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New River Valley Greens v. United States Department of Transportation

November 17, 1997

THE NEW RIVER VALLEY GREENS; THE SIERRA CLUB; THE NEW RIVER VALLEY ENVIRONMENTAL COALITION, PLAINTIFFS-APPELLANTS,

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION; FEDERICO F. PENA, SECRETARY OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; RODNEY SLATER, ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION, DEFENDANTS-APPELLEES,

AND

ROBERT E. MARTINEZ, ADMINISTRATOR, VIRGINIA DEPARTMENT OF TRANSPORTATION, DEFENDANT.



Appeal from the United States District Court for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge. (CA-95-1203-R)

Before RUSSELL and HALL, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

PER CURIAM

Argued: August 12, 1997

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

OPINION

I. Chronology

A. Factual

In June 1990, the Virginia Department of Transportation ("VDOT") began planning the construction of a five mile stretch of highway in the Ellett Valley near Blacksburg, Virginia. As envisioned, the road would relieve local traffic congestion along U.S. Route 460, provide a more direct route from Roanoke to Blacksburg, and serve as a test facility for development of a new "intelligent vehicle/highway system." This stretch of highway, nicknamed the "Smart Road," ultimately would include sensors in the road and possible magnetic levitation and monitoring systems to assist drivers in vehicle navigation.

Because the highway was to be constructed and financed, in part, with Federal monies, the National Environmental Policy Act ("NEPA"), 42 U.S.C. Section(s) 4321 et seq., applied to the project. Pursuant to the Act's requirements, VDOT promulgated a Draft Environmental Impact Statement ("DEIS") on August 20, 1991, made it available to the public the next day, and, thereafter, held public hearings on it to receive citizen commentary. On March 5, 1993, VDOT issued the project's Final Environmental Impact Statement ("FEIS") which the Federal Highway Administration ("FHWA") approved on March 26, 1993.

On May 2, 1994, the United States Fish and Wildlife Service ("FWS") informed the FHWA that a certain endangered plant, the smooth coneflower, had been found in the project area. As a result of the discovery, VDOT proposed a 750 foot shift in the final route of some two miles of the Smart Road. On June 5, 1995, the FWS issued a biological opinion concluding that this slight relocation of the road along the new "southern alignment" would pose no threat to the continued well-being of the endangered flower.

In response to this partial redirection of the road, the defendants issued an "Addendum" to the FEIS in September 1995. The Addendum's purpose was to assess whether the altered alignment of the road would produce any significant new environmental repercussions. The Addendum concluded that because the environmental implications of the road's partial realignment were minor, preparation of a Supplemental ...


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