The opinion of the court was delivered by: CURTIN
This case involves the proposed construction of a highway bridge over Lake Chautauqua in southwestern New York State as part of the Southern Tier Expressway [hereinafter "STE"]. Currently pending before this court is defendants' motion to vacate the preliminary injunction against construction which was filed by this court on May 20, 1974, 375 F. Supp. 1158 (W.D.N.Y. 1974),
and affirmed by the Second Circuit Court of Appeals on February 13, 1975, 511 F.2d 489 (2d Cir. 1975). The injunction was issued pending compliance with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. [hereinafter "NEPA"].
After issuance of the injunction the New York State Department of Transportation [hereinafter "NYSDOT"], the Pennsylvania Department of Transportation [hereinafter "Penn DOT"], and the Federal Highway Administration [hereinafter "FHWA"] took steps to process and complete an Environmental Impact Statement [hereinafter "EIS"] in compliance with NEPA for the entire length of the corridor from Hinsdale, New York to Erie, Pennsylvania. This was prepared and processed in conjunction with Environment Consultants, Inc. [hereinafter "ECI"]. After nearly four years the United States Secretary of Transportation gave final approval to the project in February 1978.
A brief summary of the evaluation process follows. First, upon completion of extensive research into the Southern Tier region and preparation of a number of reports covering the findings, an assessment report which examined 87 possible transportation solutions to the region's economic stagnation and isolation problems was issued in February 1976.
The report recommended that substantial improvement be made in the region's highway system. Thereafter, in July 1976, a project report was published which proposed 12 alternative corridors between Hinsdale and Erie.
A Draft Environmental Impact Statement [hereinafter "DEIS"] was then prepared and made available to the public and to appropriate federal, state, and local agencies on November 4, 1976. Public hearings were held December 14-16, 1976 in Jamestown and Salamanca, New York and Greenfield Township, Pennsylvania.
After comments were received, processing of the Final Environmental Impact Statement [hereinafter "FEIS"] began. In completed form it comprises three volumes and contains 1857 pages. It recommends Alternative #1, the "Southern Tier Expressway Route," which from Hinsdale goes to Olean, Salamanca, and Jamestown across Lake Chautauqua to Sherman and then to I-90 near Erie, Pennsylvania.
The FEIS was adopted by NYSDOT on April 13, 1977 and by the FHWA on September 23, 1977. Legal notice of FEIS availability was published locally in October 1977. In addition, the FEIS was sent to the Council on Environmental Quality and notice of availability was published in the Federal Register on Friday, October 14, 1977, 42 F.R. 55253 at 55256.
FHWA, however, required further documentation before making its recommendation regarding the portion of the project between Bemus Point and I-90. Two supporting position papers were then presented by NYSDOT, one of which is included as an addendum to the FEIS (Ex. N).
On February 2, 1978 and February 9, 1978 the United States Department of Transportation [hereinafter "USDOT"] and FHWA, respectively, concurred in the recommendation of Alternative #1, including the construction of the Lake Chautauqua bridge. The FEIS was then transmitted to the Environmental Protection Agency with notice of its availability published in the Federal Register on March 3, 1978, 43 F.R. 8844 at 8846.
In reaching my decision I have reviewed carefully the FEIS, the affidavits and legal memoranda submitted by the parties, and have heard oral argument on May 1, 1978 and May 4, 1978.
Although my preliminary injunction order was directed solely at bridge construction over Lake Chautauqua (Parcel 5c), the defendants have prepared their EIS for the entire STE from Hinsdale to the New York-Pennsylvania line. Plaintiff has urged the court to consider not only NEPA compliance on the bridge section but also on the proposed routes as they affect the eastern section of the highway near Allegheny State Park and Salamanca, New York.
Plaintiff argues that if the court were to approve bridge construction, there would be no remaining alternative but to complete the STE sections which affect the Allegheny State Park area. Based on Greene County Planning Board v. F.P.C., 559 F.2d 1227 (2d Cir. 1976), plaintiff argues that to consider only the bridge issue would be to "segment" the project and to present the danger of improperly "piggybacking" several related projects only to discover that the overall combination of the projects may do more harm than good. See Greene County, supra at 1232.
I have carefully examined the proposed alternatives for the STE east of Jamestown. See Appendix Map. It is clear that, regardless of the decision regarding bridge construction, possible alternative routes may extend from Hinsdale to Randolph (Points A-E on Map) which avoid the numerous NEPA and § 4(f) questions in the Salamanca area raised by DOT.
Therefore I will consider the question of defendants' compliance with environmental considerations on the Lake ...