05/09/08
A permit issued by the Kansas Department of Transportation on Tuesday gives the go ahead for the 32nd Street Alignment of the South Lawrence Trafficway.
If constructed, the road will pave through a 56-acre patch of the Baker Wetlands, but Douglas County attorney Bob Eye plans to pounce on KDOT and the Federal Highway Administration with a lawsuit before that happens.
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“I’m working on it as we speak,” Eye said. “We are not all surprised by this, and we’re rounding everybody up now.”
Eye is the attorney for the Wetlands Preservation Organization – just one of an estimated 10 plaintiffs who have been planning and preparing – raising awareness and money -while waiting for the FHWA to release its record of decision. The ROD, initially expected to be released in December, is a statement officially announcing plans to act on the project. It also makes the final leg of the SLT eligible for federal funding.
The SLT is a four-lane bypass intended to alleviate Lawrence traffic congestion, minimize delays and improve regional traffic flow by providing commuters a high-speed road so they can avoid the Lawrence city streets when traveling.
“The roadway would be designed for higher speed travel,” Ron Kaufman, spokesperson for the Kansas Department of Transportation, said. “The folks who normally travel on 23rd Street and have to wait for traffic to come in through side streets or driveways would probably see a big benefit.”
In limbo for more than 20 years, the project has been a source of political debate and litigation since its proposal. The western leg of the bypass – which starts at I-70 west of Lawrence – was completed in 1996 but currently ends at Iowa Street. Construction of the eastern leg – designed to connect Iowa Street to Kansas Highway 10 east of Lawrence – has been stopped because of concerns about the road running through the wetlands.
Completing the SLT involves paving over 56 acres of Baker Wetlands. Baker administrators have agreed to the deal, but their decision might be undermined when Eye hauls the FHWA to court.
“If we did not believe that we had valid legal grounds to challenge the adequacy of the environmental impact statement, we wouldn’t be going forward,” Eye said. “But we’ve looked at this pretty carefully and believe that the environmental impact statement is defective.”
Federal protocolAn environmental impact statement is a document government agencies must file before launching a federally funded project affecting the environment.
“We follow what’s called the NEPA process,” Kaufman said. “It’s a law process designed to make sure the Federal Highway Administration tries to avoid, minimize or mitigate environmental impacts.”
Required by the National Environmental Policy Act, the statement must show the project meets a few key conditions: It must demonstrate that planners have considered alternatives and that the plan minimizes environmental destruction.
To plunge into the federal project, first an Environmental Impact Statement must be completed and approved. Last November, the FHWA started to limp toward construction of the eastern leg by adopting the U.S. Army Corps of Engineers’ EIS.
Many opponents, like Haskell Indian Nations University senior Erica Brown, believe the EIS in its current state violates the NEPA requirements.
“There are other routes to choose from that will not disturb the Haskell-Baker Wetlands,” she said. “The route south of the river is an option. There is plenty of room for development that could boost the Lawrence economy. Also, the complete dismissal of the SLT idea is an option.”
Alternative routesKaufman said KDOT carefully reviewed all options.
“We gave equal consideration to both routes (the south of the Wakarusa River route and 32nd Street route) and the documentation supports that,” Kaufman said. “We engaged in a process that was followed by the Army Corps of Engineers and the Federal Highway. There is a very rigorous process that’s followed to make sure that the reasonable alternatives are openly and fairly and adequately considered.”
KDOT has considered 12 different trafficway scenarios. Among the options were alignments along 31st, 32nd, 35th, 38th and 42nd streets. A no-build alternative was also considered to show what the city would look like without the trafficway.
Of those, the 32nd Street Alignment B was the only alternative considered viable, and Mike Caron, executive director of the Save the Wetlands Organization, doesn’t believe KDOT honestly examined the other routes. He believes KDOT falsely inflated the price of the South of the Wakarusa River Alignment, estimated to be $167 million. The cost of the 32nd Street Alignment is estimated at $150 million.
“They set out to prove that the 32nd Street Alignment was the only way to go,” Caron said.
Caron is confident that a judge will rule against FHWA.
Past litigationAnd it wouldn’t be the first time. In the 1990s, Eye and plaintiffs put the project on hiatus by successfully suing.
The lawsuit took place because, after completing the west leg of the SLT, the FHWA declared the east leg an independent construction project no longer eligible for federal funding. The idea was that, with FHWA’s withdrawal, the eastern leg, no longer federalized, would not have to follow federal environmental guidelines. The FHWA’s decision to abandon the project provoked a lawsuit.
“What the state and federal government did was spend all of the federal money on the west leg, and when they got to the east leg they said, ‘We’re not putting any federal money into this part of the highway project so we don’t have to comply with federal environmental laws,'” Eye said. “We challenged that, and (the courts) agreed with us and said that this so-called segmentation was not a permissible way to proceed on this project.”
Eye and his plaintiffs won the court case, and Caron believes they will again.
“Last time Federal Highway had the sense to know that if they completed their environmental impact statement and released the permits that it was going to be worse than pretending that they didn’t need the permits,” Caron said. “This 32nd Street is so much more of a monstrosity than what they were trying to do in the ’90s. I am very confident we will prevail again.”
After the last lawsuit, the FHWA bowed out of the project indefinitely, and without federal support, KDOT couldn’t finish the SLT. It lacked funding and to get that it had to gain approval from a federal agency.
Sluggish paceThe U.S. Army Corps of Engineers agreed to examine the project and, in 2003, it determined that the road through the wetlands was the most “prudent and feasible” option available.
The Army Corps of Engineers approved the east leg of the SLT and issued its EIS, endorsing the 32nd Alignment.
It wasn’t until November of 2007 that the FHWA adopted the Army Corps’ EIS, though. The project will now be hobbled by litigation and lack of funding. However, since the FHWA released the ROD, Baker University will begin receiving a sizable mitigation package designed to make up for the 56-acre loss this summer.
Baker administrators adamantly opposed the east leg of the SLT for years and didn’t agree to give up the 56-acre-patch of wetlands until KDOT came up with a satisfactory mitigation plan.
Compensation for damaged landUnder the mitigation plan, Baker will receive more than 300 new acres of land to be turned into manmade wetlands.
The plan includes $1.2 million to build a visitor’s center designed to attract more people to the site and a $5 million endowment to pay for restoration equipment and full-time positions to run the wetlands. The money won’t come at once, though. Baker administrators anticipate receiving the first payment in mid to late summer, and over the next three years Baker will receive $975,000.
Director of Natural Areas Roger Boyd said even if Eye and plaintiffs win the lawsuit, Baker would still see immediate benefits.
“The lawsuit is not about the mitigation,” Boyd said. “When I had a meeting with KDOT in early March that is one of the things we talked about: ‘Do we want to take the risk of spending this money with the chance that this road might get stopped?’ They all agreed yes; so it’s really irrelevant to Baker whether the road gets stopped.”
Mitigation is slated for September or October, depending on the weather.
Senior Sarah Romereim, a biology major and president of Earth We Are, believes the benefits of mitigation outweigh the drawbacks of destruction.
“While it’s a shame to destroy anything in nature, in this particular case, it would be better to give the wetlands a more permanent position and establish the visitor’s center,” she said. “I think it would provide a lot of opportunity for field trips, more than right now. I think they would be able to expand activity, as well as include many other events.”
Mitigation not enoughEye – who has 180 days to launch his lawsuit – disagrees with the idea of demolishing 56 acres of natural wetlands in exchange for 300 acres of manmade wetlands.
“We don’t have to destroy the wetlands in order to have an educational center to study wetlands,” he said. “They’re really asking us to give up the wetlands on the chance that mitigated wetlands, manmade wetlands, will suffice. Well, we’re not willing to take that chance.”
Eye’s been wrestling with the Baker Wetlands controversy for more than 20 years. It’s been a slithery, slippery fight, but he has yet to loosen his grip.
“Baker’s given up. They’ve engaged in defeatism. The people on our side aren’t even remotely close to rolling over, not even remotely close,” Eye said. “We’re more committed and dedicated to protecting these wetlands now than I’ve ever seen.”