May 19, 2005

Cecelia Joy

Project Manager

Colorado Department of Transportation, Region 1

18500 East Colfax

Aurora, CO 80011

Jean Wallace, P.E.

Federal Highway Administration

12300 West Dakota Avenue

Lakewood, CO 80228

Re: 1_70 Mountain Corridor Draft Programmatic Environmental Impact Statement.

 (CHS #30918)

Dear Ms. Joy and Ms. Wallace:

Thank you for the opportunity to review the Draft Programmatic Environmental Impact Statement for the 1-70 Mountain Corridor project.

Due to the length of our letter, we have provided a summary outline of our comments.

            I. SHPO SHOULD BE CONSULTED ON THE RELATIVE

               EFFECTS OF PROJECT ALTERNATIVES PURSUANT

               TO SECTION 106  Page 3

            II. COMMENTS ON THE DPEIS  Page 4

            A. COMMENTS ON THE EXECUTIVE SUMMARY:

                 SHPO HAS QUESTIONS REGARDING HOW

                 THE ENVIRONMENTAL FACTORS INVOLVING

                 HISTORIC PROPERTIES WERE ADEQUATELY

                 CONSIDERED.    Page 4

            • We believe that the FHWA and CDOT may not have considered

                in Tier 1 the effect of all alternatives on historic properties in the

                manner required by FHWA regulations.

            • FHWA’s and CDOT’s reliance solely upon economic affordability

               in choosing  preferred alternatives is contrary to NEPA and

               FHWA regulations.

            • Please provide a clear justification for the $4 billion cost ceiling.

            • Under Section 106, please provide a discussion on the potential

                relative effect of a change in land use.

            • The selection of preferred alternatives should not from a practical

                standpoint prejudice consideration of other alternatives.

B. COMMENTS ON CHAPTER 1, PURPOSE OF AND NEED FOR

     ACTION     Page 6

            • Section 1.1: Summary Purpose and Need Statement. The

               summary purpose and need statement should include

               environmental factors.

C. COMMENTS ON CHAPTER 3, AFFECTED ENVIRONMENTAL

     AND ENVIRONMENTAL CONSEQUENCES   Page 6

            • Section 3.15: Historic Properties and Native American

               Consultation.  Consultation for historic properties has not been

               accomplished pursuant to Section 106.

            • Section 3.16 Section 4(f) Evaluation. The Section 4(f) analysis

               addresses direct effects within the footprint of the alternatives but

               does not address constructive use.

            • Section 3.19 Mitigation Summary. We believe that a mitigation

               summary should be prepared during Tier 1.

D. COMMENTS ON CHAPTER 4, CUMULATIVE IMPACTS

     ANALYSIS    Page 6

            • Chapter 4 does not include a discussion regarding the cumulative

                effects to cultural resources under Section 106.

We would like to begin our comments with a reference to the January 22, 2004 meeting held in our office with staff from Colorado Department of Transportation (CDOT) and their project consultants regarding the role of Section 106 of the National Historic Preservation Act in the tiered (DPEIS). During that meeting we discussed the need to initiate the Section 106 process at Tier 1 because this review had been left out of the NEPA planning process. As a result of the January 2004 meeting, other Section 106 technical assistance and consulting parties’ meetings have been conducted, as stipulated in Section 106. The Revised Reconnaissance Survey of the Interstate 70 Mountain Corridor, which served to identify historic resources within the Area of Potential Effect for Tier 1, was received by our office on February 10, 2005 as well as by the other consulting parties for review and comment, as stipulated in 36 CFR 800.4 of Section 106.

In our opinion, FHWA and CDOT were complying with Section 106 regulations until they made a decision not to complete an assessment of potential relative effects on the list of identified resources (36 CFR 800.5). In short we feel that the Section 106 review process has been complied with as far as the submission of the reconnaissance survey (36 CF1Z 800.4), but has not progressed any further. We have participated in consultation regarding a Tier 1 Programmatic Agreement (PA). As you know, we understand the goal of the PA is to inform how Section 106 studies will be completed in Tier 2. However, it is not clear how the PA will address Tier 1 assessments of relative effects under Section 106.

Section I of the following comments focus on the issue presented in the preceding paragraph. Section II includes Colorado Historical Society’s (SHPO) comments on the DPEIS.

I. SHPO SHOULD BE CONSULTED ON THE RELATIVE EFFECTS OF PROJECT ALTERNATIVES PURSUANT TO SECTION 106

During recent consultations with our office, staff members of the Colorado Department of Transportation (CDOT) and the Federal Highway Administration (FHWA) informed us that they are not planning on completing the evaluation of the relative effects of the various alternatives pursuant to Section 106 of the National Historic Preservation Act. Instead, they intend for a programmatic agreement (PA) following Tier 1 to establish the process for the evaluation of effects on historic properties under Tier 2. Although we agree that a PA is needed to establish the methodology for dealing with cultural resources in Tier 2, we feel that the PA should be informed by the evaluation of the relative effects under Section 106. In our opinion, because no determinations of relative effects have been completed under Section 106, our office has not been given an opportunity to comment on the effects, as stipulated in 36 CFR 800.4(d)(2).

Our opinion is based both upon regulations governing the Section 106 process as well as a letter dated January 26, 2005 from David A. Nicol, FHWA Division Administrator. In the letter Mr. Nicol stated that the relative effects of the alternatives on currently known historic properties would be completed at the Tier 1 level. However, no evaluation of the relative effects under Section 106 has been submitted to our office or the consulting parties for review and comment.

In addition, handouts given to consulting parties during a September 22, 2004 meeting in Silver Plume indicated that the effects assessment would be completed during Tier 1. One handout, entitled “Steps in the Section 106 Process,” states that “the evaluation of effects at Tier I will consist of an analysis of the relative visual, noise, physical, and cumulative impacts of the different alternatives on known and potential historic properties within the APE based on current data. This information is then used as part of the evaluation of alternatives under Tier 1.” Another handout included a project schedule with due dates for consultation regarding the effects analysis. However, this schedule has been replaced with a new Tier 1 schedule received in our office on March 17, 2005 addressing the completion of a Tier 1 PA but not mentioning the effects assessment.

Our review of the DPEIS leads us to feel that sufficient information may have been gathered to complete an evaluation of the relative effects of the alternatives under Section 106. Much of the information presented under the NEPA environmental studies could probably be used to conduct an evaluation of the relative effects under Section 106 in Tier 1. Because the information appears available, it is not clear why the previously proposed evaluations of the relative effects were not completed for Section 106 and sent to our office and the consulting parties for review and comment.

II. COMMENTS ON THE DPEIS

A. COMMENTS ON THE EXECUTIVE SUMMARY: SHPO HAS QUE TIONS REGARDING HOW THE ENVIRONMENTAL FACTORS IN VOL VING HISTORIC PROPERTIES WERE ADEQUATELY CONSIDERED.

We believe that the FHWA and CDOT may not have considered in Tier 1 the effect of all alternatives on historic properties in the manner required by FHWA regulations.

Page ES-1 of the DPEIS includes the statement that “the primary purpose for conducting a tiered analysis is to determine what mode(s) of transportation will operate in the corridor from the fringes of the Denver metropolitan area to Glenwood Springs, the general alternative alignments, and the general nature of the infrastructure needed to accommodate the mode(s).” This stated purpose does not appear to be consistent with FHWA regulations requiring that “the first tier EIS would focus on broad issues such as general location, mode choice, and area wide air quality and land use implications of the major alternatives (23 CFR 771.111(g)).” While the DPEIS states that the Tier 1 analysis includes an evaluation of “a host of environmental and community effects of the alternatives,” the DPEIS does not explain how these factors received the same level of consideration as the primary purposes of DPEIS Tier 1 set forth in FHWA regulations.

In addition, according to 36 CFR 800.10 under Section 106 (Special Requirements for protecting National Historic Landmarks), FHWA and CDOT are required “to the maximum extent possible, undertake such planning and action as may be necessary to minimize harm to any National Historic Landmark...” It is not clear from the DPEIS how a higher standard of care was taken in evaluating the effects of the alternatives to the Georgetown-Silver Plume National Historic Landmark District. Also see Section 110(f) of the National Historic Preservation Act regarding a federal agencies responsibilities toward a National Historic Landmark.

FHWA’s and CDOT’s reliance solely upon economic affordability in choosing preferred alternatives is contrary to NEPA and FHWA regulations.

On Page ES-2 of the DPEIS, the preferred alternatives are defined as: “Those that best meet the underlying need and are reasonable from an economic affordability point of view.” This statement appears to be inconsistent with the answer to question 4(a) of the Forty Most Asked Questions concerning Council on Environmental Quality (CEQ ‘s) NEPA Regulations (March 16, 1981). In the CEQ document, an agency’s preferred alternative is defined as “the alternative which the agency believes would fulfill its statutory mission and responsibilities, giving consideration to economic, environmental, technical, and other factors.” We feel that the DPEIS criteria for the preferred alternatives omit the CEQ-mandated consideration Of environmental and other factors, such as cultural resources. Therefore, we need to inquire whether the environmental, technical, and other factors as described in the CEQ guidelines were given the same consideration in the evaluation of the preferred alternatives as the economic affordability of the alternative.

To provide an example in which environmental factors were specifically considered we point you to the 1-69 tiered EIS completed in July 2002 by the Indiana DOT and FHWA. In that case, the alternatives eliminated met one of two requirements: (1) alternatives that were not preferred for environmental reasons; and (2) alternatives that were not preferred because of their poor performance in meeting the goals of the project (pg. S_33 of the Summary of the 1-69 Final Environmental Impact Statement). It appears that a similar type of analysis was not used for the 1-70 Mountain Corridor project.

Also on Page ES-2 of the DPEIS, FHWA and CDOT conclude that the preferred alternatives were chosen using CEQ guidance by including only “those that are practical or feasible from the technical economic standpoint, and using common sense, rather than simply desirable from the standpoint of the applicant.” However, additional guidance on the determination of reasonable alternatives offered by FHWA states that “more typically, costs and economic viability are considered along with other factors in determining the reasonableness of alternatives. (Federal Highway Administration Memorandum from D.J. Gribbin, Chief Counsel (HCC_1) thru David Nicol, Division Administrator (HAD-CO) to Peggy Catlin, Deputy Executive Director CDOT, dated October 15, 2004). We recommend that a re-evaluation of the alternatives include the FHWA-recommended guidance of considering, along with costs and economic viability, other factors in determining the preferred alternatives.

Please provide a clear justification for the $4 billion cost ceiling.

On Page ES-23 of the DPEIS, under the “Cost Comparisons” subheading, the DPEIS states that the Colorado Transportation Commission has committed $1.6 billion to the 1-70 Mountain Corridor project. In addition, a total of $4 billion has been set as a cost ceiling for evaluating alternatives. The DPEIS does not include a justification for setting the reasonableness threshold at $4 billion. If cost is the primary factor in determining the reasonableness of the alternatives as proposed, a clear justification for the $4 billion cap is needed in order to understand the selection of the preferred alternatives. SHPO and consulting parties have requested the basis of the $4 billion ceiling on many occasions. On each occasion we were told that this would be included in the DPEIS. However, it is not included.

Under Section 106, please provide a discussion on the potential relative effect of a change in land use.

On Page ES-43 under the subheading” Cumulative Impacts/Historic Communities,” the potential effect of a change in land use is not discussed. According to Lamar Smith, Team Leader for Training, Technology, and Technical Assistance, Office of Project Development and Environmental Review, Federal Highway Administration Headquarters (Washington, DC), a change in land use should be considered in evaluating cumulative impacts (Center for Transportation and Environment: Teleconference Series #31 Lessons Learned in Assessing Indirect and Cumulative Impacts of Transportation Projects, August 26, 2004. Found at website:

http://1 52.14.30.1 50/CTE/TechTransfer/Teleconferences/webcast.asp?ID=3 1). Land use patterns are an important component of historic settings within the 1_70 corridor.

In addition, the Advisory Council on Historic Preservation (ACHP) has published guidance regarding the relationship between highway projects and cultural resources that may not have been followed. According to the ACBP, “highway construction clearly has the potential to affect historic properties in the area or areas the highway traverses, as well as in the immediate right-of- way. If it can reasonably be anticipated that the highway, once built, will cause or accelerate changes in land use or traffic patterns in other areas, these changes are also potential adverse effects of the undertaking (pg. 48, The Advisory Council on Historic Preservation. The Section 106 Essentials: 2004 Participant’s Handbook).”

The selection of preferred alternatives should not from a practical standpoint prejudice consideration of other alternatives.

Page ES-47 of the DPEIS reiterates the statement that reasonable alternatives include “those that are practical or feasible from the technical and economic standpoint.” However, CEQ guidelines provide that reasonable alternatives, should in addition to meeting project objectives and resolving need, alleviate potentially significant impacts to important resources. The CEQ is also quite clear that agencies should not limit their list of alternatives to those that are less expensive, easy, or the agency’s favorite approach. According to the CEQ, potential reasonable alternatives should also be evaluated to see if they meet the NEPA requirements of Title I, Section 101, which stresses the importance of preserving historic, cultural, and natural resources as well as achieving a balance between population, economic growth and resource use (40 CFR 1502.2(d)).

We would like to provide an example from an 1-70 project in Missouri. A guidance memorandum written by Frederick Skaer, Director of the Office of NEPA Facilitation/FHWA, dated June 18, 2001 was provided to the Missouri Department of Transportation regarding a tiered EIS project for 1_70 from Kansas City to St. Louis. On the second page of the memorandum, Mr. Skaer provides guidance on establishing a tiered process. He emphasizes that preferred alternatives should not from a practical standpoint restrict consideration of alternatives for other alternatives. According to Mr. Skaer:

                “The heart of the test’s third part is focused on avoiding undesirable outcomes on other reasonably foreseeable transportation improvements, rather than simply preserving the ability to consider alternatives in the abstract. With that in mind, we recommend that you pay specific attention in the first tier of analysis to structuring the decision-making so that the first tier strategic choices made concerning an improvement strategy for 1-70 in its entirety not restrict the second tier location and design decisions to alternatives, which have highly undesirable consequences, such as unusually severe impacts to communities or the natural environment that                might have been avoided with a different first tier strategy.”

Mr. Skaer also conveys his concern that Tier 1 studies should be sufficiently complete to prevent compromising important resources during the selection of the preferred alternatives.

B. COMMENTS ON CHAPTER 1, PURPOSE OF AND NEED FOR

    ACTION

Section 1.1: Summary Purpose and Need Statement. The summary purpose and need statement should include environmental factors.

According to the DPEIS, the Colorado project’s purpose and need statement is “to increase capacity, improve accessibility and mobility, and decrease congestion.” On the contrary, the Missouri 1-70 project’s purpose and need statement was “to provide a safe, efficient, environmentally sound and cost-effective transportation facility that responds to the needs of the Study Corridor in addition to the expectations of a nationally important interstate (Final First Tier Environmental Impact Statement, October 29, 2001).” It appears that no consideration of environmental factors was made in the need and purpose statement for the DPEIS.

C. COMMENTS ON CHAPTER 3, AFFECTED ENVIRONMENTAL AND ENVIRONMENTAL CONSEQUENCES

Section 3.15: Historic Properties and Native American Consultation

For historic properties, consultation has not been fully accomplished pursuant to Section106.

Throughout Chapter 3 of the DPEIS, references are made to evaluations of effects on historic resources under Section 106. However, in our opinion, the evaluations did not involve consultation with our office and the other consulting parties. It is not clear in Chapter 3 which studies refer to NEPA evaluations and which evaluations were made pursuant to Section 106.

Geologic Hazards: On page 3.7-13, Table 3.7-2 lists the geological conditions and severity of the proposed alternatives. Some of the highway widening and transit alternatives appear to pose the greatest geologic hazards. The chapter does not address_ why these alternatives were selected as preferred when they appear to have severe geological hazards. In addition, for several of the highway widening alternatives, the section states that a tunnel “would avoid many of the geologic hazard areas.” According to the Table 3.7-1, the geologic condition at the Georgetown Hill/Incline is characterized as ranging from low to severe. The DPEIS is not clear whether a tunnel at the Georgetown Hill/Incline was considered to avoid the geologic hazards in that area.

Noise Evaluations: On page 3.15_3 the DPEIS text states: “Although there are no specific noise guidelines or regulations pertaining to historic properties, the standard noise abatement criteria would apply. These would require that mitigation be considered for receptors when the Leq exceeds 66 dB(A). . .or when predicted noise levels for future conditions exceed the existing noise levels by 10 dB(A) or more.” Similar language is included in the text on page 3.15_4: “Because there are no established noise evaluation criteria for historic properties under Section 106 regulations... FHWA noise abatement criteria and CDOT Noise Analysis and Abatement Guidelines have been adopted.” We feel that these statements are not accurate for Section 106 consultation and contradict both the language cited under 36 CFR 800.5(a)(2)(v) as well as DPEIS text on page 3.15_4 which correctly describes the evaluation criteria used to determine the potential affects of noise to historic properties. Section 106 does require evaluation of effects caused by the “introduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features.” This evaluation should be carried out by the lead agency in consultation with the SHPO and other consulting parties. Neither the SHPO nor the other consulting parties have been consulted with, nor do they concur with the use of FHWA noise abatement criteria or CDOT Noise Analysis and Abatement Guidelines. Therefore, use of these standards for the evaluation of noise under Section 106 without consulting the SHPO and other consulting parities is inappropriate. We request that you initiate consultation regarding this matter with our office and the consulting parties.

Assessment of direct and indirect effects: On page 3.15_3 the DPEIS states that potential direct and indirect effects were assessed at the Tier 1 level for historic properties located within the APE. Again, as previously stated, these evaluations where done without consultation with our office or other consulting parties. Therefore, we are unable to concur with the findings as presented within the Section 106 analysis. In addition, we find the presentation of the environmental evaluations confusing because it is unclear whether evaluations apply to NEPA or Section 106 methodologies. In order to eliminate the confusion of the environmental evaluations, we recommend submitting to our office and other consulting parties a separate Section 106 study for the evaluation of relative effects for review and comment.

We urge you to study the Indiana 1-69 tiered process for guidance. In that case, within the Tier 1 analysis, the Indiana DOT and FHWA completed a Section 106 report which evaluated the relative effects of the alternatives (please refer to the 1-69 project website at http://deis.i69indyevn.org).

SHPO acknowledges that an agreement has been executed between FHWA and the Native American tribes.

Section 3.16: Section 4(l) Evaluation. The Section 4(1) analysis addresses direct effects within the footprint of the alternatives but does not address constructive use.

On pages 3.16-1 and 3 of the DPEIS, only the footprints of the alternatives were evaluated for the 4(f) study. Eleven properties were identified in the footprint. However, the potential of constructive use was not addressed even though the parties involved in the NEPA process agreed on a 3-mile APE for the identification of 4(f) resources. Therefore, how can one determine that there would not be a constructive use if the potential of constructive use was not addressed at Tier 1? In order to avoid the situation, in which a secondary adverse effect is greater than a direct adverse effect, we recommend that the area outside the direct footprint be evaluated in the 4(f) study as well.

In support of this recommendation we point you to 23 CFR 771.135 (Section 4(1) of the Department of Transportation Act adopted by Congress in 1966, also 49 U.S.C. 303.) This regulation states that a Section 4(f) evaluation is intended both to evaluate the potential impacts of the alternatives on Section 4(f) resources as those impacts relate to the decision to be made at Tier 1, as well as to ensure that Tier 2 opportunities to minimize harm to Section 4(f) resources are not precluded by decisions made at Tier 1.

Section 3.19: Mitigation Summary. We believe that a mitigation summary should be prepared during Tier 1.

According to FHWA and CDOT, Section 106 mitigation measures for Tier 1 will be included in the proposed PA. Again, we believe it necessary to understand the relative effects of the alternatives in Tier 1 to inform the mitigation measures in the PA. In addition, there is no mitigation proposal included pursuant to NEPA regulations for the cumulative effects to historic properties (page 3.19-1 3).

D. COMMENTS ON CHAPTER 4, CUMULATIVE IMPACTS ANALYSIS

Chapter 4 does not include a discussion regarding the cumulative effects to cultural resources under Section 106.

NEPA and Section 106 use different methodology to minimize and resolve cumulative effects to cultural resources. On page 4-33, the DPEIS states that only “historic communities” would be evaluated for cumulative impacts. This methodology does not follow the Section 106 assessment of adverse effect guidance found in 36 CFR 800.5(a)(1). Under Section 106, all properties found eligible for or listed in the National Register of Historic Places qualify for review. Section 106 defines an eligible historic district, which may be what you mean by the term “historic community,” as a property. This evaluation of the cumulative effects should be done in consultation with our office and consulting parties, as with the direct and indirect effects, under Section 106.

On page 4-35 of the DPEIS, the primary indicator of visual cumulative impacts is defined as the project/setting contrast. . . a NEPA standard. However, evaluation of the historic setting under Section 106 is not based on the project/setting contrast, although it can be considered. The primary question in evaluating historic setting under Section 106 is whether the project significantly diminishes the character-defining features of the historic settings of an individual resource or a historic district. In our opinion no Section 106 evaluation of the relative effects has been completed.

Thank you again for the opportunity to comment. We would like very much to sit down with you and discuss the issues in this letter. You may contact Any Pallante, our Section 106 Compliance Coordinator, at (303) 866_4678 or Dan Corson, our Intergovernmental Services Director, at (303) 866-2673 to schedule such a meeting.

Sincerely,

Georgianna Contiguglia

State Historic Preservation Officer

cc: Robert T. Bowland/ The Historical Society of Idaho Springs

Dana K. Abrahamson/ Historic Georgetown

Lee Behrens/ Georgetown Silver Plume Historic District

Board of Directors/ Mill Creek Valley Historical Society

Janine Weeds/ Town of Silver Plume

Cynthia Neely! Town of Georgetown

Julie Homles/Idaho Springs Historic Preservation Commission

Lisa Schoch/CDOT

Carol Legard/Advisory Council on Historic Preservation