Coalition to Preserve McIntire Park v. Mendez (862 F. Supp. 2d 499, 2012)

United States District Court for the Western District of Virginia 2012-05-29

Highways Transportation

Citations

Full opinion text

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

In this action, the Coalition to Preserve Mclntire Park and Daniel Bluestone (collectively “Plaintiffs”) seek declaratory and injunctive relief for purported violations of federal law by Defendant Victor Mendez, Administrator for the Federal Highway Administration (“FHWA”), in approving federal funding for a highway project in Charlottesville, Virginia known as the Route 250 Bypass Interchange at Mclntire Road (the “Interchange Project”). Plaintiffs contend that the Interchange Project, which calls for the expansion of the existing intersection of the Route 250 Bypass and Mclntire Road, will compromise or destroy portions of Mclntire Park (the “Park”) and adversely affect other natural and historic features found therein and nearby. The matter is before the Court on cross-motions for summary judgment. For the reasons that follow, I will deny Plaintiffs’ motion and grant Defendant’s cross-motion.

I. Background

A. Facts Contained within the Administrative Record

The Interchange Project at the heart of this matter is preceded by a long history of attempts to build roads through and around Mclntire Park. Evidently, what was, decades ago, a more ambitious and comprehensive project has since been scaled back and broken up by the local, state, and federal governmental entities that, to various degrees and at various times, have been involved. Today, there are essentially three separate projects in and around the Park area.

Northeast of the Park is a 1.4-mile stretch of road known as the Meadow Creek Parkway (the “Parkway”), which extends south from Rio Road to Melbourne Road. The Parkway, which was funded by Albemarle County and the Virginia Department of Transportation (‘VDOT”), was recently completed, and is now open to traffic.

To the southwest of the Parkway would run the proposed Mclntire Road Extended (the “MRE”), which is being funded by the City of Charlottesville and VDOT. It would be built through the eastern half of Mclntire Park, thus connecting the southern terminus of the Parkway at Melbourne Road with the Route 250 Bypass at Mclntire Road. However, as currently configured, the MRE would not extend south all the way to the Route 250 Bypass; rather, it would terminate at a point 775 feet north of the bypass.

Finally, there is the Interchange Project, with which this lawsuit is primarily concerned. The Interchange Project is the only one of the three plans that, if completed, would utilize federal funding. As its name indicates, the Interchange Project seeks to construct a grade-separated interchange at the current at-grade, signalized intersection of the Route 250 Bypass and Mclntire Road. The Route 250 Bypass is a key east-west, four-lane divided roadway that enables motorists to bypass Charlottesville’s downtown area and neighborhoods. AR 7, Bates # 000040. Mclntire Road is a two-lane road that runs north from the downtown area and terminates at the Route 250 Bypass. Id.

Although it was originally conceived by the City of Charlottesville and initiated in 2004, the Interchange Project was later added to the Statewide Transportation Improvement Program, which is approved annually by the FHWA. See AR 7, Bates # 000038. Initial funding was provided by VDOT, and in 2005, Congress earmarked a total of $27 million for the Interchange Project in the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”), Pub.L. No. 109-59,119 Stat. 1144, 1449, 1506. Id. Also in 2005, the Charlottesville City Council created a steering committee to offer input on plans for the Interchange Project. Id. at Bates # 000040.

Based on traffic studies, the FHWA determined in 2006 that the intersection was operating at a level of service (“LOS”) D during the morning rush hour and a LOS C during the evening rush hour. AR 7, Bates # 000040. While these LOS ratings were satisfactory, the FHWA projected that under future no-build conditions, an at-grade intersection would exist where the Route 250 Bypass, Mclntire Road, and the currently-proposed MRE meet, and by the year 2030, volumes of traffic would cause the intersection to operate at a LOS F during both morning and evening rush hours. Id. at Bates # 000042. A LOS F is deemed unsatisfactory. Id. Even if the MRE were not built, the FHWA concluded, 2030 traffic projections for the intersection under no-build conditions indicate that it would still function at a LOS F. Id.

According to the FHWA, the Interchange Project seeks to address five objectives, known as the Interchange Project’s “purpose and need.” These ends include:

1. Improving roadway and operational deficiencies in the form of traffic congestion, limited capacity, and inefficient traffic operations at the existing intersection of the Route 250 Bypass and Mclntire Road intersection as well as within the project area;

2. Improving unsafe motorist, bicycle, and pedestrian conditions for those passing through the project area;

3. Improving deficiencies in community mobility for automobiles, pedestrians and bicyclists;

4. Addressing social demands for creating a gateway into the City of Charlottesville and the Park that is sensitive to the context of its surroundings, minimizes impacts to the environment, and supports existing and planned recreational development; and

5. Constructing a project that is consistent with Congress’s desires as represented by its earmark in SAFE-TEA-LU.

See AR 7, Bates # 000042; AR 534, Bates # 004690, 004692. With these purpose and need goals serving as a backdrop, the FHWA undertook a rather exhaustive process of examining several options for improvement of the intersection.

At the beginning of this process, certain design proposals and alternative options for improvement of the intersection were excluded from detailed study because they failed to meet the purpose and need of the Interchange Project. AR 534, Bates # 004693-94. Thereafter, a no-build alternative and three interchange concepts for improvement of the intersection were presented to the public. Id. at Bates # 004694. The result was the development of thirteen different interchange alternatives, which were evaluated for their ability to meet the Interchange Project’s purpose and need, and then presented to the public in 2006. Id. at Bates # 004694-95. Of these alternatives, five were retained for more detailed analysis, but only two were carried forward in 2007. Id. at Bates # 004695. Following a public comment period, discussion with the Interchange Project’s steering committee, and a Charlottesville City Council work session, the City Council endorsed Alternative Gl as the preferred alternative in August 2008. Id. at Bates # 004695-96.

Alternative Gl, which would meet the purpose and need for the Interchange Project, calls for a traditional diamond-shaped interchange with signalized ramps at Melntire Road. Id. at Bates # 004696. The central design feature of Alternative Gl is the Route 250 Bypass passing over Melntire Road, hence achieving a grade-separated interchange. Id. Alternative Gl also proposes a northern spur, extending the existing Melntire Road northward to meet the proposed MRE, which would extend down from Melbourne Road. Id. According to the FHWA, if the MRE is not constructed, the design of the interchange would be reevaluated. Id. Overall, Alternative Gl would require approximately 7.8 total acres of the Park (5.5 acres for new roadways and 2.3 acres for trails). AR 7, Bates # 000053. The FHWA represents, and Plaintiffs do not dispute, that the new roadways called for by Alternative Gl would result in the paving of 4.1% of the Park’s acreage.

Both Alternative Gl and the no-build alternative were carried forward for further analysis by the FHWA. At that point, it was determined that Alternative Gl would use five properties protected by Section 4(f) of the Department of Transportation Act of 1966: Melntire Park, Melntire Skate Park, Rock Hill Landscape, Charlottesville and Albemarle County Courthouse Historic District, and Mclntire/Covenant School. Id. at Bates # 000043. The impact on the last two of these properties would be de minimis. Id. at Bates # 000053. However, all of Melntire Skate Park would be used, and portions of Mclntire Park and Rock Hill would be impacted. Id. at Bates # 000054.

Next, the FHWA considered three total avoidance alternatives and the no-build alternative. The total avoidance alternatives were designed to avoid all of the Section 4(f) properties. Id. at Bates # 000055. Avoidance Alternative 1 would improve roadways northwest of the Park; however, it would substantially impact approximately sixty residential properties and require multiple relocations, which would significantly raise the cost of such a project. Id. at Bates # 000055, 000057. For these and other reasons, and because it failed to meet the Interchange Project’s purpose and need, Avoidance Alternative 1 was rejected. Id.

Avoidance Alternative 2, which is favored by Plaintiffs, would improve upon the no-build, at-grade intersection of the Route 250 Bypass and Mclntire Road by shifting it to the southwest and expanding the number of through and turning lanes to twenty-four for the four approaches that would prospectively exist at the intersection (assuming construction of the MRE). AR 7, Bates # 000057. However, the FHWA determined that this alternative would in fact require an expansion to twenty-nine lanes in order to adequately address future traffic needs and to achieve an acceptable, non-failing LOS. Id. And even if the intersection were not expanded to twenty-nine lanes as such, the FHWA nonetheless concluded that it would not meet the purpose and need of the Interchange Project. Id. Therefore, Avoidance Alternative 2 was eliminated from consideration.

Finally, Avoidance Alternative 3 would avoid all Section 4(f) properties by improving roadways east of the intersection. Id. The FHWA concluded, however, that this alternative presented problems similar to those raised by Avoidance Alternative 2. Additionally, the FHWA determined that Avoidance Alternative 3 would implicate at least two other historic properties not affected by other alternatives under consideration. Id. at Bates # 000058. Accordingly, Avoidance Alternative 3 was rejected. Id. Ultimately, the FHWA concluded that there was no feasible and prudent total avoidance alternative to the use of land from certain Section 4(f) properties. Id. at Bates # 000059.

Pursuant to 23 C.F.R. § 774.3(c), the FHWA next proceeded to an analysis of which alternative would cause the least overall harm to Section 4(f) properties. Among these alternatives were options that sought to avoid particular Section 4(f) properties (as opposed to the previously mentioned total avoidance alternatives that would avoid all Section 4(f) properties). Id. at Bates # 000059-62. Ultimately, Alternative G1 was found to cause the least overall harm to the Section 4(f) properties. Id. at Bates # 000065, 000076. According to the FHWA, in its latest iteration, Alternative G1 also includes all possible planning to minimize harm to the Section 4(f) properties. Id. at Bates # 000079.

On October 6, 2009, the FHWA released a revised environmental assessment for the Interchange Project and made it available for review and comment. Subsequently, on September 29, 2010, the FHWA issued a finding of no significant impact, thus determining that an environmental impact statement would not be prepared. On the same day, after having previously provided the public an opportunity for review and comment, the FHWA released its Final Section 4(f) Evaluation, in which it revealed its selection of Alternative G1 as the best and final design proposal.

B. Procedural History

On February 22, 2011, Plaintiffs filed the instant action seeking, inter alia, to enjoin construction of the- Interchange Project under Alternative Gl. Plaintiffs argue that: (1) the FHWA was required to select an alternative alignment that, when compared to the preferred alternative, would have had no or lesser impact on the Park and nearby resources; (2) the environmental review conducted by the FHWA was too narrow in its scope because it did not adequately take into account the cumulative environmental effects posed by the Interchange Project and the MRE; and (3) federal law necessitated the preparation of an environmental impact statement for the Interchange Project rather than simply the development of an environmental assessment.

On April 20, 2011, Defendant filed his answer to Plaintiffs’ complaint. Thereafter, the parties compiled an administrative record numbering over 53,000 pages and submitted it to the Court on June 28, 2011. Subsequently, Plaintiffs filed their motion for summary judgment on October 18, 2011, and Defendant filed his cross-motion for summary judgment on November 17, 2011. The issues were fully briefed, and on April 25, 2012,1 conducted a hearing on the parties’ motions.

II. Legal Standards

Because this matter is before me on cross-motions for summary judgment, I must determine whether the parties are entitled to judgment as a matter of law on the claims raised by Plaintiffs. However, because Plaintiffs are challenging the decisionmaking of a federal agency, the Administrative Procedure Act requires me to conduct this inquiry under a different framework than otherwise typically applies. I set out the pertinent legal standards in turn.

A. Summary Judgment Standard

A court should grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment - as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, ATI U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard is the same for cross-motions for summary judgment. The court must consider “each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (citation and internal quotation marks omitted).

When, as here, a court is reviewing the decision of an administrative agency, a motion for summary judgment “stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court’s review.” Krichbaum v. Kelley, 844 F.Supp. 1107, 1110 (W.D.Va.1994). Therefore, a movant’s “burden on summary judgment is not materially different from his ultimate burden on the merits.” Id. The validity of the administrative decision “is to be determined exclusively on the administrative record,” Richards v. INS, 554 F.2d 1173, 1177 (D.C.Cir.1977), and the court may not “find” underlying facts. Rather, the only issues presented are issues of law. Lujan v. Nat'l Wildlife Fed’n, 491 U.S. 871, 883-84, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

B. Standard of Review under the Administrative Procedure Act

In a case such as the instant action, in which a federal agency’s decisions are being challenged, a court’s review of the claims must be conducted pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Under the APA, a court will set aside agency determinations of the sort made here if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). An action is arbitrary and capricious if the agency

relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

Under this standard of review, a court “must not reduce itself to a ‘rubber stamp’ of agency action,” N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 601 (4th Cir.2012) (quoting Fed. Mar. Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, 746, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973)), but rather must decide if the agency’s decision “was based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated in part by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). While the court’s “inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. Indeed, “[rjeview under this standard is highly deferential, with a presumption in favor of finding the agency action valid.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir.2009).

III. Discussion

A. Section 4(f) Claim

Plaintiffs allege that when the FHWA issued its Final Section 4(f) Evaluation, and in so doing selected Alternative G1 as the preferred alternative, it rejected a feasible and prudent alternative project design that would have dramatically reduced or eliminated the need to take parkland and land containing historic sites.

Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303, and section 18(a) of the Federal-Aid Highway Act, 23 U.S.C. § 138, (collectively “Section 4(f)”) impose substantive limits on the discretion of the Secretary of Transportation to approve federally-funded projects that use certain protected lands or resources. Specifically, Section 4(f) prohibits federal approval or funding of a transportation project that requires the use of “publicly owned land of a public park, recreation area, or ... land of an historic site of national, State, or local significance,” unless “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the [protected property] resulting from the use.” 49 U.S.C. § 303(c). The Supreme Court of the United States has stated that the existence of Section 4(f) “indicates that protection of parkland was to be given paramount importance.” Overton Park, 401 U.S. at 412-13, 91 S.Ct. 814.

Thus, when confronted with the potential use of Section 4(f) resources, the FHWA must consider alternatives that avoid these resources. These avoidance alternatives become the preferred alternative unless they are shown to be infeasible or imprudent. An alternative is infeasible “if it cannot be built as a matter of sound engineering judgment.” 23 C.F.R. § 774.17. An alternative is imprudent if:

(i) It compromise's the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need;

(ii) It results in unacceptable safety or operational problems;

(iii) After reasonable mitigation, it still causes:

(A) Severe social, economic, or environmental impacts;

(B) Severe disruption to established communities;

(C) Severe disproportionate impacts to minority or low income populations; or

(D) Severe impacts to environmental resources_ protected under other Federal statutes;

(iv) It results in additional construction, maintenance, or operational costs of an extraordinary magnitude;

(v) It causes other unique problems or unusual factors; or

(vi) It involves multiple factors in paragraphs [ (i) ] through [ (v) ] of this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

Id.

If the FHWA has determined that there is no prudent and feasible alternative to using a given Section 4(f) property, the FHWA may approve, from among the remaining alternatives that do use the 4(f) property, only the alternative that causes the least overall harm. 23 C.F.R. § 774.3(c)(1). The least overall harm is determined by balancing the following factors:

(i) The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property);

(ii) The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection;

(iii) The relative significance of each Section 4(f) property;

(iv) The views of the offieial(s) with jurisdiction over each Section 4(f) property;

(v) The degree to which each alternative meets the purpose and need for the project;

(vi) After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and

(vii) Substantial differences in costs among the alternatives.

Id.

In Overton Park, the Supreme Court discussed the review of a Section 4(f) determination by the Secretary of Transportation (or, in this case, the FHWA), stating that under the APA, a reviewing court must “engage in a substantial inquiry.” 401 U.S. at 415, 91 S.Ct. 814. The Court identified three factors for the reviewing court to weigh. Id. at 415-17, 91 S.Ct. 814. First, the court must determine whether the Secretary acted within the scope of his authority. Id. at 415, 91 S.Ct. 814. Under this prong, the court “must be able to find that the Secretary could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems.” Id. at 416, 91 S.Ct. 814. Next, the court must ascertain whether the Secretary’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law pursuant to the APA. Id. Finally, the court must decide “whether the Secretary’s action followed the necessary procedural requirements.” Id. at 417, 91 S.Ct. 814. I consider these three factors in turn.

1. Feasible and Prudent Alternatives

In Overton Park, the Supreme Court stated that Section 4(f) land could not be used “unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.” 401 U.S. at 413, 91 S.Ct. 814. In the case at hand, the crux of Plaintiffs’ claim under Section 4(f) is their contention that the FHWA selected Alternative G1 when a feasible and prudent alternative — namely, Avoidance Alternative 2 — exists, and that would, if implemented, successfully expand the traffic-moving capacity of the intersection while causing far less dramatic impacts on Section 4(f) properties. In other words, Plaintiffs argue that Avoidance Alternative 2 does not present unusual factors or unique problems and, as result, should not have been dismissed from further consideration.

In order to uphold an agency’s Section 4(f) determination, a reviewing court must, as previously mentioned, first find that the Secretary could have reasonably believed that there were no feasible and prudent alternatives. Because Plaintiffs’ challenge concerns only Avoidance Alternative 2, I will confine my inquiry to whether the FHWA could have reasonably found that particular avoidance alternative to be infeasible and imprudent; I do not analyze the reasonableness of the FHWA’s decision to reject other alternatives in depth. The FHWA concedes that from an engineering perspective, Avoidance Alternative 2, along with all of the alternatives considered, is feasible.

Typically, though, “[t]he more difficult issue is whether the alternatives were prudent.” Hickory Neighborhood Def. League v. Skinner (Hickory I), 893 F.2d 58, 61 (4th Cir.1990). In this case, after conducting an analysis of the avoidance alternatives, the FHWA determined that Avoidance Alternative 2 would be imprudent. The FHWA’s treatment of Avoidance Alternative 2 in its Final Section 4(f) Evaluation, in its entirety, is as follows:

Avoidance Alternative 2 would improve the Route 250 Bypass/Melntire Road intersection (proposed under No-Build conditions) to a total of 24 lanes including all four approaches. The intersectionwould be shifted to the southwest to avoid impacts to Mclntire Park as well as impacts to, Mclntire Skate Park, Rock Hill Landscape, and the Charlottesville and Albemarle County Courthouse Historic District. Based on updated traffic projections, this alternative would need to be expanded to a 29-lane intersection to address future traffic needs at the Route 250 Bypass/Melntire Road intersection and improve vehicular safety. However, regardless of the number of lanes, the alternative does not meet the project’s purpose and need because it would:

• add more lanes of traffic in each direction, thus making the intersection less safe for pedestrians, bicyclists and motorists due to the increase in crossing distance and the number of conflict points;

• not create a context sensitive setting that would benefit the Park or be in keeping with social demands for a gateway into the Park and downtown Charlottesville; and

• not be consistent with the Congressional earmark in SAFETEALU.

Avoidance Alternative 2 is not prudent because it would 1) be unreasonable to proceed with the alternative in light of the project’s stated purpose and need; and 2) result in unacceptable safety or operational problems. Avoidance Alternative 2 is therefore not feasible and prudent and it is being eliminated because it causes other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) properties.

AR 7, Bates # 000057. Thus, the FHWA found that Avoidance Alternative 2 implicates two of the factors for imprudence listed at 23 C.F.R. § 774.17: it would fail to meet the Interchange Project’s purpose and need, and it would produce unacceptable safety or operational problems. I address these grounds in turn.

The FHWA concluded that even if Avoidance Alternative 2 were modified in order to accommodate future traffic demands at the intersection, it would nevertheless fail to meet the purpose and need of the Interchange Project because it would not address safety concerns at the intersection, create a context-sensitive gateway, or respond to Congress’s desires as expressed in its earmark for the project. Because the first of these purpose and need elements is essentially the same as the second ground offered by the FHWA for Avoidance Alternative 2’s imprudence — namely, that it would result in unacceptable safety or operational problems — I will consider it in conjunction with my discussion of that ground below.

With respect to its contention that Avoidance Alternative 2 would be inconsistent with Congress’s earmark in SAFE-TEA-LU, the FHWA provides no legislative history to support that assertion. Rather, the FHWA points to the text of the Act. In SAFETEA-LU, there are two outlays — one for $25 million and the other for $2 million — both of which are intended for the construction of the “Meadowcreek Parkway Interchange, Charlottesville.” Pub.L. No. 109-59, 119 Stat. 1144, 1449, 1506 (2005). The FHWA stresses the fact that in both instances, Congress elected to use the word “interchange,” thus, according to the FHWA, implying that a literal interchange — not simply an at-grade expansion of lanes at the intersection as Avoidance Alternative 2 calls for — is what Congress intended the funds to be put towards. However, I find this reasoning tenuous. First, had Congress intended to foreclose the possibility that the $27 million in total federal funding might be used to construct an expanded, at-grade intersection, it could have easily inserted language to that effect or, alternatively, included conditional language indicating that the funding was being provided for the sole purpose of building a grade-separated interchange. Second, and more importantly, acceptance of the FHWA’s argument with respect to Congress’s intent necessarily leads to the conclusion that when Congress authorized the allocation of the $27 million in 2005, the construction of an interchange, as opposed to alternative solutions for upgrading the intersection, was a fait accompli. In other words, consideration of non-interchange alternatives would have been nothing more than a sham if the only way to meet Congress’s objective and, correspondingly, the only way to meet the project’s purpose and need, was to build an interchange.

Separately, the FHWA argues that when Congress is silent or ambiguous with respect to a certain issue, a court must uphold an agency’s interpretation of a given provision under the interpretative canon articulated by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, Chevron does not stand for the unmitigated proposition that any and all agency interpretations must be upheld by a reviewing court; rather, such interpretations are to be upheld unless they are “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778. In this case, the FHWA’s interpretation of SAFETEA-LU as requiring the construction of an interchange constitutes such an arbitrary reading. Accordingly, I find that the FHWA unreasonably relied on lack of consistency with Congressional intent to support its determination that Avoidance Alternative 2 would be imprudent.

However, as previously mentioned, the FHWA’s conclusion that Avoidance Alternative 2 would not meet the project’s purpose and need was not based solely on lack of consistency with Congressional intent. The FHWA also determined that Avoidance Alternative 2 would fail to satisfy the need for a context-sensitive setting that would benefit the Park or be in keeping with social demands for a gateway into the Park and downtown Charlottesville. Plaintiffs argue that this purpose and need element is, at best, jargon that runs counter to Section 4(f)’s underlying objective of giving the preservation of parkland “paramount importance.” Overton Park, 401 U.S. at 412-13, 91 S.Ct. 814. Further, Plaintiffs submit that there is no basis in the administrative record for these purported social demands. I disagree. In its Final Section 4(f) Evaluation, the FHWA stated:

Charlottesville has identified the area surrounding the existing Route 250 Bypass/McIntire Road intersection as a primary gateway to Mclntire Park and downtown Charlottesville. In a conceptual sketch, the 1972 Mclntire Park Master Plan recognized the opportunity at this location to provide improved access into the park. The 2004 draft Master Plan for the eastern portion of the park includes an interchange concept for this location that is sensitive to the Mclntire Park landscape and facilitates access for pedestrians, bicyclists, and motorized vehicles. Furthermore, Mclntire Road is designated as an ‘Entrance Corridor’ in the 2005 Charlottesville Entrance Corridor Design Guidelines prepared for the City of Charlottesville Planning Commission. In 2005, the City of Charlottesville appointed a twelve-member Steering Committee to act in an advisory role to the City and VDOT for this project. The Steering Committee, in advising the Project Team, has recommended that the City “develop a context sensitive, functional and cost-effective design that meets the aesthetic goals of the community while providing a gateway to the City and Mclntire Park.”

AR 7, Bates # 000041.

Additionally, the Charlottesville City Council supports the Interchange Project and, on December 7, 2009, passed a resolution approving its major design features. See AR 402, Bates #003258-59. While the notion of a context-sensitive gateway might, at first blush, strike one as vague, there is, in fact, a clear basis in the administrative record for this concept. And neither the FHWA nor the Charlottesville City Council found that Avoidance Alternative 2 could meet this component of the purpose and need. It is not the province of this Court to second-guess the validity of that decision; rather, the task before me is to decide whether the FHWA could have reasonably believed that Avoidance Alternative 2 would be imprudent, based on its inability to meet this aspect of the Project’s purpose and need. Ultimately, I conclude that the FHWA’s determination in this regard was reasonable.

As stated in the previously quoted portion of the FHWA’s Final Section 4(f) Evaluation, the safety of pedestrians, bicyclists, and motorists was identified as a prominent concern with regard to the prudence of Avoidance Alternative 2. The FHWA determined that even if the intersection were expanded only to the twenty-four lanes that Avoidance Alternative 2 calls for, rather than the twenty-nine lanes that would be necessary to meet future traffic demands, such an expansion would result in decreased safety, especially for pedestrians and bicyclists endeavoring to cross the Route 250 Bypass. Alternative G1 ameliorates these risks, for those pedestrians and bicyclists would be able to pass underneath the bypass. The FHWA maintains that these risks to public safety are not only imprudent consequences to Avoidance Alternative 2 in and of themselves, but they also represent an obstacle to achievement of the Interchange Project’s purpose and need.

Plaintiffs offer two points in rebuttal. First, they assert that a well-timed traffic light and crossing signals could address the FHWA’s concern regarding the safety of non-motorized traffic and pedestrians. While Plaintiffs may be correct that there is a way to engineer an expanded intersection that also adequately ensures the safety of those individuals crossing the Route 250 Bypass, I reiterate that the Court’s role in this case is not to serve as an arbitrator, deciding whose reasonable argument is superior to the other’s. Rather, I am, in the first instance, simply charged with determining the reasonableness of the FHWA’s conclusion that there was no feasible and prudent alternative to the use of Section 4(f) property. With respect to the FHWA’s safety concerns, I find that this decision was reasonable, for it is clear that an expanded intersection, as opposed to an interchange, could very well present safety risks of a greater magnitude to non-motorized passers through.

In this vein, Plaintiffs’ second point of contention is that because there is no guarantee that the MRE will be built — either down to the present intersection or to the proposed 775-foot spur northward into the Park- — no reason exists to believe that an appreciable volume of pedestrians and non-motorized traffic will be traveling across (or underneath) the Route 250 Bypass and into the Park. However, the administrative record indicates otherwise. Not only does the Interchange Project assume the construction of the MRE (as does the no-build alternative), but it also proposes the construction of bike lanes and shared-use trails that extend into the Park, regardless of whether or not the MRE is built. See AR 7, Bates #000037. Ultimately, the FHWA’s determination that safety concerns make Avoidance Alternative 2 an imprudent alternative was undoubtedly reasonable. See Hickory Neighborhood Def. League v. Skinner (Hickory II), 910 F.2d 159, 164 (4th Cir. 1990) (“[Alternatives [that] would not fulfill the transportation needs of the project” are “properly rejected ... as imprudent.”).

Overall, despite its misplaced reliance on Congressional intent, the FHWA’s determination that Avoidance Alternative 2 was not a feasible and prudent alternative to the use of Section 4(f) property was reasonable in light of that plan’s inability to meet the Interchange Project’s purpose and need, and its failure to adequately ensure the safety of non-motorized traffic and pedestrians passing through the intersection. See 23 C.F.R. § 774.17; City of Bridgeton v. FAA, 212 F.3d 448, 461 (8th Cir.2000) (“[A]n alternative that does not effectuate the project’s purposes is, by definition, unreasonable, and need not be evaluated in detail under § 4(f).”) (citation and internal quotations marks omitted).

2. Arbitrary and Capricious Decisionmaking

The inquiry, however, does not end there, for I must examine whether the FHWA’s decision with respect to Avoidance Alternative 2 was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. 814. In so doing, I must not substitute my own judgment for that of the FHWA. See id.

As I have previously recited, an action is arbitrary and capricious under the APA if the agency

relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). In the instant matter, Plaintiffs have not suggested that the FHWA relied on impermissible factors in its consideration of avoidance alternatives, or that the FHWA failed to consider an important aspect of the problem. Rather, at bottom, Plaintiffs take issue with the FHWA’s determination that Avoidance Alternative 2 was imprudent, and accordingly characterize that conclusion as arbitrary and capricious decision-making. However, as I have described, the FHWA’s determination with respect to the prudence of the avoidance alternatives, including Avoidance Alternative 2, was reasonable.

Ultimately, Plaintiffs’ contention that the FHWA acted arbitrarily and capriciously is inadequately substantiated, and simply amounts to the sort of “difference in view” that the Supreme Court stated was insufficient to support a finding of arbitrariness and capriciousness under the APA. Id. Further, although it may not be overwhelming, there is sufficient evidence in the administrative record to support the FHWA’s findings that the avoidance alternatives were imprudent. Consequently, I find that the FHWA’s Section 4(f) determinations were not arbitrary or capricious.

3. Procedural Requirements

The final step in an analysis of a Section 4(f) determination requires the reviewing court to consider whether the Secretary of Transportation (or, in this case, the FHWA) followed the necessary procedural steps. In the instant matter, there is no doubt that these procedures were followed. The FHWA undertook studies, analyzed the results, and, ultimately, produced a Final Section 4(f) Evaluation only after providing the public with opportunities for review and comment, and giving officials with jurisdiction over the Section 4(f) properties a chance for coordination and commentary pursuant to 23 C.F.R. § 774.5(a). In the course of preparing the Final Section 4(f) Evaluation, the FHWA followed the regulatory requirements of considering avoidance alternatives (including a no-build alternative) and testing them for feasibility and prudence pursuant to 23 C.F.R. § 774.3(a)(1). After concluding that there were no feasible and prudent total avoidance alternatives, the FHWA, in accordance with 23 C.F.R. § 774.3(c), analyzed the remaining alternatives that use Section 4(f) properties to determine which would cause the least overall harm in light of Section 4(f)’s preservation goals. Upon its selection of Alternative G1 as the preferred alternative, the FHWA developed and included all possible planning to minimize harm to the affected Section 4(f) properties as required by 23 C.F.R. § 774.3(c)(2). Thus, the FHWA properly followed the required procedures.

After a thorough review of the relevant portions of the administrative record, and in light of the foregoing discussion, I find that: (1) the FHWA acted within the scope of its authority and acted reasonably when it determined that there were no feasible and prudent alternatives to the use of Section 4(f) property; (2) the FHWA’s decision was not arbitrary, capricious, an abuse of discretion, or otherwise in discordance with the law; and (3) the FHWA followed proper procedures. For these reasons, I find that the FHWA did not violate Section 4(f) by rejecting Avoidance Alternative 2, or, for that matter, any of the other alternatives it carefully considered. Further, I observe that simply because the FHWA did not, when discussing Avoidance Alternative 2, consistently use the terms “unique” and “extraordinary” to describe that alternative’s drawbacks “does not compel a finding that [it] did not comply with section 4(f) and the dictates of Overton Park.” Hickory II, 910 F.2d at 162; see also Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir.1982) (stating that the use of “magic” terminology is not required in a Section 4(f) analysis). As in Hickory II, “the record amply supports the conclusion that the [FHWA] did determine that there were compelling reasons for rejecting the proposed alternatives as not prudent.” Id. at 163. Accordingly, I will not disturb the FHWA’s Section 4(f) decision to proceed with Alternative Gl.

B. NEPA Claims

The National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq., stands as the “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). As such, it declares a national policy in favor of the protection and promotion of environmental quality. See Hughes River Watershed Conservancy v. Glickman (Hughes River I), 81 F.3d 437, 443 (4th Cir.1996) (citing 42 U.S.C. §§ 4321, 4331(a)); see also 40 C.F.R. § 1500.1(c) (stating that the purpose of NEPA is “to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment”).

However, NEPA is fundamentally procedural in nature; “although NEPA establishes environmental quality as a substantive goal, it is well settled that NEPA does not mandate that agencies reach particular substantive results.” Hughes River I, 81 F.3d at 443. The goals of NEPA “are thus realized through a set of action-forcing procedures that require that agencies take a hard look at environmental consequences.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citation and internal quotation marks omitted). So long as “the adverse environmental effects of ... proposed actions are adequately identified and evaluated, agencies are not constrained by NEPA from deciding that other values outweigh the environmental costs.” Hughes River I, 81 F.3d at 443 (citation, internal quotation marks, and alterations omitted).

An agency takes a “hard look” when it “obtains opinions from experts outside the agency, gives careful scientific scrutiny and responds to all legitimate concerns that are raised.” Hughes River Watershed Conservancy v. Johnson (Hughes River II), 165 F.3d 283, 288 (4th Cir.1999). Agency action need not, however, be per-ted. See Sierra Club v. Morton, 510 F.2d 813, 820 (5th Cir.1975) (“Congress did not intend to mandate perfection” when it created NEPA.). If the reviewing court is satisfied that the agency has taken the requisite “hard look,” the court must then consider whether the agency’s conclusions are arbitrary and capricious under the APA. Hughes River II, 165 F.3d at 288. “If the agency has followed the proper procedures mandated by the Act, and if there is a rational basis for its decision, the [reviewing court] will not disturb the agency’s judgment.” Audubon Naturalist Soc’y of the Cent. Atl. States, Inc. v. U.S. Dep’t of Transp., 524 F.Supp.2d 642, 661 (D.Md.2007).

Generally, NEPA requires every agency proposing a “major Federal action” to prepare an environmental impact statement (“EIS”) if the action will “significantly affect[ ] the quality of the human environment.” 42 U.S.C. § 4332(C). Based on regulations promulgated by the Council on Environmental Quality (“CEQ”), agencies must establish procedures identifying “[s]pecific criteria for and identification of those typical classes of action” that require or do not require an EIS. 40 C.F.R. § 1507.3(b)(2). In considering any particular proposed action, an agency must first determine whether, under its own regulations, the proposal would “[n]ormally require!] an [EIS]” or “[n]ormally [would] not require either an [EIS] or an environmental assessment....” Id. §§ 1501.4(a)(1), (2). If the proposed action is not covered by either of these descriptions, the agency must prepare an environmental assessment (“EA”). Id. § 1501.4(b). Based on its analysis in the EA, the agency then must decide whether to prepare an EIS. Id. § 1501.4(c). If the agency determines that an EIS is not necessary, it must issue a finding of no significant impact (“FONSI”). Id. §§ 1501.4(e), 1508.13.

An EA is a “concise public document” which serves to:

(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.

(2) Aid an agency’s compliance with the Act when no environmental impact statement is necessary.

(3) Facilitate preparation of a statement when one is necessary.

40 C.F.R. § 1508.9(a). While there is no “universal formula for what an EA must contain and consider,” Friends of Congaree Swamp v. Fed. Highway Admin., 786 F.Supp.2d 1054, 1062 (D.S.C.2011), an EA must, at a minimum, include discussion of the need for the proposal, alternatives, the environmental impacts of the proposed action and the alternatives, and the agencies and persons consulted, 40 C.F.R. § 1508.9(b). An agency must make a “convincing case” as to why an EIS is not necessary if it so decides after preparation of an EA. Md.-Nat’l Capital Park & Planning Comm’n v. U.S. Postal Serv., 487 F.2d 1029, 1040 (D.C.Cir.1973). In any event, whether issuing an EA or an EIS, the agency’s “hard look” must encompass “a thorough investigation into the environmental impacts of [the] agency’s action and a candid acknowledgment of the risks that those impacts entail.” Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 185 (4th Cir.2005).

1. The FHWA’s Decision Not to Prepare an Environmental Impact Statement

Plaintiffs argue that the FHWA violated NEPA by failing to prepare an EIS. As mentioned, an EIS is required when actions proposed by a federal agency, including the FHWA, could significantly affect the quality of the human environment. 42 U.S.C. § 4332(C); 23 C.F.R. § 771.115(a). Whether a proposed action will have a “significant” effect on the quality of the human environment “is determined by evaluating both the context of the action and the intensity, or severity, of the impact.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 191 (4th Cir.2009) (citing 40 C.F.R. § 1508.27). As used in NEPA, the “context” requirement

means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.

40 C.F.R. § 1508.27(a). When evaluating a proposed action’s “intensity,” an agency should take into account the following ten considerations:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

40 C.F.R. § 1508.27(b). If the agency’s action is “environmentally ‘significant’ according to any of these criteria,” the agency “erred in failing to prepare an EIS.” Pub. Citizen v. Dep’t of Transp., 316 F.3d 1002, 1023 (9th Cir.2003), rev’d on other grounds, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004).

i. Intensity of the Interchange Project’s Environmental Impacts

Plaintiffs maintain that the third, fourth, and seventh of these intensity criteria were satisfied in this case, and thus contend that an EIS should have been prepared. I address these criteria one after another.

Plaintiffs’ brief in support of their motion for summary judgment contains a passing reference to the third criterion above, which instructs a given agency to consider the “unique characteristics” of nearby historic sites and parkland in connection with its proposed action. Plainly, in the instant matter, such lands are the very same properties considered by the FHWA in its Section 4(f) analysis and discussed previously in this memorandum opinion. Plaintiffs do not, however, explain what the unique aspects of those properties are, nor do they suggest that the impacts of the Interchange Project on these five areas would be severe. As I outlined in Part III.A, supra, the effects on the Charlottesville and Albemarle County Courthouse Historic District and the Mclntire/Covenant School were found to be de minimis. Further, the Interchange Project under the preferred alternative would require the use of some (1.1 acres), but not all, of the Rock Hill Property, and some (7.8 acres), though not all, of Mclntire Park. Indeed, only Mclntire Skate Park would be totally displaced. And while I do not discount the value to the community of the facilities that currently exist at the skate park, it cannot be the case that they are “unique” as contemplated in 40 C.F.R. § 1508.27(b)(3) in light of the fact that, prior to construction of the Interchange Project, they will be packed up and transported to a different facility in the area where members of the community will be able to resume using them. All that Plaintiffs offer with regard to this criterion is their contention that the damaging effects to the aforementioned properties, when cumulated, become substantial. Because that argument is better addressed in my examination of the seventh criterion from above, I will defer discussion of it.

With respect to the fourth factor, Plaintiffs assert that the Interchange Project, along with its prior iterations and predecessor proposals, has dominated local news, public discourse, and political affairs for decades. Accordingly, they argue that the FHWA failed to adequately account for “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). I, have no doubt that the Interchange Project and, indeed, the more fundamental issue of what to do, if anything, with the intersection of the Route 250 Bypass and Mclntire Road is politically controversial, in the ordinary sense of that word. However, mere opposition to a given project, even when that opposition is vociferous, does not render the project “controversial” within the meaning of the regulations promulgated by the CEQ. Instead, as the United States Court of Appeals for the Fourth Circuit has observed, the term “highly controversial”

should properly refer to cases where a substantial dispute exists as to the size, nature or effect of the major federal action rather than to the existence of opposition to a use. Otherwise, to require an impact statement whenever a threshold determination dispensing with one is likely to face a court challenge would surrender the determination to opponents of a federal action, no matter whether major or not, nor how insignificant its environmental effect might be.

Rucker v. Willis, 484 F.2d 158, 162 (4th Cir.1973). Indeed, were controversy in the context of NEPA to be equated with opposition in the community, the outcome of an agency’s environmental analysis could routinely be held hostage by any “heckler’s veto.” North Carolina v. FAA, 957 F.2d 1125, 1134 (4th Cir.1992) (citation omitted). According to the FHWA, there has been no opposition whatsoever from any state or federal environmental resource agency, or any official with standing to object. See AR 6, Bates # 000029. In the instant matter, the degree to which the effects on the quality of the human environment would be controversial were the Interchange Project to be completed is not significant enough to require the preparation of an EIS.

The seventh factor listed in 40 C.F.R. § 1508.27(b) lies at the heart of Plaintiffs’ contention that the FHWA was required to prepare an EIS. Plaintiffs submit that the Interchange Project and the MRE are functionally and environmentally intertwined; therefore, the FHWA violated NEPA by failing to adequately consider their joint and cumulative environmental impacts in determining whether an EIS was necessary.

NEPA requires an agency conducting an assessment of a proposed action’s environmental impacts to measure the indirect and cumulative effects of that action. See’ 40 C.F.R. § 1502.16. “Conclusory statements that the indirect and cumulative effects will be minimal or that such effects are inevitable are insufficient under NEPA.” N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 602 (4th Cir.2012). For the purposes of NEPA, a cumulative impact is defined as

the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

40 C.F.R. § 1508.7.

Plainly, it is not sufficient for an agency, when evaluating the impacts of a proposed action on the environment, to gauge the effects of that action in isolation. . Rather, the agency must examine the aggregate impacts of the proposed action and any other actions — past, present, or future — regardless of their source of funding. It is obvious that the MRE fits this bill, for if its construction comes to fruition, its adjacency to the Interchange Project will assuredly, in some respects, produce cumulative impacts on the environment. Therefore, I must assess whether, in the course of determining that the preferred alternative would not significantly impact the environment, the FHWA properly weighed the intensity of the cumulative effects of the Interchange Project and the MRE. See Shenandoah Ecosystems Def. Group v. U.S. Forest Serv., No. 98-2552, 1999 WL 760226, at *4 n. 2 (4th Cir. Sept. 24, 1999) (stating that whether a particular agency properly considered the cumulative impacts of a project is, for the reviewing court, a “case-by-case analysis”).

On October 6, 2009, the FHWA released its Revised EA, in which it summarizes, among other things, its analyses of the Interchange Project’s environmental consequences. The Revised EA, which distills information and data from other technical documents and reports that were prepared during 2006 and 2007, examines the effects of the preferred alternative on the following: land use and socioeconomics, right-of-way and relocation, cultural resources, Section 4(f) resources, air quality, noise levels, water quality, hazardous materials, agriculture, ecology, aesthetics, and pedestrian and bicycle considerations. AR 534, Bates # 004701-30. After discussing these impacts, the Revised EA proceeds to an evaluation of the preferred alternative’s indirect and cumulative effects. Id. at Bates # 004730-37. The FHWA extended the boundary for this analysis of indirect and cumulative impacts approximately one mile in each direction from the existing intersection of the Route 250 Bypass and Mclntire Road. Id. at Bates # 004730. At the outset of the discussion, the FHWA identifies the MRE (and, it should be noted, the Meadowcreek Parkway) as an upcoming transportation priority project that falls within the analysis boundary and, accordingly, must be included in the assessment of cumulative effects. Id. at Bates # 004732.

In the cumulative effects section, the FHWA frankly acknowledges that Alternative G1 and the MRE would have cumulative impacts on Mclntire Park. Specifically, the FHWA states:

Mclntire Road Extended would introduce additional features into the park. Therefore, the context of the cumulative impacts is one whereby past, present, and reasonably foreseeable future actions have affected, and are planned to continue to affect, Mclntire Park independent of the interchange project. The Preferred Alternative would contribute to the incremental impact on the park.... Mclntire Golf Course would be affected as a result of the cumulative effects of the interchange project and Mclntire Road Extended.

Id. at Bates # 004734.

With respect to habitats and wildlife in the area, the Revised EA concludes that the preferred alternative, when combined with unspecified transportation projects, would have cumulative effects on approximately six acres, thereby impacting certain non-endangered species. Id. at Bates # 004736. However, the “incremental impact of the Preferred Alternative would be consistent with the regional pattern of land use change from forest and other wildlife habitat to developed uses that has occurred historically.” Id.

On the whole, with respect to the cumulative effects on the environment of Alternative G1 and the MRE, the Revised EA concludes:

These two roadway projects would have an additive cumulative effect that would include conversion of park recreational land to transportation uses, increased traffic and noise through the park, and impacts to habitat and wildlife in the park. However, the parkway [sic] and interchange projects would also have a substantial beneficial effect by facilitating pedestrian and bicycle access and creating a new entrance to the currently underutilized eastern part of the Mclntire Park, as intended by those responsible for managing the park and its resources ----[T]he City of Charlottesville has demonstrated its intent to develop the eastern portion of Mclntire Park while accommodating Mclntire Road Extended and an interchange at Mclntire Road with the Route 250 B