Consultant helps clear up crossing impasse

Portland-based lawyer says city should determine an environmentally feasible route for the bridge, then propose legislation

Posted: Thursday, February 11, 2010

A consultant hired by the city has issued a memorandum that helps clear up questions that had the proposed North Douglas Crossing at an impasse.

"We've been waiting for this before we take our next steps, whatever they are," said Assembly member Jonathan Anderson, an advocate of the proposed crossing. "In a sense, we've held off doing anything until we get this report. Now... it pushes us to make a decision about how to proceed, ... it puts the ball back in the Assembly's court to say 'Now what. What do we do next?'"

Richard Glick, a Portland-based lawyer specializing in environmental and water law, said in a memo distributed Tuesday that the best direction for the city to take would be to determine an environmentally feasible route for the bridge, then to propose state legislation that would insert that route specifically into the Mendenhall Wetlands State Game Refuge Act. The legislation should also clarify the state process for North Douglas Crossing approval and place the project outside certain Department of Transportation federal requirements pertaining to refuges, he said.

"The report doesn't say that (legislation) is necessary to go forward, but it seems to indicate it would be helpful," City Attorney John Hartle said.

The conclusion says "numerous legal and political risks" can be "greatly reduced" on a state and federal level by that legislation.

Without that legislation, the city would need to navigate the process of gaining state approval that also satisfies federal environmental requirements.

Mayor Bruce Botelho, however, said it's likely the project would trigger stringent federal regulations anyway, and that state regulations are similar.

Botelho said the best approach is not legislation, but "a coordinated multigovernment process" that streamlines adherence to both state and federal requirements.

The main federal requirements are National Environmental Policy Act (NEPA) regulations, and Department of Transportation Act regulations pertaining to wildlife refuges, also known as "4(f)."

"The 4(f) requirements are the greatest hurdle, but there are other agencies and other permits that are required," Botelho said.

Some agencies that would likely become involved in permitting the proposed crossing are the Corps of Engineers, the Environmental Protection Agency, the Coast Guard, the National Marine Fisheries Service, the Alaska Department of Fish and Game, the Alaska Department of Natural Resources, the Federal Highway Administration, the Alaska Department of Transportation and Public Facilities, the city, and others.

In his memo, Glick also clarified which of two seemingly contradictory state processes outlined in the state law governing the refuge should apply to the process.

A few years ago, a city study considered multiple sites for the crossing, some of which were not through the refuge. The five options to which it was narrowed down and mapped are all through the wetlands, however.

"If your goal is to have the most people use it... studies say the further you get out from the Mendenhall Peninsula, people won't do it. The further you get in the other direction, people will use it less, too. The optimal traffic usage... is somewhere around the airport," Anderson said.

Anderson said what comes next for the crossing is somewhat a "chicken or the egg" issue.

The legislation that established the refuge in 1976 said the city might establish a route through the refuge, but does not specify where. The memo recommends establishing an environmentally feasible route through a study in coordination with the Alaska Department of Fish and Game, then recommending that route in legislation. Anderson said to compensate for lost refuge land, the city could extend the refuge.

"We can't ask the state to designate it until we select it, and we can't select it until we go through the NEPA process of including all feasible alternatives, including 'no action,'" he said.

Anderson said that could mean repeating some of the study already completed.

Though an Assembly priority, the North Douglas Crossing is also competing with other projects for money.

Botelho said the Juneau Access Road has siphoned some money prospects away from the crossing. He said the memo will help, however, because it clarifies the city does not have an insurmountable federal permitting problem.

Anderson said the city has $3 million in federal money that it could use either for the North Douglas Crossing Environmental Impact Study, or toward the North Douglas Road extension.

"The city now will have to decide how to divvy up that money, and propose that to DOT," he said.

Cost, said Botelho, is "hard to nail down until we're at a point to reengage." Botelho estimated the city is on the second half of an environmental impact study, which would cost between $3 million and $6 million; Anderson estimated the study would cost between $8 million and $12 million.

"All these different agencies have to have their say to say whether or not they'll allow you to do it," said Anderson. "Whether it costs 50 cents or $80 trillion (depends on) whatever it takes to get them satisfied."

Botelho said the city has asked for funding from its state and federal legislative delegations.

He said he expects the Assembly will discuss the matter at its Feb. 22 meeting and at future committee meetings.

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