On September 27, 1996, days after the close of the comment period on the July 1996 SDEIS and nine days after the conformity assessment was approved, the Coordination Committee selected its Preferred Alternative. Then, pursuant to NEPA, the study team began preparation of the Final EIS ("FEIS"). The FEIS was released on September 2, 1997.

The FEIS explains the omission of ten-lane alternatives by stating that such configurations "cannot satisfactorily address the transportation needs of the region." FEIS JA000109-113. The FEIS reports that the ten-lane, no-HOV option was considered "in the early stages of the study . . . [but] was dropped at that time . . . because it was insufficient from a functional, safety and operational standpoint." JA000109. That conclusion follows solely from the reduced capacity of a ten-lane versus a twelve-lane crossing. At the same time, the FEIS notes that social, cultural and environmental impacts produced by a ten-lane alternative would be "essentially the same" as those produced by a twelve-lane alternative. JA000113. To support its conclusion, the FEIS includes a one page "Environmental Impact Matrix" purporting to break down the impacts of ten- and twelve-lane configurations with respect to fifteen environmental, social and cultural factors. JA000465. This table, in essence, purports to demonstrate that the cumulative negative effects on cultural, natural, and social resources of a twelve-lane alternative are not substantially different from those produced by a ten-lane alternative.

It is undisputed that alternatives with fewer than twelve lanes, without HOV lanes and physical separation of local and express traffic, were not subjected to detailed NEPA analysis. FHWA has maintained that such alternatives were properly excluded from NEPA analysis since they would not meet the purpose and need of the project.

In 1995, the FHWA defined the area of potential effects ("APE") of the project, demarcating the area which might be negatively impacted by the project. In January 1996, the FHWA issued a Cultural Resources Technical Report ("CRTR"). The CRTR purported to serve as an "integrated compilation of all previous terrestrial and underwater archaeological/historic resource surveys, investigations, and determinations of effect," according to the FHWA. JA005629. Also in 1996, the FHWA circulated two proposed Memoranda of Agreement ("MOA"). Under Section 106 implementing regulations, the MOA represents formal agreement among the consulting parties as to how adverse effects of the project will be taken into account. 36 C.F.R. § 800.5. The two proposed 1996 MOAs were not signed by the consulting parties. Subsequent to the 1996 CRTR, the FHWA performed additional cultural and technical studies. In 1997, the FHWA substantially reduced the size of the project’s APE, and circulated three more proposed MOAs. See JA006313. Signature to the final, October 1997, MOA was made predicate to future participation in identification of protected properties and mitigation efforts. See JA002100, JA006839. The final, October 1997, MOA was signed by the City of Alexandria, the District of Columbia State Historic Preservation Officer, the Maryland State Historic Preservation Officer, the Virginia State Historic Preservation Officer, the National Park Service, and the FHWA. Several interested parties did not sign the final MOA, including the Alexandria Historical Restoration and Preservation Commission and Old Town Civic Association. The City of Alexandria, which signed the final MOA, noted in an addendum to its signature page "the City . . . continues to believe that the FHWA has not adequately taken into account the effect of the [approved project] on historic resources, as required by Section 106[of the National Historic Preservation Act]." JA006841.

Here, there are no disputes as to the documents contained in the record. The parties only disagree as to their legal significance. Therefore, summary judgment is appropriate as the questions presented before this Court are solely legal in nature.

In 1990 Congress amended the CAA in an effort to spur progress toward attainment of the NAAQS. A key component of the 1990 CAA amendments was the addition of a requirement that all federal agencies and instrumentalities undertaking activities in a nonattainment area ensure that their project will conform to the relevant SIP. This is known as the "conformity requirement". In order to conform, the federally approved project must not cause or contribute to new violations, increase the frequency or severity of existing violations, or delay attainment of the NAAQS. See 42 U.S.C. § 7506(c)(1)(B). This requirement is repeated in the EPA regulations pertaining to federally assisted or approved transportation projects. See 40 C.F.R. 93.101 et seq. (requiring a conformity analysis for all transportation projects prior to agency approval, funding or implementation).

In May, 1996, the FHWA conducted a conformity analysis for a ten-lane river-crossing with tolls pursuant to the Bridge project. In 1997, the FHWA issued its ROD, approving a twelve-lane river crossing. The Plaintiff-intervenors argue the FHWA must perform a conformity analysis for a twelve-lane river crossing with no tolls, and that the ten-lane, with tolls conformity analysis is insufficient under the CAA.

NEPA states that any federal agency undertaking a "major federal action[]" likely to "significantly affect the human environment" must prepare an Environmental Impact Statement. The EIS must provide a "detailed statement" of the environmental impacts of the action, possible alternatives, and measures to mitigate adverse effects of the proposed action. See 42 U.S.C. § 4332(2)(C). While NEPA does not mandate any particular result, it requires the agency to follow particular procedures in its decision-making process. The purpose of these procedures is to ensure the agency has before it the best possible information in order to make an "intelligent, optimally beneficial decision" and to ensure the public is fully apprized of any environmental risks that may be associated with the preferred action. Calvert Cliffs’ Coordination Comm., Inc. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971).

A key component of the EIS is the analysis of "reasonable alternatives." 40 C.F.R. § 1502.14(a). Agencies must "rigorously explore and objectively evaluate all reasonable alternatives" prior to selecting a specific project. Sierra Club. v. Watkins, 808 F. Supp. 852 (D.D.C. 1991). Alternatives that present a feasible solution to the project’s stated purpose and need of the project are reasonable. See Citizens Against Burlington, Inc., v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991). While an agency may decline to give rigorous consideration to proposals that fall far short of the project’s purpose and need, an agency may not eliminate an otherwise reasonable alternative solely because it presents only a partial solution to the stated purpose and need for the project. See NRDC v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972). Indeed this Circuit has held that it is unreasonable "to disregard alternatives merely because they do not offer a complete solution to the problem." Id. at 836. However, agencies need not consider every conceiveable alternative. In determining the appropriate set of reasonable alternatives to be given "rigorous" consideration in the EIS, agencies must be guided by a "rule of reason." Busey at 194-195.

To satisfy Section 4(f), the FHWA must first identify all protected properties that may be affected by a potential project. See Corridor H. Alternatives, Inc. v. Slater, 982 F. Supp. 24, 31 (D.D.C. 1997). A property is protected under the DOTA if it is "a park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site)." 49 U.S.C. § 303(c). The FHWA must then determine if the project will "use" any protected properties. Finally, if the project calls for "use" of protected properties, the Secretary of the FHWA must do "all possible planning" to minimize harm to those properties. 49 U.S.C. § 303(c)(2); See Druid Hills Civic Ass’n, Inc. v. Federal Highway Admin., 833 F.2d 1545, 1547-48 (11th Cir. 1987).

Section 106 of the National Historic Preservation Act provides that any agency having jurisdiction over a federally-assisted project "shall, prior to the approval of expenditure of any Federal funds on the undertaking . . . take into account the effect of the undertaking on [any district, site, building, structure, or object that is included or eligible for inclusion in the National Register." 16 U.S.C. § 470f. Under regulations implementing Section 106, the FHWA is required to identify historic properties within the area of potential effects of the project, and must perform an analysis of the likely impacts on those properties. See 36 C.F.R. Part 800 (1998); Colorado Indian Tribes v. Marsh, 605 F. Supp. 1425, 1435-38 (C.D. Cal. 1985).

It is clear that compliance with Section 4(f) is partially predicated upon completion of a Section 106 analysis of impacts on historic properties. The regulations implementing Section 106 and Section 4(f) define historic properties in substantially the same way. Sections 4(f) regulations identify historic properties as "all properties on or eligible for the National Register of Historic Places." 23 C.F.R. § 771.135(e). Regulations implementing Section 106 define historic properties as all properties listed on or eligible for listing on the National Register of Historic Places. 36 C.F.R. § 800.2(e)(1998). Therefore, to identify 22 pursuant to Section 4(f) all places of historic significance that will be used by a project, the agency must have satisfied the Section 106 identification requirement. See Corridor H Alternatives, Inc. v. Slater, 1999 WL 54795 at 4 (D.C. Cir.). As Judge Hogan recently stated, because "Section 4(f) duties with respect to historic sites are tied to a review of historic resources under Section 106 of the NHPA, it follows that an agency must complete its Section 106 determinations before it can begin compliance with Section 4(f)." Corridor H, 982 F. Supp. at 32. Likewise, it follows that an agency cannot reasonably be expected to do "all possible planning" to minimize harm to protected properties as required by DOTA Section 4(f) without first having completed a detailed and comprehensive list of protected historic resources potentially affected by the project.

Plaintiff-intervenors contend that FHWA violated both Section 106 of the NHPA and Section 4(f) of the DOTA. First, Plaintiff-intervenors claim that the FHWA did not take sufficient steps to identify historic resources which would be used by the project under Section 106. Second, Plaintiff-intervenors maintain that the FHWA did not do "all possible planning" to minimize harm as statutorily required by Section 4(f) of the DOTA.

In support of their argument that the FHWA did not conduct a sufficient NHPA and DOTA historic resource identification process, plaintiff-intervenors point to statements made in the MOA. The MOA, for example, says that "the Project may have an effect on additional properties [not identified in the MOA] that are eligible for inclusion in the National Register, as the result of activities related to implementation of the Project, including, but not limited to construction staging, dredge disposal, wetland mitigation, or other ancillary activities . . .". JA 002089. Plaintiff-intervenors contend that the locations and effects of such activities are reasonably forseeable, and therefore could be designated prior to adoption of the approved project in the ROD. The MOA also envisions the preparation of an Historic Resources Identification and Evaluation Report (the "Report"), "identify[ing] and evaluat[ing] the defining historical characteristics of the Alexandria Historic District within the APE." JA002090-91. The plaintiff-intervenors point out that the MOA is largely promissory in nature, providing little in the way of concrete identification of protected resources and mitigation plans. By not identifying all protected resources prior to approval, plaintiff-intervenors state that the FHWA violated the DOTA and the NHPA

Defendants explain that since the project design has not been completed as to certain activities, no identification need be done at this point. The Defendants in essence propose putting off decision on the location and extent of construction staging and dredge disposal, as well as certain undefined "ancillary activities." This necessarily puts off identification of protected resources which might be affected by design of those elements. See MOA at JA002089. The FHWA argues that such activities may be legitimately dealt with by execution of the MOA. The FHWA further claims that the Report does not represent an effort to attenuate the Section 106 identification process, but to "continue the Section 106 consultation process" both as to identified properties and those not yet identified. Def.[s’] Br. at 66.

The Section 4(f) process must be completed before the ROD is issued. See 1999 WL 54795 at 6 (citing the "explicit requirement" that "[the FHWA] complete the section 4(f) process before [it] issues the ROD"). Here, the identification process was not 24 completed prior to issuance of the ROD. Identification of historic properties possibly affected by dredge disposal sites and construction staging is expressly postponed. An "Historic Resources Identification and Evaluation Report" is exactly what the NHPA and DOTA call for; namely, identification of historic sites and evaluation of the adverse impacts on them. Such a report must be prepared as part of the Section 106 process prior to the issuance of the ROD.

That the ROD approves a project design postponing full compliance with the NHPA and the DOTA is not adequate. An agency is not allowed to approve a less-than-fully designed project in the ROD merely to avoid having to complete its 4(f) and 106 analyses. Such a holding would vitiate the purposes behind Sections 4(f) and 106. Where aspects of the project can be feasiblely determined prior to the ROD, those aspects should be factored into the Section 4(f) and 106 analyses. Here, the MOA merely reflects agreement by the signatory parties to postpone identifying "properties" and mitigation procedures.

Because this Court concludes that the FHWA has failed to complete the required identification of protected affected properties under Section 4(f) of the DOTA and Section 106 of the NHPA, it need not address the Plaintiff-intervenors’ argument that the FHWA failed to do "all possible planning" as required by the DOTA Section 4(f). This will have to be done in the agency’s reconsideration of its project.

As Defendants have not complied with their obligations under the CAA, NEPA, NHPA and the DOTA, this Court has no choice but to hold that the agency abused its discretion in issuing its ROD in 1997 and remand this matter for further agency action. Accordingly, construction on the new bridge can not commence until the agency has fulfilled its responsibilities under these statutes.

The court is reluctant to order this action. These statutes have as their purpose the protection of various aspects of the public interest. Despite their intended purpose, they often cause regulatory gridlock which results in necessary projects being interminably delayed. It is clear an expanded bridge crossing linking the North and South at the Nation’s Capital is sorely needed. While a return to the simpler days of the past might better satisfy the concerns of the public interest statutes involved here, progress must nevertheless occur. Simply put, an expanded bridge over the Potomac River is necessary if this Nation’s Capital and its surrounding neighborhoods are not going to suffer paralysis.