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


CITY ALEXANDRIA

v.

V. SLATER, RODNEY E.


99-5220a

D.C. Cir. 1999


*	*	*


Silberman, Circuit Judge: Appellees challenged the Feder- al Highway
Administration's approval of plans to replace the  Woodrow Wilson
Memorial Bridge. The district court held  that the Administration
violated the National Environmental  Policy Act and the National
Historic Preservation Act. We  reverse.


I.


The Woodrow Wilson Memorial Bridge is a microcosm of  the Washington,
D.C. metropolitan area's traffic congestion  problems. Built in 1961,
the six-lane structure carries the  Capital Beltway over the Potomac
River, connecting the City  of Alexandria, Virginia, to Prince
George's County, Maryland;  originally intended to serve as a
Washington bypass for  interstate travelers, it became increasingly


ers as the region's population grew. As a result, traffic  volume on
the Bridge has increased to over 160,000 vehicles  per day, more than
twice the capacity the structure was  designed to accommodate;
congestion is particularly acute  during peak hours, where the
configuration of an eight-lane  Beltway feeding into a six-lane
bridge--in addition to steadily  increasing local traffic in the
surrounding communities--has  produced one of the worst rush-hour
"bottlenecks" in the  region. These congestion problems have created
harmful  collateral consequences: the heavy volume on the Bridge has 
contributed to an accident rate nearly double that of similar 
facilities in the region, and has expedited the deterioration of  the
Bridge's structure to the point where the Bridge is  projected to be


Efforts to replace the Bridge began over ten years ago,  when the
Federal Highway Administration, in cooperation  with its coordinate
agencies in Maryland, Virginia, and the  District of Columbia, began
examining alternative approaches  to solving the Bridge's capacity and
structural problems.  The Administration began to study the potential
effects of  rebuilding the Bridge on the surrounding communities early
 in the project's development, commissioning surveys of histor- ic and
archaeological resources in areas likely to be affected  by the
projects. The Commission also started the process,  mandated by the
National Environmental Policy Act (NEPA),  42 U.S.C. s 4321 et seq.
(1994), of considering the environ- mental impacts of alternative
project designs. In 1991 the  Administration issued a draft
Environmental Impact State- ment (EIS) for public comment; this
statement suggested  and compared five proposals for replacing the
Bridge. Each  of the alternatives in the draft proposed expanding the
river  crossing from six to twelve lanes, and included a similar 
expansion of the five-mile Beltway corridor approaching the  river




__________

n 1 More specifically, the project would widen the Beltway to twelve 
lanes between Telegraph Road in Alexandria and Route 210 in  Prince
George's County.


Reaction to the draft was less than enthusiastic; the Ad- ministration
was criticized for assessing inadequately the  environmental and
cultural impacts of its proposal, and for  failing to coordinate its
work with that of interested govern- mental agencies and community
groups. By its own admis- sion concerned that "a region-wide consensus
about the new  bridge had not been reached," the Administration went
back  to the drawing board. In response the Administration orga- nized
a "Coordination Committee" composed of elected and  administrative
officials from the region to enhance community  and intergovernmental
cooperation. The Committee revisited  the entire process of developing
alternative Bridge designs,  ultimately soliciting and considering
over 350 proposals from  interested individuals and organizations, and
increased the  Administration's public outreach efforts in affected
communi- ties. In the meantime, pursuant to its obligations under 
section 106 of the National Historic Preservation Act, 16  U.S.C. s
470f (1985 & Supp.), and section 4(f) of the Depart- ment of
Transportation Act, 49 U.S.C. s 303 (1997), the  Administration
continued to assess the project's potential  impacts on historic,
archaeological, and cultural resources in  the area.


In 1997, the Administration issued its Final Environmental  Impact
Statement (the "Final EIS"). The Final EIS gave  detailed
consideration to eight alternative proposals (seven  "build"
alternatives and a baseline "no build" alternative),  comparing them
on a range of criteria including vehicle  capacity, cost, and extent
of environmental impacts. As was  the case with the draft each of the
"build" alternatives  scrutinized in the Final EIS had twelve lanes;
each alterna- tive also had a lane configuration that separated local
and  express traffic, and contained a lane dedicated for High 
Occupancy Vehicle usage. The critical difference among the  proposed
alternatives was the type of river crossing; the  seven "build"
alternatives included a range of tunnel and  bridge designs. Although
the Final EIS discussed narrower  eight- and ten-lane options, it did
not afford them full treat- ment as formal "alternatives" because the
Administration  concluded, on the basis of traffic projections, that


river crossings would fall short of meeting the Bridge's long- term
traffic needs. Among the eight options the Administra- tion designated
a "Preferred Alternative" that would replace  the Bridge with two
parallel six-lane drawbridges (one draw- bridge for eastbound and one
for westbound traffic) clearing  the Potomac's navigational channel by
seventy feet at their  highest points. The Administration also
included in the Final  EIS a sixty-page "Section 4(f) Evaluation"
identifying and  offering plans to mitigate the effects of the
Preferred Alter- native and all other build alternatives on public
parks, wildlife  refuges, and historic sites.


After a brief comment period the Administration approved  the Preferred
Alternative in a Record of Decision and submit- ted, as is required by
section 106 of the National Historic  Preservation Act, a Memorandum
of Agreement evidencing  the Administration's cooperation with state
historic preserva- tion officers in identifying historic sites that
might be impact- ed. The Memorandum identified and offered mitigation
plans  for several historic sites, but it also noted that the Adminis-
tration had not yet identified properties to be used for 
"construction staging, dredge disposal, wetland mitigation, or  other
ancillary activities" during the period of the Bridge's 


The City of Alexandria filed an action in the district court 
challenging the Administration's approval of the project, and  the
district court permitted three Alexandria-based organiza- tions that
opposed the Administration's proposed alternative  (collectively the
"Alexandria Coalition" or "appellees") to  intervene as plaintiffs.
The City alleged that the Administra- tion had violated a host of
regulatory provisions, including the  National Environmental Policy
Act, section 106 of the Nation- al Historic Preservation Act, and
section 4(f) of the Depart- ment of Transportation Act.2 After both
sides had filed for  summary judgment the City of Alexandria settled




__________

n 2 The City also alleged that the Administration violated the Clean 
Air Act by failing to conduct a conformity analysis for the twelve-
lane preferred alternative. The district court agreed, but the 
Administration does not appeal this finding.


with the Administration, leaving the Alexandria Coalition as  the only
remaining plaintiffs.


The district court ruled in favor of the Alexandria Coalition.  See
City of Alexandria v. Slater, 46 F. Supp. 2d 35 (D.D.C.  1999). The
court concluded that the Administration had  violated NEPA by not
affording detailed consideration to a  ten-lane river crossing as a
"reasonable alternative" in the  Final EIS, and that the Final EIS'
treatment of the tempo- rary environmental impact of the construction
phase of the  project was too cursory to satisfy NEPA. Relying upon
our  recent decision in Corridor H Alternatives, Inc. v. Slater, 166 
F.3d 368 (D.C. Cir. 1999), the district court also determined  that
the Administration had violated section 106's require- ment that an
agency "take into account" the effects of a  proposed project on
protected historic properties by postpon- ing the identification of
the sites that were to be used for  construction-related "ancillary
activities." Because an agency  must complete the section 106
identification process before it  can satisfy section 4(f)'s
requirement that an agency use "all  possible planning to minimize
harm" to historic sites, the  court concluded that the Administration
had necessarily failed  to comply with section 4(f) as well. The
district court re- manded the project to the Administration; the
Administra- tion appealed, as it is entitled to do. See Occidental
Petrole- um Corp. v. SEC, 873 F.2d 325, 330 (1989) (when district 
court remand obliges agency to take further actions under an  arguably


II.


A.


The National Environmental Policy Act's mandate "is es- sentially
procedural," Vermont Yankee Nuclear Power Corp.  v. Natural Resources
Defense Council, Inc., 435 U.S. 519, 558  (U.S. 1978); the statute
requires that agencies assess the  environmental consequences of
federal projects by following  certain procedures during the
decision-making process. See  Citizens Against Burlington, Inc. v.


193-94 (D.C. Cir. 1991). Before approving a project, an  agency must
prepare a "detailed statement ... [on] the  environmental impact of
the proposed action, any adverse  environmental effects which cannot
be avoided should the  proposal be implemented, [and] alternatives to
the proposed  action." 42 U.S.C. s 4332(2)(C)(i)-(iii). These general
pre- scriptions are given sharper focus in the Council on Environ-
mental Quality's regulations,3 which require agencies to pre- pare
environmental impact statements; at the "heart of the  environmental
impact statement" is the requirement that an  agency "rigorously
explore and objectively evaluate" the pro- jected environmental
impacts of all "reasonable alternatives"  for completing the proposed
action. 40 C.F.R. s 1502.14.


Appellees argue, and the district court agreed, that the 
Administration violated NEPA by failing to deem a ten-lane  bridge a
"reasonable alternative" in the Final EIS. They  observe that a
ten-lane bridge would constitute a significant  improvement over the
existing six-lane structure, and would  reduce congestion with
considerably less impact on environ- mental and cultural resources
than each of the twelve-lane  alternatives compared by the
Administration. In addition to  having a narrower river crossing,
appellees point out that a  ten-lane alternative would have a smaller
construction "foot- print" along the entire five-mile stretch of the
Beltway that  will be under construction, and would require smaller
inter- changes at each of the four points of access to the Beltway in 
the project corridor. The Administration responds that the  ten-lane
alternative favored by appellees was excluded after  studies
determined that it did not meet the traffic capacity  needs of the




__________

n 3 The Council on Environmental Quality has no express regulato- ry
authority under the National Environmental Policy Act; instead,  the
Council was empowered to promulgate binding regulations by  President
Carter's Executive Order No. 11991, 42 Fed. Reg. 26,967  (1977).
Because the Administration does not challenge the Coun- cil's
regulatory authority, we treat the Council's regulations as  binding
on the agency. But see Scott C. Whitney, The Role of the  President's
Council on Environmental Quality in the 1990s and  Beyond, 6 J. Envtl.
L. & Lit. 81 (1991).


the difference between the environmental impacts of the two  projects
is less than appellees suggest; a ten-lane bridge  would impact only
1.6 fewer acres of parkland and 12.9 fewer  acres of natural resources
over the entire length of the  project corridor, and would have an
identical impact on  cultural resources.


How are the merits of appellees' argument to be assessed?  After all,
the phrase "reasonable alternative," standing alone,  offers no
guidance to a reviewing court. Something can only  be an "alternative"
by reference to something else; "the term  'alternatives' is not
self-defining." Vermont Yankee, 435 U.S.  at 551. The Council on
Environmental Quality, for its part,  does little to clarify the
baseline against which a "reasonable  alternative" is to be measured;
its regulations at times ap- pear to contrast the "alternatives" to
the "proposal," suggest- ing that the range of reasonable alternatives
are to be  selected by reference to the project implemented. See 40 
C.F.R. s 1502.14. But that approach would seem to bias the  process.
See, e.g., Calvert Cliffs' Coordinating Comm., Inc. v.  U.S. Atomic
Energy Comm'n, 449 F.2d 1109, 1114 (D.C. Cir.  1971). And even if we
were to understand an "alternative" to  be defined by reference to the
proposal actually selected, our  interpretive task would hardly be
easier, as "the adjective  'reasonable' is no more self-defining than
the noun that it  modifies." Citizens Against Burlington, 938 F.2d at


We have resolved this difficulty by evaluating an agency's  choice of
"reasonable alternatives" in light of the objectives of  the federal
action; as then-Judge Thomas put it in Citizens  Against Burlington,
"[t]he goals of an action delimit the  universe of the action's
reasonable alternatives." Id. But  that approach of course requires
that we first consider wheth- er the agency has reasonably identified
and defined its objec- tives. The agency's choice of alternatives are,
then, evaluated  in light of these stated objectives; an alternative
is properly  excluded from consideration in an environmental impact 
statement only if it would be reasonable for the agency to  conclude
that the alternative does not "bring about the ends  of the federal
action." Id. We engage in both of these  inquiries--whether an
agency's objectives are reasonable, and 


whether a particular alternative is reasonable in light of these 
objectives--with considerable deference to the agency's ex- pertise
and policy-making role. Id. at 196.


The district court's opinion suggests that the Administra- tion
improperly defined its objectives, criticizing the Adminis- tration
for narrowing its choice of alternatives "based on a set  of criteria
that focused primarily on transportation and safety  issues." City of
Alexandria, 46 F. Supp. 2d at 44. This  description of the
Administration's objectives is an accurate  one; while the "Statement
of Purpose and Need" in the Final  EIS references several objectives
(including protecting the  environment), it focuses on the region's
traffic needs. But it  hardly follows that the Administration violated
NEPA. As  mentioned above, NEPA's injunction that agencies consider 
the environmental impacts of "all reasonable alternatives"  does not
substantively constrain an agency's choice of objec- tives; to the
contrary, it is those very objectives that provide  the point of
reference for a determination whether an alterna- tive is "reasonable"
in the first place. By suggesting that the  Administration violated
NEPA because it did not sufficiently  prioritize environmental goals,
the district court subtly--and  impermissibly--transformed a
procedural statute into a sub- stantive one. See Baltimore Gas & Elec.
Co. v. Natural  Resources Defense Council, Inc., 462 U.S. 87, 97
(1983)  ("Congress in enacting NEPA ... did not require agencies to 
elevate environmental concerns over other appropriate con-
siderations.") The proper question to ask at the outset of a  NEPA
inquiry is not whether the Administration focused on  environmental
goals but rather--as we noted--whether its  stated objectives were
reasonable. It seems rather obvious  to us that it is not unreasonable
in articulating its objectives  for an agency to "focus primarily on
transportation and safety  issues" when replacing a massively
congested and structurally  unsound bridge. Cf. Corridor H, 166 F.3d
at 374 (affirming  the Administration's rejection of highway
alternatives that  did not meet the transportation and safety needs of


More in keeping with our precedent, the district court also  determined
that a ten-lane alternative was reasonable--and 


therefore should have been given greater attention--in light  of these
objectives. The district court arrived at this conclu- sion by
characterizing the Administration as "articulat[ing]  the problem as
one of addressing the future transportation  needs of the region."
"Such a broad statement of purpose  and need," the district court
explained, "hardly provides an  unequivocal basis for eliminating
ten-lane alternatives from  consideration." City of Alexandria, 46 F.
Supp. 2d at 44.  This might be so, had the Administration truly
characterized  its objectives in such general terms. But it did not.
As is  required by statute, see 23 U.S.C. s 109(b), the Administra-
tion instead focused specifically--in its Statement of Purpose  and
Need and elsewhere--on the traffic needs that will exist  twenty years
after the project's approval, and its analyses  based on 2020 traffic
projections demonstrate that a ten-lane  bridge would be insufficient.
The Administration's studies  show that appellees' preferred design (a
ten-lane configura- tion without an HOV lane) would be able to
accommodate less  than half of the per-hour capacity of the
Administration's  preferred alternative, causing peak-hour traffic
queues of  significantly greater length and extended duration;
accident  rates would also be markedly higher on a ten-lane


The district court ignored this data, instead focusing exclu- sively on
an Administration study showing that a ten-lane  bridge would be able
to accommodate up to 295,000 vehicles  per day, a number only slightly
smaller than the projected  daily traffic flow on the Bridge in 2020.
City of Alexandria,  46 F. Supp. 2d at 44. But that study apparently
assumed an  even flow of traffic throughout the day (which, of course,
is  unrealistic). Whatever the total number of vehicles that will 
cross in a 24-hour period, the relevant question is how long  during
peak commuting hours it will take to cross the bridge.  Appellees also
do not seriously challenge the Administration's  findings, instead
protesting that these studies establish little  more than the "truism
... that a ten-lane bridge would carry  somewhat less traffic than a
twelve-lane bridge." It is not  apparent to us why this proposition
has less force in the case  because it is a "truism."


Appellees' more fundamental argument is that, regardless  of its
shortcomings in satisfying future traffic needs, we must  hold a
ten-lane bridge to be a reasonable alternative in light  of our
statement in Natural Resources Defense Council, Inc.  v. Morton that
an agency should not "disregard alternatives  merely because they do
not offer a complete solution to the  problem." 458 F.2d 827, 836
(D.C. Cir. 1972). Appellees  overread Morton. In that case an
environmental group  challenged the Secretary of the Interior's
proposed sale of oil  and gas leases to submerged lands in the Gulf of
Mexico; the  Secretary sought to sell these properties as part of a
cross- agency effort, initiated by the President, to increase Ameri-
can energy supplies. We held that the Secretary's environ- mental
impact statement violated NEPA because it failed to  consider
alternatives outside of the Department of the Interi- or's
jurisdiction; we also noted that the agency could not  exclude
alternatives "supplying only part of the energy that  the lease sale
would yield." Id. at 836. This broad articula- tion of "reasonable
alternatives" was compelled by the nation- al scope of the problem
being addressed: "When the pro- posed action is an integral part of a
coordinated plan to deal  with a broad problem, the range of


Morton thus stands for the same proposition as Citizens  Against
Burlington: namely, that a "reasonable alternative"  is defined by
reference to a project's objectives. Morton  explained that, within
the context of a coordinated effort to  solve a problem of national
scope, a solution that lies outside  of an agency's jurisdiction might
be a "reasonable alterna- tive"; so might an alternative within that
agency's jurisdiction  that solves only a portion of the problem,
given that other  agencies might be able to provide the remainder of
the  solution. Such a holistic definition of "reasonable alterna-
tives" would, however, make little sense for a discrete project 
within the jurisdiction of one federal agency, as we recognized  in
Morton when we contrasted the Secretary's action with  that of
building "a single canal or dam."4 Id. Concerned 




__________

n 4 We doubt the continuing vitality of the rather expansive view of 
NEPA we expressed in Morton, since subsequent Supreme Court 


with severe traffic conditions in the Capital Region, Congress  has
authorized the Administration to replace the Woodrow  Wilson Memorial
Bridge. The Administration has sole re- sponsibility for solving this
problem; were it to build a ten- lane bridge, no one else would step
in and alleviate the  congestion that would result.5 In this context,
it is simply a  non sequitur to call a proposal that does not "offer a
complete  solution to the problem" a "reasonable alternative."


One other point merits brief discussion. In finding a ten- lane
alternative reasonable, the district court noted that the 
Administration only conducted a Clean Air Act conformity  analysis for
the use of ten lanes on the Bridge. See City of  Alexandria, 46 F.
Supp. 2d at 45. If the Administration only  expects ten lanes to be
open, the district court reasoned, how  can it fail to consider a
ten-lane bridge as a reasonable  alternative under NEPA? The answer is
that the Clean Air  Act and NEPA inquiries have different time
horizons; while a  project must show conformity with the Clean Air Act
at the  time it is approved, see 42 U.S.C. s 7506(c)(1) (1995), the 
consideration of reasonable alternatives under NEPA re- quires, as
mentioned above, an assessment of traffic needs in  2020. Accordingly
the Administration did not violate the 




__________

n cases have directly criticized us for overreading that statute's 
mandate. See Baltimore Gas & Elec. Co., 462 U.S. at 97; Vermont 
Yankee, 435 U.S. at 554; Kleppe v. Sierra Club, 427 U.S. 390 (1976). 
Morton, after all, suggested that the Secretary should have deemed  as
"reasonable alternatives" Congress' ability to reduce oil import 
quotas and the Federal Power Commission's authority to change its 
natural gas pricing policies. 458 F.2d at 835, 837. To be sure, 
Vermont Yankee cited with approval our statement in Morton  stressing
the limits of an agency's obligations under NEPA, 435  U.S. at 551,
but we wonder whether Morton's holding can be  squared with Vermont
Yankee's injunction that "the 'detailed state- ment of alternatives'
cannot be found wanting simply because the  agency failed to include
every alternative device and thought con- ceivable by the mind of


5 As the Administration determined, there are no apparent and  feasible
independent rail transit options that could be combined to a  ten-lane
bridge to satisfy transportation needs.


National Environmental Policy Act by failing to include a ten- lane
bridge proposal as a "reasonable alternative" in its Final 
Environmental Impact Statement.


B.


Once an agency identifies the "reasonable alternatives" to a  proposed
action, NEPA and Council on Environmental Quali- ty regulations also
require an agency to identify the "adverse  environmental effects" of
each alternative. See 42 U.S.C.  s 4332(2)(C)(ii); 40 C.F.R. s
1502.16. The district court  found fault with the Administration's
treatment of the tempo- rary "construction impacts" that would arise
during the peri- od that the Bridge was being built. Again, we


The district court focused on the brevity of the "Construc- tion
Impacts" section of the Final EIS, which covers only four  pages and,
according to the district court, "is of such a broad  and generic
nature that it could apply to practically any  construction project
undertaken by the [Administration]."  City of Alexandria, 46 F. Supp.
2d at 45. While the Adminis- tration's discussion might have been more
thorough, we think  the district court's assessment of the
Administration's treat- ment of these issues too harsh. The
Administration address- es a range of expected construction impacts,
including the  construction's likely effect on local traffic, air
quality, area  noise levels, water quality and wetlands, cultural
resources,  and visual effects. The level of detail of these
assessments  varies; it is worth noting, in light of the district
court's focus  on the terseness of the Administration's analysis, that
some of  the shorter analyses are the most eminently reasonable. 
Take, for instance, the Administration's discussion of traffic 
impacts. The Administration acknowledges that the con- struction
project will affect traffic flow on several Alexandria  roadways, and
may also cause potential delays in the delivery  of emergency
services. It also offers a range of mitigation  strategies: six lanes
of the Bridge will be kept open at all  times to minimize rush-hour
congestion; some access (even if  circuitously routed) will be
maintained to all roads and areas;  there will be no disruption of


the public will be notified of temporary road closings through  the
news media, the posting of signs, and the creation of a  "project
activities" hotline. Perhaps appellees would prefer  the
Administration to set forth in the Final EIS a comprehen- sive plan
detailing precisely which streets will be closed, and  which
alternative routes will be established, but that is not  mandated by
NEPA. See, e.g., Robertson v. Methow Valley  Citizens Council, 490
U.S. 332, 353 (1989) ("[I]t would be  inconsistent with NEPA[ ] ... to
demand the presence of a  fully developed plan that will mitigate
environmental harm  before an agency can act.").


We think the terseness of the Administration's discussion  of
construction impacts is justified for other reasons as well.  The
Administration typically delays the identification of "con- struction
staging" sites--locations used to store materials and  equipment
during project construction--until the design  stage of the project.
As will be discussed infra, this practice  is permissible under the
statute and is arguably required by  the Administration's governing
regulations. Since the Ad- ministration did not identify the location
of these areas, it of  course could not identify the accompanying
environmental  impacts with precision. But this does not mean that the
 Administration did not consider, on a more general level,  what those
impacts would be; the Final EIS identifies several  potential staging
areas, and notes that each of these sites are  in "previously
disturbed" areas with "minimal natural re- sources." The
Administration's brevity is particularly under- standable given the
numerous regulatory constraints that will  limit the extent of
construction activities. As the Administra- tion notes, Maryland and
Virginia require construction con- tractors to limit noise levels in
"noise sensitive areas adjacent  to the project area" to eighty
decibels--a noise level compara- ble to that currently produced by
traffic on some stretches of  the highway. Similar federal and state
regulatory provisions  require the mitigation of any short-term
construction impacts  on wetland and aquatic resources, constrain the
emissions of  dust from construction-related activities and equipment,
and  limit the Administration's selection of construction staging 


tant, as it indicates the Administration's awareness of the  maximum
impact that the construction may cause.


We also note that agencies are enjoined by the Council on  Economic
Quality to develop environmental impact state- ments that are "no
longer than absolutely necessary" and that  discuss impacts "in
proportion to their significance." 40  C.F.R. s 1502.2(b)-(c). The
Administration points out that  each of the seven "build" alternatives
would have similar  construction impacts, thus making a detailed
discussion of  each of their effects redundant. More fundamentally,
while  the disruption caused by the construction of a project as 
significant as this one is by no means trivial, it is relatively 
modest in both scope and duration when compared to the  environmental
impact of the project as a whole. To be sure,  there is a point at
which an agency's analysis ventures from  the "tolerably terse to the
intolerably mute," Greater Boston  Television Corp. v. FCC, 444 F.2d
841, 852 (D.C. Cir. 1970),  but we simply do not think that the
Administration's analysis  of construction impacts reaches that


III.


A.


The district court concluded that the Administration also  failed to
identify adequately the effect that its preferred  alternative will
have on historic resources in the project area,  as is required under
two distinct but overlapping statutes:  section 106 of the National
Historic Preservation Act and  section 4(f) of the Department of
Transportation Act. Sec- tion 106, like NEPA, is essentially a
procedural statute; it  requires that agencies "take into account the
effect of [an]  undertaking on any district, site, building,
structure, or object  that is included in or eligible for inclusion in
the National  Register [of Historic Places]." 16 U.S.C. s 470f. To
comply  with section 106, an agency must consult with state historic 
preservation officers to ensure that historic properties in the 
project area are thoroughly identified and the effects that the 
project will have on them fully assessed. See 36 C.F.R. 


s 800.4-.5.6 The usual product of this consultation process is  a
Memorandum of Agreement among the consulting parties  signifying
agreement upon how the detrimental effects will be  "taken into
account." Even where disagreement precludes  the completion of a
Memorandum of Agreement an agency  may implement a project after
receiving and considering  comments from the Advisory Council on
Historic Preserva- tion. See id. at 800.6(c).


On the other hand, section 4(f), unlike the other statutes at  issue in
this case, imposes a substantive mandate on the  Administration: It
prohibits the agency from taking an action  that "uses" a historic
resource unless there is "no prudent  and feasible alternative to
using that land" and the agency  engages in "all possible planning" to
"minimize harm" to the  sites.7 49 U.S.C. s 303(c); see also Citizens
to Preserve  Overton Park v. Volpe, 401 U.S. 402 (1971). Department of
 Transportation regulations require the Administration to  "make the
section 4(f) approval" at the same time that it  approves its final
EIS or issues its Record of Decision, 23  C.F.R. s 771.135(l); the
Administration ordinarily complies  with this requirement by
publishing a separate "Section 4(f)  Evaluation" along with its final
EIS, which identifies the  project's effects on historic properties in
the project area and  the efforts the agency has taken to mitigate
those effects. In  order to comply with 4(f)'s substantive
requirements, it is of  course necessary first to identify historic
sites in the project  area; accordingly, we have observed that
compliance with  section 4(f) is predicated upon completion of the
section 106  process. See Corridor H Alternatives, Inc. v. Slater, 166




__________

n 6 The Council has recently promulgated regulations revising the 
section 106 process. 64 Fed. Reg. 27,044 (1999). Our citations are  to
the regulations as they existed at the time the Administration 
approved the project.


7 In addition to historical sites, other properties--including parks, 
recreational areas, and wildlife preserves--are protected by section 
4(f).


The central dispute between the parties is not about wheth- er, but
about when, the Administration must complete its  identification of
historic properties. The Administration has  been "taking into
account" the effect of the proposed project  on historic sites since
the project's inception, conducting  several surveys which led to the
identification of 23 National  Register-listed or National
Register-eligible properties, and  36 underwater or terrestrial
archaeological sites in the pro- ject area. The Administration also
identified and visited each  National Register-listed property in
Alexandria for the pur- pose of determining, among other things, the
"visual impacts"  that various alternative bridge proposals would have
on each  site. The result was publication of a Memorandum of Agree-
ment and a Section 4(f) Evaluation with or prior to the 
Administration's approval of the project; these documents  identify
seven historic sites that will be affected by the  project and another
six that may be, and offers plans to  minimize and mitigate the


The district court did not question the overall legitimacy or 
thoroughness of these studies.8 (Indeed, appellees cannot  identify a
single historic resource in the project area that the  Administration
failed to "take into account."9) Instead, the 




__________

n 8 Appellees point to the Administration's decision to reduce the 
size of the "Area of Potential Effects" in 1997, and suggest that the 
Administration reduced this Area in an attempt to evade section  106's
obligations. The Administration offers a perfectly innocent 
explanation, which we have no reason to question: The Area of 
Potential Effects was originally drawn with a range of alternatives 
in mind, including taller bridge designs with far more extensive 
"visual effects" in Alexandria. It was then reduced to encompass  only
those areas affected by the preferred alternative. Notably,  appellees
do not point to any properties outside of the new "re- duced" Area of
Potential Effects that will actually be affected by  the project.


9 Amicus Sierra Club rather inventively argues that the Adminis-
tration failed to treat as a section 106/4(f) property the Hunting 
Terrace apartment complex in Alexandria, but it is not eligible for 
inclusion in the National Register of Historic Places, and therefore


district court concluded that the Administration violated sec- tion 106
by deciding to postpone the identification of sites  where it would
conduct certain construction-related activities,  including
construction staging areas (the locations where  contractors will
store materials and mobilize construction  activities), wetland
mitigation areas, and dredge disposal  sites. While the likely impact
of these activities, which the  Administration describes as
"ancillary," are minimal when  compared to those of the project as a
whole, it is at least  conceivable that they could ultimately affect
section 106 prop- erties. Acknowledging this possibility, but noting
that it  usually defers the identification of such properties until
the  "design stage" of a large highway project, the Administration 
included promissory language in its Memorandum of Agree- ment binding
it to fulfill its section 106 responsibilities when  selecting these
sites. The district court thought that these  prospective terms ran
afoul of our recent decision in Corridor  H Alternatives, Inc. v.
Slater, 166 F.3d 368 (D.C. Cir. 1999),  in which we held that the
Administration could not postpone  the entire section 106 process


We think that district court misconstrued our holding in  Corridor H.
In that case, the Administration postponed the  entire section 106
process for a major highway corridor; its  Record of Decision instead
adopted a "Programmatic Agree- ment" dividing the highway into
fourteen segments, and 




__________

n is not a protected property under either section 106 or section 4(f).
 See 23 C.F.R. s 771.135(e); 36 C.F.R. s 800.2(e). Showing similar 
ingenuity, appellees argue that the Administration violated sections 
106 and 4(f) because "the boundaries of Freedman's Cemetery ...  have
still not yet been determined." They apparently believe that  since
the site's precise location is unknown (and, it seems, unknow- able),
it is by definition impossible to know for certain the "effect"  that
the construction will have on the site, thus placing the Adminis-
tration in violation of sections 106 and 4(f). To set forth the logic
of  this argument is to refute it. Cf. Hoonah Indian Ass'n v. Morri-
son, 170 F.3d 1223, 1231-32 (9th Cir.1999) (inability of Forest 
Service to identify location of Indian march justified decision not to
 designate it a section 106 property).


promised that it would not begin construction of a particular  segment
before completing the section 106 process for that  segment. We held
that this Agreement impermissibly abro- gated the Administration's
responsibility to assess the pro- ject's impact on historic properties
during the planning stages  of the project. See 166 F.3d at 373. But
that is not the case  here, since the Administration has identified
historic proper- ties along the entire project corridor and documented
its  findings prior to approval in both a Memorandum of Agree- ment
and a Section 4(f) Evaluation. All that has been  deferred is the
identification of sites that might be impacted  by a small number of
"ancillary activities." This is quite  distinguishable from the
"Programmatic Agreement" we pro- scribed in Corridor H.


The Administration did not postpone the identification of  these
properties "merely to avoid having to complete its 4(f)  and 106
analyses," as the district court said. 46 F. Supp. 2d  at 47. As the
Administration points out, the precise identifi- cation of these sites
requires "substantial engineering work"  that is not conducted until
the design stage of the project;  indeed the Administration is
required to conduct such "final  design activities" after it completes
its Final EIS. 23 C.F.R.  s 771.113(a)(iii). Furthermore,
then-existing Council regula- tions explicitly encouraged flexible,
staged planning in the  section 106 process. See 36 C.F.R. s 800.3(b)
(section 106  procedures "may be implemented ... in a flexible
manner");  36 C.F.R. s 800.3(c) (section 106 regulations should not be
 interpreted to "prohibit phased compliance at different stages  in
planning."). Appellees respond that the Administration  could
nonetheless "feasibly" identify these sites without doing  "final
design" plans for the project. But the standard of  "feasibility,"
while relevant to whether an agency may use 4(f)  properties, has no
application in determining when the agency  must identify them. We
think that, particularly where the  sites postponed are merely
ancillary to the project, section  106 and the identification
prerequisites of section 4(f) do not  forbid the rational planning


B.


We also think that the Administration satisfied section  4(f)'s
substantive provisions. Appellees barely bother to ar- gue that the
Administration did not comply with section  4(f)(1)'s requirement that
it consider all "prudent and feasible  alternative[s]" to using
protected properties. The reason for  this gap in appellees' otherwise
vigorous presentation is obvi- ous enough. For while the
Administration is required to give  the protection of 4(f) property
"paramount importance" in  determining whether an alternative is
"prudent," Overton  Park, 401 U.S. at 412-13, we have squarely held
that an  alternative cannot be a prudent one if it does not satisfy
the  transportation needs of the project. See Citizens Against 
Burlington, 938 F.2d at 204. In light of this limitation,  appellees
can only win under section 4(f)(1) if they establish  one of two
propositions: They must show that a narrower  Bridge satisfies the
transportation needs of the project, or  they must offer a "prudent"
project alternative that does not  impact the 4(f) properties used by
the Administration's pre- ferred design. The former question we have
already resolved  in the Administration's favor, and appellees do not
advance an  alternative highway route that has a less significant


Appellees do argue with greater enthusiasm that the Ad- ministration
violated section 4(f)(2)'s requirement that the  agency engage in "all
possible planning" to minimize harm to  4(f) properties, but this
argument is equally unpersuasive.  To begin at the broadest level of
generality, appellees do not  question the Administration's express
findings that, among  the seven "prudent and feasible" alternatives
compared in the  Final EIS, the preferred alternative "results in the
least  overall impact to section 4(f) resources." Cf. Druid Hills 
Civic Ass'n, Inc. v. FHWA, 772 F.2d. 700, 716 (11th Cir.  1985)
(noting that "section 4(f)(2) requires a simple balancing  process
which totals the harm caused by each alternate route  to section 4(f)
areas and selects the option which does the  least harm"). At the
site-specific level, the Administration  made several significant
project modifications to avoid or  minimize impacts to section 4(f)


an interchange design to avoid impacting a schoolground and 
eliminating the construction of a temporary Beltway overpass  to
minimize the risk of harm to Freedman's Cemetery.  Where the
Administration could identify no feasible and  prudent plan for
avoiding impact to a 4(f) site, it offered plans  to mitigate that
impact; for instance, it proposed substantial  improvements to Jones
Point Park, arguably the most signifi- cant 4(f) property impacted by
the project. Further recita- tion of the Administration's mitigation
efforts is possible, but  unnecessary; suffice it to say that, after a
thorough review of  the record, we have little difficulty concluding
that the Ad- ministration complied with its responsibilities under
section  4(f) of the Department of Transportation Act.10


* * * *


During the course of our consideration of this case, appel- lees have
attempted to bolster their position by pointing to  the opposition of
prominent legislators to the project, and by  noting the hurdles to
ultimate congressional approval that  still lie in the
Administration's path. These political impedi- ments are irrelevant to
us but they indicate where appellees  should concentrate their
efforts. We have been admonished  by the Supreme Court with respect to
the very statute that is  at the heart of this case to avoid using its
requirements as a  vehicle to impose our own judgment. Vermont Yankee,
435  U.S. at 554. Our obligation is not to further our beau ideal of 
a bridge design, but merely to ensure that the procedures  mandated by
these statutes have been complied with. We  hold that the
Administration has satisfied the requirements of 




__________

n 10 Appellees correctly note that section 4(f)'s substantive require-
ments can only be complied with after section 4(f) properties have 
been identified. We remind the Administration that our holding  that
it could defer the identification of section 4(f) properties that 
might be impacted by construction staging and dredge disposal 
activities in no way absolves it of its responsibility to conduct a
4(f)  analysis when selecting these sites during the design stage of


NEPA, the National Historic Preservation Act, and the De- partment of
Transportation Act, and reverse.


So ordered.