April 1999 Update

Q and A on the Corridor H Agreement with a Note on What the Court Didn't Say

Questions most frequently asked about the agreement between Corridor H Alternatives, The WV Department of Transportation, and the Federal Highway Administration:

Are you giving up?
Can the DOT take my land now?
Will the mediator impose a settlement?
How far will the new construction extend?

The short answers are No, No, No, and a little more than four miles, to the point where the Corridor first meets US 219. For more on the agreement, read on.

On Friday, March 26, CHA, WVDOT, and FHWA filed a joint motion in the U.S. Court of Appeals to ask for certain "clarifications" on the Court's injunction against Corridor H construction. These are the points agreed on, and their effects on the injunction:

1. Construction may resume on the Northern Elkins Bypass, an extension of Corridor H FROM its current terminus at Aggregates, on US 33 three miles west of Elkins, TO a new terminus on US 219 one mile north of Elkins. The bypass is four and a quarter miles.

(a) The bypass is excluded from the injunction's requirement that all 4(f) studies must be completed before any of the 100-mile Corridor may be built. Section 4(f) of the federal transportation law protects some historical, cultural, recreational, and wildlife preserve sites from the impacts of highway construction. No sites remained to be studied along the path of the bypass.

(b) The parties agreed that the bypass has "independent utility," i.e., it will be useful whether or not Corridor H is further extended; there is or will be sufficient traffic to justify the cost of a four-lane bypass; and the bypass has a "logical terminus," i.e., it makes sense to complete it at US 219.

2. The parties agreed to use mediation to explore changes in the project that could avoid, reduce, or mitigate impacts to Section 4(f) properties.

(a) WVDOT and FHWA are required by law to avoid such impacts as long as there is a "prudent and feasible alternative." Our experience with Corridor H shows that the agencies prefer to bulldoze and mitigate (see "Lipstick on a Pig," VOICE, August 1998). If that policy continued, we would have to sue them again to protect the threatened sites. We agreed that mediation is a lot cheaper than litigation.

(b) Mediation is different from binding arbitration. The parties did not agree to accept whatever the mediator suggested, and the mediator has no authority to enforce a compromise. If we can reach agreement on any part of our dispute, the court will approve it. The parties will meet face-to-face to seek solutions with the mediator's help.

3. No right-of-way acquisition will be allowed while the injunction remains in effect. WVDOT must stop condemning people's land for an alignment that may have to be changed. For the same reason, no final design work may be done except on the Northern Bypass. The agreement allowed preliminary design work, if necessary, for the same purpose as the mediation effort: to explore possible alternatives that could avoid, reduce, or mitigate impacts to Section 4(f) resources.

4. Finally, WVDOT will provide information to CHA on the schedule of 4(f) studies, so we will be better prepared to comment or object. In the past, WVDOT and its contractor, Baker Co., have spent months and sometimes years on section-by-section studies and then dumped them on us with a two-week deadline to respond. Then they have accused us of delay!

The agreement has caused some confusion, which for the most part we have enjoyed. Old certainties were undermined. New eyes were opened. Ad hominem attacks were reduced. The chairman of the Committee for Corridor H, Bill Hartman, grumbled, "It's a shame money has to be spent on trivial stuff that doesn't mean much to anybody." In his mind, "trivial stuff" included the special places WVDOT must avoid. Now -there's- a minority opinion.

NOTE: After the agreement was announced, Secretary of Transportation Bonasso declared, "The court said Corridor H should be a four-lane." Did rejection of our NEPA claim mean endorsement of the four-lane design? No--the Court of appeals didn't say that. WVDOT does not have to study the alternative of upgrading existing highways over the entire 100 miles, but the issue remains open for Section 4(f)-protected places. Where traffic is low (most of the alignment), a "prudent and feasible alternative" to the impacts of construction must include the option of improving highways we've already built. That's a proper subject for mediation.