UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CORRIDOR ALTERNATIVE

v.

SLATER, RODNEY


97-5301a

D.C. Cir. 1999


*	*	*


Buckley, Senior Judge: Corridor H Alternatives, Inc., and  several
other environmental and public interest groups (col- lectively, "CHA")
challenge a highway project in West Virgi- nia that had been developed
and approved by various federal  and state agencies. Specifically,
they assert (1) that the  Federal Highway Administration violated the
Department of  Transportation Act by failing to identify all the
historic sites  it was charged with protecting prior to its decision
approving  the route of the proposed highway and by erroneously con-
cluding that the highway would not "use" two of the sites it  did
identify; and (2) that the agency violated the National  Environmental
Policy Act by failing to give adequate consid- eration to the
improvement of existing roads as an alternative  to the construction


The district court held that the agencies had complied with  both
statutes. Because we conclude that the Federal High- way
Administration was required to identify the historic sites  that might
be at risk before it issued its decision approving  the highway's
proposed route, we affirm in part and reverse  in part with
instructions to the district court to remand the  matter to the


I. Background


Congress enacted the Appalachian Regional Development  Act of 1965, 40
U.S.C. app. ss 1 et seq. (1994), in order to 


stimulate economic development in Appalachia by providing  the "basic
facilities" that were believed essential for the  region's growth.
These facilities were to include an "Appala- chian development highway
system" and a supporting net- work of local access roads. See id. ss
2(a), 201(a).


Congress assigned responsibility for planning the new sys- tem to the
Appalachian Regional Commission, which is com- posed of
representatives of the Federal Government and the  participating
States. Id. s 101(a). The Commission was  directed to designate
"general corridor locations and termini  of the development highways."
Id. s 201(b). Pursuant to  this authority, the Commission approved a
plan for a 13-state  regional highway system that called for the
establishment of  23 corridors, each of which would contain a highway
that  would permit anticipated traffic to proceed in safety between 
major termini at an average speed of 50 miles per hour,  commensurate
with the terrain. See Joint Appendix ("J.A.")  at 289, 486.


The Commission did not map the corridors; it merely  identified their
terminal points. The task of determining  their exact routes was left
to the Federal Highway Adminis- tration ("FHWA" or "Administration")
and the affected  states. In the case of Corridor H, which is the
subject of this  litigation, the Commission merely established that it
was to  extend from Interstate 79 ("I-79") near Weston, West Virgi-
nia, eastward to Interstate 81 ("I-81") near Strasburg, Virgi- nia.
J.A. at 455.


Between 1982 and 1994, a 40-mile section of the new  Corridor H highway
was built from its I-79 terminus to a  point just west of Elkins, West
Virginia. In 1996 the State of  Virginia decided to withdraw from the
project, with the result  that the eastern terminus is now located in
West Virginia just  west of its border with Virginia. The present plan
calls for  the building of approximately 100 more miles.


Federally funded highway projects must comply with a  number of
statutory requirements. Those relevant here are  section 106 of the
National Historic Preservation Act, codified  at 16 U.S.C. s 470f
(1994) ("section 106"); section 4(f) of the 


Department of Transportation Act, codified at 49 U.S.C.  s 303 (1994)
("section 4(f)"); and the environmental impact  analysis mandated by
the National Environmental Policy Act,  42 U.S.C. ss 4321 et seq.
(1994) ("NEPA").


Section 106 of the National Historic Preservation Act pro- vides that
before a federal agency may authorize the expendi- ture of funds for a
federal or federally assisted undertaking,  it must first consider the
effects of such an undertaking on  "any district, site, building,
structure, or object that is includ- ed in or eligible for inclusion
in the National Register." 16  U.S.C. s 470f.


The U.S. Department of Transportation regulations imple- menting
section 106 establish three steps that an agency must  take in order
to comply with section 106. First, the agency  must identify the
properties that are listed or eligible for  listing in the National
Register. 36 C.F.R. s 800.4 (1998).  Next, it must evaluate the
effects of the proposed undertak- ing on those properties. Id. s
800.5. Finally, if the agency  determines that the project would have
an adverse effect on a  historic property, it must consider measures
to mitigate the  potential damage. Id.


Section 4(f) of the Department of Transportation Act states  that the
Secretary of Transportation


may approve a transportation program or project ...  requiring the use
of ... land of an historic site of  national, State, or local
significance ... only if--


(1) there is no prudent and feasible alternative to  using that land;
and


(2) the program or project includes all possible plan- ning to minimize
harm to the ... historic site resulting  from the use.


49 U.S.C. s 303(c). The Secretary has delegated this respon- sibility
to the FHWA. 49 C.F.R. s 1.45(4) (1997). The  FHWA's regulations
implementing section 4(f) identify the  historic sites that are
subject to the section as "all properties  on or eligible for the
National Register of Historic Places."  23 C.F.R. s 771.135(e) (1998).
Because the historic proper-


ties protected by section 106 are similarly defined, it follows  that
the agency must complete its section 106 determinations  before it can
comply with section 4(f).


The National Environmental Policy Act requires that an  environmental
impact statement ("EIS") be prepared for any  "major Federal action[ ]
significantly affecting the quality of  the human environment." 42
U.S.C. s 4332(C). The EIS  must include, among other things,


a detailed statement ... on--


(i) the environmental impact of the proposed action,


(ii) any adverse environmental effects which cannot  be avoided should
the proposal be implemented, [and]


(iii) alternatives to the proposed action....


Id. In a case requiring an EIS, the agency must prepare a  "concise
public record of decision" that identifies all the  alternatives it
has considered and describes all the factors it  has taken into
account in reaching its decision. 40 C.F.R.  s 1505.2 (1998).


The U.S. Department of Transportation, the FHWA, and  the West Virginia
Department of Transportation ("WVDOT")  (collectively, "the agencies")
began planning for the Corridor  H project in the late 1970's. They
produced a draft environ- mental impact statement in 1981 but
suspended work on the  project until 1990. They then decided to
proceed with the  environmental review in two stages, each of which
resulted in  the issuance of a draft EIS.


The first of these, the Corridor Selection Draft EIS  ("CSDEIS"), was
issued by WVDOT in 1992. It was con- cerned with the demarcation of
the actual 2,000-foot-wide  route that Corridor H would take from
Elkins, West Virginia,  to its eastern terminus, which was then
located on I-81 in  Virginia. In conducting this review, WVDOT
considered five  alternatives, including: the construction of a new
four-lane  highway (the "Build Alternative"), improvements of existing
 two-lane roads (the "Improved Roadway Alternative"), and  the
self-described "No Build Alternative." It concluded that  only the
Build Alternative and the No Build Alternative 


merited more detailed evaluation because the Improved  Roadway
Alternative would not be able to achieve the pro- ject's speed and
safety objectives. J.A. 292.


The second study, the Alignment Selection Draft EIS  ("ASDEIS"), was
completed two years later, in 1994. Its  purpose was twofold: to
evaluate the environmental impact of  numerous 200- to 250-foot-wide
"alignments" of the highway  itself, i.e., the actual ground within
Corridor H that the  proposed four-lane highway would occupy, and to
reexamine  the Improved Roadway Alternative. WVDOT issued its Fi- nal
EIS ("FEIS") on April 8, 1996, establishing the bound- aries of
Corridor H and reaffirming its decision to proceed  with the four-lane
Build Alternative.


The FEIS adopted a "Programmatic Agreement," earlier  entered into by
the FHWA and the relevant historic preser- vation officials, which
established the procedures that would  be followed by the FHWA in
complying with the require- ments of section 106. The Programmatic
Agreement divided  Corridor H into 14 segments or sections and
required the  FHWA to identify the historic properties in each of them
in  the sequence set forth in the agreement, to assess the pro- ject's
impact on the properties, and to "utilize all feasible,  prudent and
practicable measures to avoid adverse effects" to  them. It also
stipulated that "[n]o work shall proceed in any  section which
precludes consideration of alternate alignments  in [s]ections where
treatment of historic properties has not  yet been finalized."
Programmatic Agreement, reprinted in  J.A. at 185-98.


Four months later, in August 1996, the FHWA issued its  Record of
Decision for the Corridor H project ("ROD"). The  ROD approved the
FEIS's selection of the four-lane Build  Alternative as the preferred
basis for the project as well as  its adoption of the corridor route
and highway alignments  favored in the CSDEIS and ASDEIS, as modified
to avoid  the constructive use of the Corricks Ford and Moorefield 
Civil War battlefields. The FHWA concluded that by virtue  of these
modifications, the highway would not "substantially  impair" the


The ROD also incorporated the Programmatic Agreement's 
segment-by-segment approach to compliance with section 106.  In
recognition of the fact that the section 4(f) process could  not be
completed prior to the identification of the protected  historic sites
pursuant to section 106, the ROD specified that  its approval of the
project was conditional only and would not  become final, as to any
section of the corridor, "until the  Section 106 process has been
completed for that section and  for any immediately adjacent
section(s)." Record of Decision  at 16, reprinted in the J.A. at


CHA challenged the approval of the Corridor H project in  district
court. In considering the parties' cross motions for  summary
judgment, the court observed that both parties had  advanced
reasonable arguments in support of their respective  positions; but
because of the deference due to agency deci- sions that are not
arbitrary or capricious, the court felt  obliged to grant summary
judgment in favor of the agencies  on all counts of the complaint. See
Corridor H Alternatives,  Inc. v. Slater, 982 F. Supp. 24, 35 (D.D.C.


II. Discussion


On appeal, CHA argues that the FHWA (1) violated section  4(f) both by
deferring the investigations of the historic sites  until after the
issuance of the ROD and by adopting the  Programmatic Agreement's
incremental, segment-by-segment  approach to implementing the section;
(2) acted arbitrarily  and capriciously and contrary to section 4(f)
when it deter- mined that the project would not substantially impair
the two  Civil War battlefields; and (3) violated NEPA by rejecting 
the improvement of existing two-lane roads as a reasonable 
alternative to achieving the objectives of Corridor H. We  address
these claims in turn.


A.Section 4(f)


FHWA regulations establish the procedures that must be  followed in
complying with section 4(f). We defer to the  FHWA's interpretation of
its regulations unless "it is plainly 


erroneous or inconsistent with the regulation itself." Canadi- an Am.
Oil Co. v. NLRB, 82 F.3d 469, 473 (D.C. Cir. 1996).


CHA and the agencies base their cases on different sec- tions of the
regulations. In support of their claim that the  FHWA is required to
complete the section 4(f) process for the  entire Corridor H project
before issuing the ROD, CHA cites  sections 771.135(b) and (l) of the
agency's regulations. Sec- tion 771.135(b) directs that


[a]ny use of lands from a section 4(f) property shall be  evaluated
early in the development of the action when  alternatives to the
proposed action are under study.


23 C.F.R. s 771.135(b) (1998) (emphasis added). Section  771.135(l)
(1998) provides that in cases requiring the prepara- tion of an EIS,
the agency "will make the section 4(f) approv- al either in its
approval of the final EIS or in the ROD." Id.  s 771.135(l) (emphasis


The agencies, on the other hand, contend that sections  771.135(m) and
(n) permit the FHWA to prepare separate 4(f)  evaluations after it has
issued the ROD. Section (m) states in  relevant part:


Circulation of a separate section 4(f) evaluation will be  required
when:


(1) A proposed modification of the alignment or design  would require
the use of section 4(f) property after the  ... draft EIS, or final
EIS has been processed;


(2) The Administration determines, after processing  the ... draft EIS,
or final EIS that section 4(f) applies to  a property;


(3) A proposed modification of the alignment, design,  or measures to
minimize harm (after the original section  4(f) approval) would result
in a substantial increase in the  amount of section 4(f) land used, a
substantial increase in  the adverse impacts to section 4(f) land, or
a substantial  reduction in mitigation measures; or


(4) Another agency is the lead agency for the NEPA  process, unless
another [Department of Transportation]  element is preparing the
section 4(f) evaluation.


23 C.F.R. s 771.135(m) (1998). Section (n) continues:


If the Administration determines under s 771.135(m)  or otherwise, that
section 4(f) is applicable after the ...  final EIS has been
processed, the decision to prepare and  circulate a section 4(f)
evaluation will not necessarily  require the preparation of a new or
supplemental envi- ronmental document.


23 C.F.R. s 771.135(n) (1998) (emphasis added). The agen- cies argue
that while subsection (n) requires the FHWA to  issue a separate
section 4(f) evaluation in any of the four  circumstances listed in
section (m), it does not state that  these are the only circumstances
in which a separate 4(f)  evaluation is permitted. They then point to
the phrase "or  otherwise" in subsection (n) which, they claim, would
be  meaningless if it did not permit separate analyses under 
circumstances other than those described in the prior subsec- tion.
Thus, they maintain, the regulations permit the FHWA  to use a
"separate evaluation" in this case.


This argument is more resourceful than persuasive. Be- cause they do
not claim that any of the four situations  described in subsection (m)
apply here, the agencies are  asking us to give greater weight to
their creative interpreta- tion of "or otherwise" than to the
crystalline command, in  subsections (b) and (l), that the 4(f)
evaluations be made while  "alternatives to the proposed action are
under study" and  that the FHWA complete the 4(f) process no later
than in the  ROD. Id. s 771.135(b), (l). While deference is normally
due  an agency's interpretation of its own rules, that is not the 
case where "an alternative reading is compelled by the regu- lation's
plain language." Thomas Jefferson Univ. v. Shalala,  512 U.S. 504, 512
(1994) (internal quotation marks omitted).  It is hard to imagine less
ambiguous directives than those on  which CHA relies.


Nor are we impressed by the agencies' remaining argu- ments. They
assert that their sequential, segment-by-segment  approach is
authorized by subsection (o) of the regulations,  which provides in
relevant part:


(o) An analysis required by section 4(f) may involve  different levels
of detail where the section 4(f) involve- ment is addressed in a
tiered EIS.


(1) When the first-tier, broad-scale EIS is prepared,  the detailed
information necessary to complete the sec- tion 4(f) evaluation may
not be available at that stage in  the development of the action. In
such cases, an evalua- tion should be made on the potential impacts
that a  proposed action will have on section 4(f) land and wheth- er
those impacts could have a bearing on the decision to  be made....


(2) A section 4(f) approval made when additional de- sign details are
available will include a determination  that:


(i) The preliminary section 4(f) determination made  pursuant to
paragraph (o)(1) of this section is still val- id.... 


23 C.F.R. s 771.135(o) (1998).


This section permits a preliminary, first tier 4(f) determina- tion in
circumstances where the unavailability of critical infor- mation
precludes the completion of the kind of evaluation  section 4(f)
requires. Even then, the validity of the final,  second tier 4(f)
approval is dependent on the ability of the  agency to affirm that the
preliminary determination remains  valid. Here, however, the agencies
have failed to make even  the preliminary section 4(f) determination
subsection (o)(1)  requires.


Finally, we also reject the agencies' contention that section  771.105
of the regulations authorizes post-ROD compliance  with section 4(f).
Section 771.105 sets forth the FHWA  policy that "[t]o the fullest
extent possible, all environmental  investigations ... be coordinated
as a single process...." 23  C.F.R. s 771.105(a) (1998). While there
is obvious merit to 


coordinating environmental reviews of the kind required by  NEPA and
section 4(f), we do not read section 771.105 as  authority for the
agencies to disregard the explicit require- ment, in sections
771.135(b) and (l), that they complete the  section 4(f) process
before the FHWA issues the ROD.


Because we conclude that the agencies have failed to  comply with
section 4(f), we need not address their finding  that Corridor H will
not "use" the Corricks Ford and Moore- field Civil War Battlefields.


B.NEPA


CHA also claims that the ROD failed to comply with  NEPA's requirement
that adequate consideration be given to  the Improved Roadway
Alternative ("IRA"). The agencies  respond that they sufficiently
evaluated the IRA and decided  that it could not meet the needs of the


At "the heart of the environmental impact statement," 40  C.F.R. s
1502.14 (1998), is the requirement that it identify  the reasonable
alternatives to the contemplated action and


present the environmental impacts of the proposal and  the alternatives
in comparative form, thus sharply defin- ing the issues and providing
a clear basis for choice  among options by the decisionmaker and the
public.


Id. The statute, however,


directs agencies only to look hard at the environmental  effects of
their decisions, and not to take one type of  action or another, [and
we] correspondingly enforce the  statute by ensuring that agencies
comply with NEPA's  procedures....


Citizens Against Burlington, Inc. v. Busey IV, 938 F.2d 190,  194 (D.C.
Cir. 1991). We have recognized that a "rule of  reason" applies both
to an agency's identification of the  available alternatives and to
its examination of their relative  merits, and we have declared that
we will defer to its conclu- sions "so long as the alternatives are
reasonable and the  agency discusses them in reasonable detail." Id.
at 196.


We are satisfied that the agencies have met NEPA's "hard  look"
requirement and that they have adequately supported  their
determination that the IRA would not advance Con- gress's goal of
providing West Virginia with the "basic facili- ties" essential for
its economic growth. See Appalachian  Regional Development Act of
1965, 40 U.S.C. app. s 2(a). In  section II of the CSDEIS, entitled
"Alternatives Considered,"  the WVDOT reviewed the merits and
deficiencies of five  alternatives, including the No Build
Alternative, the four-lane  Build Alternative, and the IRA in light of
Congress's objec- tive of developing a regional highway system and the
design  standards established for the system by the Appalachian 
Regional Commission. In its review of the IRA, the WVDOT  discussed in
detail the reasons why that alternative could not  adequately address
issues such as roadway deficiencies, safe- ty considerations, and
regional system linkage. We therefore  defer to the agencies' decision


III. Conclusion


We hold that the plain language of section 4(f) regulations  771.135(b)
and (l) requires the agencies to complete the  section 4(f) process
prior to the issuance of an ROD fixing the  route of the proposed
four-lane highway. We also find that  the agencies took the "hard
look" at the IRA that is required  by NEPA. For these reasons we
affirm in part and reverse  in part the district court's grant of
summary judgment for the  agencies, and we direct the court to return
the matter to the  agencies with instructions to complete the section
4(f) process  before proceeding further with the Corridor H project.


So ordered.