wildlife populations, especially birds.  See '"Predicting the effects of Motorway Traffic on Breeding Bird Populations'" ISBN 903693707 B. In a World Health Organization study, Berglund, B., & Lindvall, T. (Eds.). Community noise. Archives of the Center for Sensory Research, 1995, 2(1), 1-195, scientists recommended that noise be kept under 55 dB to prevent serious annoyance to humans.  Moderate annoyance occurs at 50 dB, the study indicates. The noise expected from this highway will exceed the recommendation for "serious annoyance" even with sound barriers in place.  This is totally inappropriate noise pollution for an area that is supposed to be a nature preserve.

 

4.3.7.3 ROCK ISLAND PRESERVE SECTION 4(f) APPLICABILITY

 

The current draft SEIS states that the FHWA has determined that the Rock Island Botanical Preserve is not a Section 4(f) property (p.4-24). This is contrary to the 1979 FEIS that acknowledges the Rock Island Preserve as a “recreation area” near the proposed highway 100 project. Implication is that the Preserve was determined to be a Section 4(f) property at that time (p. 25). The statement in the current draft SEIS is also contrary to a letter dated 7/24/00 addressed to the Linn County Conservation Board Director from the Federal Highway Administration, which states in pertinent part:

 

          “… I would like to first dispel an apparent misunderstanding between us. I do not believe that either FHWA or the Iowa Department of Transportation (Iowa DOT) questions that the Rock Island Preserve, as a publicly owned nature preserve, qualifies as a Section 4(f) property.”

                                                                                                                         

 

 

 

 

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It remains the position of the Linn County Conservation Board that Rock Island Botanical Preserve is a Section 4(f) property and that no Section 4(f) evaluation as required by federal law has been initiated. The Board’s position regarding this matter is further addressed in its position paper dated October 10, 2001. (See Attachment D). Section 4(f) property is defined as a significant publicly owned park, recreation area, wildlife refuge or waterfowl refuge. The Preserve is appropriately placed into the wildlife refuge category. Wildlife is defined as “living things that are neither human nor domesticated” and “wild animals and vegetation”. The lands constituting the Preserve was obtained from the Rock Island Railroad in 1962 as a “primeaval” area where flora and fauna of its “small prairie tract and its adjacent bog are indeed unique.” The Conservation Board acquired the Preserve under the following deed restriction: “This tract of land is to be kept inviolate as a botanical and biological preserve for its educational and scientific value, its beauty and for its potential as a wildlife preserve.”  The Preserve is known for its extraordinary number of butterflies and skippers. A total of 63 species of these insects have been identified at this site, more than half of all such species ever recorded in the entire state of Iowa. One of the skippers found on the Preserve is Problema byssus (Byssus skipper), which is currently on the Iowa threatened species list. In addition, two other butterflies, Poanes zabulan (Zabulon skipper)

and Parrhasius m-album (White M Hairstreak) are on the Iowa special concerns list. Further, four rare plant species have been noted in the wetland, one of which, Orchidaceae Liparis loeselii, has been reported in only 7 counties since 1900. In spite of the rarity of the habitat and the protection afforded the Rock Island Botanical preserve by Iowa law, it is inexplicable that the current draft SEIS does not acknowledge this protection. The SEIS that is supposed to address environmental impacts dismisses the status of the Preserve and the need for protection. A reading of this current draft SEIS reveals that this document was prepared in order to justify the proposed Highway 100 instead of seriously evaluating environmental impacts.

 

The United States Department of the Interior is on record supporting a section 4(f) determination in it’s published letter to the Iowa FHWA, that appears in the 1979 Final EIS.  It states in pertinent part:  “Prior to the preparation of the final environmental impact statement, a draft section 4(f) determination for the golf course (Twin Pines), Preserve (Rock Island), and affected historic and cultural resources should be prepared and circulated for review.  We would be willing to reconsider our position when we are asked to review the proposed section 4(f) determination.”

                                                                                                                                         

It is little wonder that the United States Environmental Protection Agency in their letter responding in this same 1979 Draft SEIS, awarded the document an ER-3 rating, claiming it had “significant environmental evaluation deficiencies.”  Current rating standards today call the level 3 “inadequate”.  Interestingly this is the same document that has received, in year 2001, little more than an elaborate face lift, an almost identical preferred alternative, a newly tailored “purpose and need”, no Section 4(f) determination for the Rock Island Botanical Preserve, a new cover, and an $86 million price tag.

 

 

 

4.5   CUMULATIVE IMPACTS (pgs. 4-38  -  4-42)

 

The Draft SEIS is deficient in that it does not address indirect or cumulative effects at all.  The CEQ regulations state that the EIS must analyze indirect effects, which are defined as those: caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

 

 

 

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In addition, cumulative effects are not analyzed.  According to 40 C.F.R. 1508.7, the EIS must analyze "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions."  This document does not in any way consider the other development, both past and foreseeable future, which will impact the Rock Island Preserve, and how the impacts of this road project, such as noise and habitat effects, will loom larger when added to those impacts.

 

40.C.F.R. 1508.8 The draft SEIS does not examine in any way the sprawl effects this road would undoubtedly induce.

 

Additional comments regarding cumulative impacts are found in the Conservation Board’s position paper dated October 10, 2000 and made a part hereof. (Refer to Attachment D)

 

4.6.4 WILDLIFE EFFECTS (page 4-43)

 

The draft SEIS states that the Iowa DOT would be required to obtain a permit from the Iowa DNR for the unavoidable encroachment into probable habitat for the byssus skipper. It further states:  “To mitigate potential impacts to the skipper, the Iowa DOT has developed a conceptual mitigation plan that will be refined as the design phase continues (emphasis added) with input from the Iowa DNR”  Why wasn’t this mitigation plan included in this draft SEIS so that the reader could ascertain the adequacy of such plan? It is interesting to also note that highway design work on the pre-determined chosen alternative continued prior to the environmental document being released and still continues. Just another indication that there never was a serious consideration given to any other alternative.

 

The draft SEIS states that one potential mitigation site is located adjacent to Rock Island Preserve. The City of Cedar Rapids currently owns this parcel.  Local butterfly experts say that it would be virtually impossible to capture any appreciable percentage of the Byssus skippers that were found within the proposed highway corridor. They also indicate that those skippers would probably not be able to exist on anything other than the type of native prairie on which they are now living. The city-owned property referred to in the draft SEIS is a particulary unsuitable habitat (steep, rocky and heavily wooded) for most butterflies or skippers.

 

The IDOT indicates that it will mitigate the byssus skipper situation by obtaining a permit from the DNR to remove the skippers and their habitat.  This permit must be pursuant to a section of the Iowa endangered species law – Iowa Code section 481B.8.  This code section provides: “Upon good cause shown and (emphasis added) where necessary to reduce damage to property or to protect human health, endangered or threatened species found on the state list may be removed, captured, or destroyed, but only pursuant to a permit issued by the director.”  Use of the word “and” in the first line indicates that

there are two separate and distinct requirements to obtaining a permit under section 481B.8. The first is “good cause”. The second is that the removal, capture, etc. of the threatened species (in this case Byssus skipper) must be necessary either to 1) reduce damage to property; or 2) to protect human health. Removing the Byssus skipper obviously is not going to reduce property damage. Indeed, such an act would lead to the destruction of the prairie remnants in the corridor, which are themselves endangered. Protecting health has nothing to do with the highway project. Therefore, a permit for removal of the skippers in this instance cannot be issued.

 

 

 

 

 

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SECTION 5 – COMMENTS AND COORDINATION

 

The DSEIS provides that the Linn County Conservation Board was included in a scoping meeting on September 13, 1999. The SEIS states in pertinent part: