06-2391. Southwest Gulf Railroad Company-Construction and Operation Exemption-Medina County, TX

AGENCY:

Surface Transportation Board, Transportation.

ACTION:

Notice of intent to prepare a Supplemental Draft Environmental Impact Statement.

SUMMARY:

This Notice discusses the environmental review process conducted thus far for this proceeding and the basis for determining that a Supplemental Draft Environmental Impact Statement is needed; the scope of the Supplemental Draft Environmental Impact Statement; and the remaining steps necessary to conclude the environmental review process.

FOR FURTHER INFORMATION CONTACT:

Ms. Rini Ghosh, Section of Environmental Analysis, Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001, or by phone at [phone]. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339. The Web site for the Surface Transportation Board is http://www.stb.dot.gov.

SUPPLEMENTARY INFORMATION:

Background

On February 27, 2003, Southwest Gulf Railroad Company (SGR) filed a petition with the Surface Transportation Board (Board) pursuant to 49 U.S.C. 10502 for authority to construct and operate a new rail line in Medina County, Texas. The proposal involves the construction and operation of approximately seven miles of new rail line from a Vulcan Construction Materials, LP (VCM) proposed limestone quarry to the Union Pacific Railroad Company rail line near Dunlay, Texas. The Board's Section of Environmental Analysis (SEA) issued a Draft Environmental Impact Statement (Draft EIS) on November 5, 2004, for public review and comment. The Draft EIS evaluated the potential environmental impacts that could result from SGR's proposed rail line construction and operation, four alternatives to SGR's proposed rail line (including the No-Action Alternative) and recommended mitigation that could be undertaken to reduce the potential impacts identified.

In response to the Draft EIS, SEA has received approximately 120 written comment letters to date,^[1] as well as 75 oral comments submitted at two public meetings held in Hondo, Texas, on December 2, 2004 (SEA has considered each time a commenter spoke as one comment, even though several commenters spoke multiple times).

SEA has carefully reviewed all comments received, as well as additional information about the project proposal submitted by SGR, and has decided to prepare a concise Supplemental Draft EIS (SDEIS) that focuses on three specific matters. The SDEIS will contain a discussion of the following: (1) Evaluation of three alternative rail routes that were not studied in detail in the Draft EIS and a comparison of these three alternative routes to the four rail routes previously studied in the Draft EIS; (2) a discussion of the progress of additional historic property identification efforts; (3) and the additional noise analysis that SEA will perform, based on updated operational data (that trains may operate during nighttime hours) provided by SGR. Below, we discuss the following: (1) The environmental review process for this proceeding thus far and the rationale for determining that a SDEIS is needed; (2) the scope of the SDEIS; and (3) the remaining steps in the environmental review process.

Background of the Environmental Review Process to Date

Under the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA), the Board must consider the environmental impacts of actions requiring Board authorization and complete its environmental review before making a final decision on a proposed action. SEA is the office within the Board that carries out the Board's responsibilities under NEPA and related environmental laws and regulations, including the Council on Environmental Quality's (CEQ) regulations for implementing NEPA at 40 CFR part 1500, the Board's environmental regulations at 49 CFR part 1105, and the National Historic Preservation Act (NHPA) of 1966, as amended, 16 U.S.C. 470.

SEA began the environmental review of SGR's proposal by consulting with appropriate Federal, state, and local agencies, as well as with SGR, and conducting technical surveys and analyses. Due to substantial early public interest in SGR's proposal, SEA conducted an informational Open House in Hondo, Texas, on June 12, 2003, and received over 100 comment letters in response to the Open House, which raised concerns regarding potential environmental impacts.

SEA reviewed the comments received and continued to conduct technical studies, which included the identification of historic properties in the project area. SEA also initiated consultation with the Texas Historic Commission (THC), in accordance with the regulations implementing Section 106 of NHPA at 36 CFR part 800 and identified several consulting parties to the Section 106 process.

On October 10, 2003, SEA issued a Preliminary Cultural Resources Assessment report to the then-identified Section 106 consulting parties for review and comment. The report summarized the historic properties identified in the project area, which included a potential historic district, and set forth SEA's preliminary conclusions and recommendations regarding the cultural resources in the proposed project area. The THC, the consulting parties, and other individuals submitted comment letters in response to the report.^[2]

Based on the nature and content of the numerous public and agency comments received, SEA determined that the effects of the proposed project on the quality of the human environment are likely to be highly controversial, and that thus, pursuant to 40 CFR 1508.27(b)(4), preparation of an EIS would be appropriate. On January 28, 2004, SEA issued a Notice of Intent to Prepare an EIS and Draft Scope of Study for the EIS (Draft Scope) for public review and comment. SEA received approximately 100 comment letters in response to the Draft Scope. SEA reviewed and carefully considered the comments in preparing the Final Scope of Study for the EIS (Final Scope), which was issued on May 7, 2004. SEA then continued to conduct appropriate studies and analyses for the environmental review of SGR's proposed project.

Additional cultural resources identification efforts were conducted. Through these efforts, SEA identified a potential rural historic landscape in the project area. In consultation with the THC and SGR, SEA developed a draft Programmatic Agreement to mitigate potential effects on cultural resources in the area, which SEA included in the Draft EIS for public review and comment.

As stated above, SEA issued the Draft EIS for public review and comment on November 5, 2004. In the Draft EIS, SEA evaluated the environmental effects of the proposed rail line construction and operation for the following impact categories, as identified in the Final Scope: Transportation and traffic safety; public health and worker health and safety; water resources; biological resources; air quality; geology and soils (including karst features); land use; environmental justice; noise; vibration; recreation and visual resources; cultural resources; and socioeconomics. SEA also studied the potential cumulative effects and indirect effects that could be caused by the proposed project. The alternatives that SEA studied in depth included four potential rail alignments (the Proposed Route, Alternative 1, Alternative 2, and Alternative 3) and the No-Action Alternative (which SEA defined as the use of trucks to transport limestone from VCM's quarry to the UP rail line, based on SGR's statements that VCM would transport the material by truck if SGR's rail line were not built).^[3]

While some of the commenters to the Draft EIS expressed support for SGR's proposed project, the majority of the commenters expressed opposition to the project and raised concerns about the Draft EIS. The comments covered the following topics:

• Allegations that the Draft EIS is inadequate and requests for an SDEIS to be prepared.
• General statements of opposition or support for the project.
• Concerns regarding potential air quality impacts.
• Requests that other alternative rail routes be studied (specifically, that an alignment that uses part of the old Medina Dam rail route in the area would be reasonable and feasible).
• Allegations that use of trucks to transport limestone from the quarry to the UP rail line would not be feasible, and that thus, SEA has improperly defined the No-Action Alternative.
• Concerns regarding potential impacts to water and water-associated resources (such as the Edwards Aquifer, floodplains and flooding impacts, groundwater, the Medina Lake Dam, stream crossings, surface waters, water supplies, wells, and wetlands).
• Concerns regarding potential impacts to biological resources in the area.
• Questions regarding how SGR could be considered a common carrier and questions about condemnation of private properties.
• Concerns regarding potential impacts to cultural resources.
• Concerns regarding potential cumulative impacts (i.e. combined impacts from SGR's rail line construction and operation and other projects in the area).
• Concerns about the potential impacts to pipelines in the area.
• Concerns about indirect impacts (i.e. impacts that would be caused by the proposed rail line construction and operation but that would be felt later in time or beyond the proposed project area).
• Concerns about impacts to karst features.
• Concerns about impacts to existing land uses.
• Requests to consider VCM's quarry and SGR's rail line as connected actions (i.e. as combined components of one overall proposed action).
• Questions regarding SGR's plans to maintain the rail line and the rail line right-of-way.
• Requests for more-detailed maps and graphics.
• Requests for additional mitigation.
• Concerns about potential noise impacts.
• Questions regarding the details of SGR's proposed train operations.
• Requests for more detailed information about the construction and engineering of the proposed rail line.
• Allegations that SEA has not been sufficiently responsive to the public.
• Questions regarding the purpose and need for SGR's proposed project.
• Concerns regarding potential impacts to recreational and visual resources.
• Concerns regarding potential at-grade crossings and potential safety impacts.
• Concerns regarding potential socioeconomic impacts.
• Concerns regarding potential impacts to prime farmland soils.
• Concerns regarding impacts to local traffic and transportation.
• Concerns regarding impacts from an increase in truck traffic on area roadways.
• Concerns about potential vibration impacts.
• Allegations that SEA's field studies and methodology were inadequate.

The comments received included those from some of the Section 106 consulting parties regarding the results of the cultural resources analysis in the Draft EIS. Particular concern was expressed by the THC and the Advisory Council on Historic Preservation regarding the need to further identify the potential rural historic landscape that had been discussed in the Draft EIS and to look at additional rail alternatives that could potentially avoid historic properties near Quihi, Texas. As a result of these consultations, SEA determined that a separate study of the rural historic landscape was warranted. The study is currently ongoing.

In order to respond to and to better assess all the comments to the Draft EIS, SEA requested and received additional information from SGR.^[4] In particular, SEA requested information regarding how SGR had developed the four potential rail alignment routes that SEA studied in depth in the Draft EIS (the Proposed Route, Alternative 1, Alternative 2, and Alternative 3) and whether SGR had studied the feasibility of rail routes that are farther to the west or farther to the east of those four alignments and that could potentially bypass the Quihi area.

The Development of Rail Line Alternatives. In response to SEA's request, SGR submitted information stating that initially 15 potential rail alignments had been considered, all of which were in the same general area as the four alignments considered in depth in the Draft EIS. According to SGR, these 15 alignments consisted of eight basic alignments and seven variations of those alignments. SGR explained that it had screened the alignments by using specific criteria including: Avoidance of wetlands; topography (avoidance of grades in excess of 1%); avoidance of curves in excess of 4 degrees near the ends of the line and 3 degrees near the central part of the line; limiting the number of properties required to be crossed; and minimization of the number of properties that might have to be bisected. According to SGR, apart from the Proposed Route, Alternative 1, Alternative 2, and Alternative 3, none of the other initial routes fully satisfied these screening criteria.

SGR also asserted that other alternative alignments further to the east or to the west of the routes studied in depth in the Draft EIS, essentially bypassing the Quihi area, would not be reasonable or feasible. According to SGR, among other problems, a western bypass route would traverse areas containing a large number of historic resources and would also cross more floodplain than any of the four routes studied in depth in the Draft EIS.

As for an eastern bypass route, SGR stated that any such route would require a degree of cut and fill that would be much greater than the four routes studied in depth in the Draft EIS, making such a route infeasible. Nevertheless, in order to address the feasibility of an eastern bypass route, and to respond to SEA's specific questions regarding the determination of cut and fill volumes, SGR developed two eastern alignments (the Eastern Bypass Route and SGR's Modified Medina Dam Route) and provided SEA with a study of the cut and fill calculations for these two routes as compared to the Proposed Route, Alternative 1, Alternative 2, and Alternative 3.

One of these routes, SGR's Modified Medina Dam Route, had initially been developed prior to issuance of the Draft EIS. The Medina County Environmental Action Association (MCEAA), as well as several other parties, had submitted comments in response to the Draft Scope suggesting as an alternative rail alignment one that used a portion of railroad right-of-way utilized to facilitate the construction of the Medina Dam in the early 1900s. According to MCEAA, such an alignment would cause fewer potential environmental impacts than the Proposed Route, Alternative 1, Alternative 2, or Alternative 3. In particular, MCEAA asserted that a route using a portion or portions of the old Medina Dam route would traverse less floodplain and impact fewer historic resources than the Proposed Route, Alternative 1, Alternative 2, or Alternative 3.

In response to MCEAA's comments, SGR had submitted information stating that it had assessed several variations that would utilize part of the old Medina Dam route and connect the UP rail line to VCM's proposed quarry, including SGR's Modified Medina Dam Route. SGR stated at the time that none of these routes would be reasonable and feasible, due to the amount of cut and fill that would be needed.

As discussed in the Draft EIS, SEA independently evaluated the information provided by SGR regarding potential routes that could use portions of the old Medina Dam route. Based on the information then available, SEA concurred that no routes using the old Medina Dam route appeared to be reasonable and feasible.

The cut and fill calculations submitted by SGR subsequent to issuance of the Draft EIS and SEA's preliminary review of that information supports SEA's initial conclusion that a rail route that traverses the area to the east of the alignments considered in depth in the Draft EIS would require greater amounts of cut and fill to build.

However, MCEAA has submitted comments challenging the accuracy of the cut and fill calculations prepared by SGR and suggests that another alternative rail route that would use a portion of the old Medina Dam route should now be studied. According to MCEAA, this other alternative (the MCEAA Medina Dam Alternative), is a reasonable and feasible alternative that could require less cut and fill than the eastern routes developed by SGR. MCEAA also alleges that the grading and design considerations used by SGR to determine cut and fill volumes may not be appropriate.

Due to the controversy surrounding the cut and fill volumes here, SEA now believes that, in this proceeding, cut and fill volumes alone should not be a basis for excluding a potential rail route from being considered reasonable and feasible. While cut and fill volumes may be important in distinguishing between routes or in determining which route is ultimately environmentally preferable, SEA will not rely solely on cut and fill volumes to eliminate a potential route from detailed study in this proceeding.

The Reasonable Range of Rail Line Alternatives for this Environmental Review Process. As discussed in the Draft EIS, as part of the environmental review process required by NEPA, an agency must evaluate all reasonable alternatives and the no-action alternative, and briefly discuss reasons for eliminating any unreasonable alternatives from further consideration.^[5] The reasonable alternatives considered in detail, including the proposed action, should be analyzed in enough depth for reviewers to evaluate their comparative merits.^[6] The goals of an action delimit the universe of the action's reasonable alternatives.^[7] The objectives must not be defined so narrowly that all alternatives are effectively foreclosed, nor should they be defined so broadly that an “infinite number” of alternatives might further the goals and the project would “collapse under the weight” of the resulting analysis.^[8] A reasonable range of alternatives need not include all possible alternatives as long as examples from a full spectrum of alternatives are covered.^[9]

The primary purpose of SGR's proposed rail line construction and operation is to transport limestone from VCM's quarry to the UP rail line for shipments to markets in eastern Texas. Thus, in order to serve this purpose, a reasonable and feasible rail alignment would need to connect to the proposed rail loading track at the quarry site and to the existing UP rail line in a manner that would enable outbound shipments from the quarry to travel east.^[10]

As discussed in the Draft EIS, SEA has already conducted an in-depth analysis of four potential rail alignments (Proposed Route, Alternative 1, Alternative 2, and Alternative 3) that would meet SGR's stated purpose. With several reasonable and feasible rail line alternatives in existence, there is no need at this point to study alternative routes that would clearly have the potential for causing greater environmental impacts. Thus, any alignment that is less environmentally preferable than the four routes identified above would not be reasonable and feasible. Moreover, due to the potential impacts to transportation and traffic safety that would be associated with constructing a grade separated crossing of U.S. Highway 90,^[11] a reasonable and feasible rail line alternative would need to connect to the UP rail line north of U.S. Highway 90. Also, because of the associated increase in potential environmental impacts from an increase in the length of the rail line (air quality impacts; transportation and traffic safety impacts; land use impacts; and impacts to biological resources), an alignment that would be significantly longer than the reasonable and feasible alternatives already studied need not be developed.

Based on all information to date, and the above-discussed criteria, SEA determines that the full spectrum of alternative rail routes for this proceeding should include the following: (1) Rail alignments that traverse directly through the Quihi area (the central corridor); (2) rail alignments that bypass the Quihi area to the east (eastern corridor); (3) and rail alignments that bypass the Quihi area to the west (western corridor). The four alternative rail routes studied in depth in the Draft EIS constitute a reasonable range of alternatives for the central corridor and no further routes in this corridor need to be studied. SGR's Modified Medina Dam Route, the Eastern Bypass Route, and the MCEAA Medina Dam Alternative constitute a reasonable range of alternatives for the eastern corridor.^[12] Furthermore, any western bypass route that is not significantly longer than the four routes studied in the Draft EIS would pass through more floodplain area and would impact a large number of historic resources (including historic resources in the New Fountain, Texas area).^[13] Therefore, any such route would be less environmentally preferable than the four routes studied in depth in the Draft EIS and SEA is excluding any such route (though no such route has been developed to date) from further consideration.

In short, SEA believes that there are currently three alternative rail routes that have been developed in this proceeding (SGR's Modified Medina Dam Route, the Eastern Bypass Route, and the MCEAA Medina Dam Alternative) that are potentially reasonable and feasible but have not yet been studied in depth. These alternatives warrant study in a supplemental EIS.^[14] Therefore, SEA will issue for public review and comment an SDEIS studying these three routes. The attached Figure 1 is a map showing the three additional routes to be studied in the SDEIS, as well as the four rail routes assessed in depth in the Draft EIS (Proposed Route, Alternative 1, Alternative 2, and Alternative 3) and the old Medina Dam route (included for reference). No other alternative rail alignments will be studied in the SDEIS.

Scope of the Supplemental Draft Environmental Impact Statement

The primary purpose of the SDEIS will be to provide the public with an opportunity to review and comment on SEA's analysis of SGR's Modified Medina Dam Route, the Eastern Bypass Route, and the MCEAA Medina Dam Alternative. Thus, the SDEIS will be a focused document, containing an appropriate analysis of these three alternative rail routes and a comparison to the four routes previously studied in detail. The SDEIS will also contain a discussion of the rural historic landscape study, which SEA is currently conducting to assess historic resources in the project area, and a discussion of additional noise analysis that SEA will be performing, based on updated operational data (that trains may operate during nighttime hours) recently provided by SGR.

While comments to the Draft EIS have requested that a SDEIS be prepared to address other issues, SEA believes that the majority of the comments to the Draft EIS can be appropriately responded to in the Final EIS, which will be issued after the conclusion of the comment period in the SDEIS (see below for more detail) and no additional public review and comment is required prior to responding to these comments in a Final EIS. Commenters need not resubmit the comments they made to the Draft EIS; the Final EIS will contain responses to all comments that have been received to date, as well as comments on the SDEIS.

The CEQ regulations implementing NEPA do not require that formal scoping activities be undertaken to determine the scope of study for a supplement.^[15] While the Board's environmental regulations at 49 CFR 1105.10(a)(5) indicate that preparation of a draft scope of study for public review and comment and then a final scope of study that takes into consideration the comments received on the draft scope may be appropriate for a supplemental EIS, because the scope of the SDEIS has been well-defined by the environmental review process to date, such scoping activities need not be undertaken here.

Alternatives considered in detail must be examined in a manner that allows reviewers to compare them equally.^[16] Thus, the scope of analysis for SGR's Modified Medina Dam Route, the Eastern Bypass Route, and the MCEAA Medina Dam Alternative in the SDEIS will be the same as the scope of analysis for the alternatives considered in depth in the Draft EIS, as defined by the Final Scope, issued on May 7, 2004. This will include analysis of the following resource areas: Transportation and traffic safety; public health and worker health and safety; water resources; biological resources; air quality; geology and soils (including karst features); land use; environmental justice; noise; vibration; recreation and visual resources; cultural resources; and socioeconomics. The SDEIS will also provide a comparison of the three eastern routes to the rail routes studied in depth in the Draft EIS.

The Remaining Steps in the Environmental Review Process

Upon its completion, the SDEIS will be made available for public and agency review and comment for at least 45 days. After the close of the comment period on the SDEIS, SEA will review all comments. Then SEA will issue a Final EIS that responds to comments on the Draft EIS and the SDEIS, discusses any additional analysis, and presents SEA's final recommendations to the Board. After issuance of the Final EIS, the environmental review process will be completed.

The Board then will issue a final decision in this proceeding. In reaching a final decision either to approve SGR's proposal, to deny SGR's proposal, or to approve SGR's proposal with conditions, the Board will take into consideration the Draft EIS, the SDEIS, the Final EIS, and all environmental comments that are received.

A paper copy of the entire SDEIS will be sent to parties on the Board's official service list for this proceeding, which includes parties of record, Federally-recognized tribes, Federal, state and local agencies, elected officials, representatives of organizations, and Section 106 consulting parties. The SDEIS will also be posted on the Board's website and copies will be made available in libraries in the vicinity of the project area.

SEA is sending a copy of this Notice to all persons on SEA's environmental mailing list, which is a compilation of local area residents and other individuals who have expressed interest in the environmental review process for this proceeding. Individuals on this environmental mailing list who would like to remain on the mailing list and to receive a paper copy or an electronic copy of the SDEIS are requested to complete and return the enclosed postcard. Those individuals who do not return the enclosed postcard will be removed from the environmental mailing list. If you are not now on and would like to be added to SEA's environmental mailing list for this proceeding, please contact Rini Ghosh at [phone].

By the Board, Victoria Rutson, Chief, Section of Environmental Analysis.

Vernon A. Williams,

Secretary.

Footnotes

1.  Although the official deadline for submitting comments was January 10, 2006, SEA has continued to receive comment letters that were postmarked after that date. In the interests of providing all parties with ample opportunity to participate in the environmental review process, SEA is considering all comments received to date. These comments have been placed in the public record for this proceeding and are available in the Environmental Correspondence section of the Board's Web site at http://www.stb.dot.gov.

2.  The report was also made publicly available by posting on the Board's Web site.

3.  In prior documents, SEA did not capitalize the terms Proposed Route and No-Action Alternative. For the sake of clarity and to establish uniformity with the other alternatives being discussed in this proceeding, SEA has decided to capitalize these terms in this and future documents.

4.  SEA's requests for information and SGR's responses can be found in the Environmental Correspondence section of the public docket for this proceeding and are also available on the Board's Web site.

5.  42 U.S.C. 4332(2)(c)(iii).

6.  See 40 CFR 1502.14.

7.  Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1990).

8.  Id. at 196. See also Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18026 (1981) (Forty Questions), Question 1.

9.  See Forty Questions, Question 1.

10.  See SGR's Petition for Exemption filed with the Board on February 27, 2003 and letter from SGR to SEA dated May 4, 2004 (Environmental Correspondence Traking Number #EI-793).

11.  According to the Texas Department of Transportation's San Antonio District Highway Map for 2004 (2004 Map), the annual Average Daily Traffic (ADT) for U.S. Highway 90 between Castroville, Texas and Dunlay, Texas was 12,900 vehicles and the ADT for U.S. Highway 90 in Hondo, Texas was 16,400 vehicles. Thus, at a minimum, construction of a grade separated crossing of U.S. Highway 90 would cause traffic flow disruptions much greater than construction of the four routes studied in depth in the Draft EIS. Farm to Market Road 2676, the one state road that would be crossed by the Proposed Route, Alternative 1, Alternative 2, or Alternative 3, had an ADT of between 660 vehicles to 1050 vehicles in the project area, according to the 2004 Map.

12.  MCEAA has asserted that the other deviations that SGR initially studied for an alignment that would use part of the old Medina Dam route as well as the original Medina Dam route itself need to be studied further (see letter from MCEAA to SEA, dated October 5, 2005, Environmental Correspondence Tracking Number #EI-1698). However, MCEAA has not shown that SGR's Modified Medina Dam Route, the Eastern Bypass Route, and the MCEAA Median Dam Alternative do not constitute a reasonable range of routes in the eastern corridor. Moreover, the original Medina Dam route on its own would not meet the purpose and need for SGR's rail line, since it does not connect to VCM's proposed quarry.

13.  SEA has not approximated the length that such a route would need to be (because no such route has been developed). However, from a review of the Federal Emergency Management Agency's floodplain map for Medina County, it appears that any western bypass route that would cross a comparable amount of floodplain to the alternative rail routes under consideration would need to connect to the UP rail line many miles to the west of the quarry, which would significantly increase the line's length.

14.  See (Forty Questions), Question 29b.

15.  See 40 CFR 1502.9(c)(4) (“Agencies shall prepare, circulate, and file a supplement in the same fashion (exclusive of scoping) as a draft and final statement unless alternative procedures are approved by the Council”).

16.  See 40 CFR 1502.14(b).