February 2023 - Parks & Recreation - 28

LAW REVIEW
study of the feasibility, costs and
benefits
of converting
the
old
bridge to a non-motorized trail. On
July 21, 2022, MDTA responded
that it would " continue with the
permitted plan to demolish the existing
bridge. " In so doing, MDTA
estimated $46.7 million would be
needed to maintain the existing
bridge for bicycle and pedestrian
use for 30 years.
Charles County, Maryland, and
County, Virginia,
King
George
as well as the Commonwealth of
Virginia also had requested information
about options to retain the
existing bridge. MDTA offered to
transfer ownership, but they all
declined due to prohibitive facility
maintenance costs.
Environmental Law Claims
In their lawsuit, plaintiffs claimed
the defendants had violated various
federal and state environmental laws
by failing to consider the impact of
demolishing the Historic Nice Bridge
without including a separated bike/
ped lane on the new bridge.
In particular, plaintiffs
alleged
violations of several environmental
laws, including Section 4(f) of the
Department of Transportation Act
of 1966; Section 6(f) of the Land
and Water Conservation Fund Act
of 1965 (LWCF); and the National
Environmental Policy Act (NEPA).
In so doing, plaintiffs argued the
defendant agencies had violated
procedural requirements by adopting
a different configuration for the
actual bridge, which eliminated a
dedicated bike/ped lane contained
in the earlier environmental study
and selection process.
Section 4(f)
As cited by the
28 Parks & Recreation | FEBR U AR Y 2 0 2 3
federal
district
court, Section 4(f) of the Department
of Transportation Act of
1966 requires " special effort should
be made to preserve the natural
beauty of public park and recreation
lands, wildlife and waterfowl
refuges, and historic sites " in the
United States. 49 U.S.C. § 303(a).
To that end, the court noted
" Section 4(f) imposes certain restrictions
on the use of such land
incorporated or constructively used
in a federally funded transportation
project. " Moreover, the court
found: " Constructive use would
occur when the proximity of the
transportation project severely impacts
or substantially impairs the
activities,
features,
of properties protected by section
4(f). " In particular, such constructive
use would occur under section
4(f) when " the project results in a
restriction on access which substantially
diminishes the utility of
a significant publicly owned park,
recreation area, or historic site. " 23
C.F.R. § 771.135(p)(4)(iii).
Under Section 4(f), the Secretary
of Transportation may approve a
program or project requiring the
use or constructive use of covered
land in only two scenarios:
First,
the Secretary may approve
programs or projects that
would have a de minimis impact
on the area.
Second, if the impact is more
than de minimis,
the Secretary
may approve the project " only if
(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 park, recreation area,
wildlife and waterfowl refuge, or
historic site resulting from the use. "
49 U.S.C. § 303; 23 C.F.R. § 774.3.
| PARK S ANDRECRE AT ION . OR G
Under Section 4(f), an alternative
would be considered " feasible "
unless, " as a matter of sound engineering, "
it should not be built.
Whether or not an alternative is
" prudent " would require the Secretary
to " consider disruption to the
community and the inherent value
of the property. " Further, land
protected under Section 4(f) may
not be used unless there are " truly
unusual factors present in a particular
case or the cost or community
disruption resulting from alternative
routes reached extraordinary
magnitudes. "
or attributes
Section 4(f) Re-evaluation
The plaintiffs did not dispute the
validity of the original 2012 Final
Section 4(f) Evaluation, nor its reliance
on the 2012 EA and FONSI
prepared under NEPA. Instead,
plaintiffs
challenged MDTA's
alleged failure to perform another
Section 4(f) analysis when the
original plans were changed in the
2019 Project Re-evaluation.
After the initial environmental
analysis, the federal district court
acknowledged that another Section
4(f) approval would be required if
changes in a project would result in
the following:
[A] proposed modification of
the alignment, design, or measures
to minimize harm (after the original
section 4(f) approval) would
result in a substantial increase in
the amount of section 4(f) property
used, a substantial increase in
the adverse impacts to section 4(f)
property, or a substantial reduction
in mitigation measures. 23
C.F.R. § 771.135(m).
The federal district court, however,
found the Re-evaluation had
" compared the effects of the origi
February 2023 - Parks & Recreation

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