Canyon Park Business Center Owners' Association v. Buttigieg

• Court: District Court, W.D. Washington
• Decided: July 25, 2023
• Docket: 2:21-cv-01694
• Status: Unknown

Opinion

1 2

3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 CANYON PARK BUSINESS CENTER OWNERS’ ASSOCIATION, 8 Plaintiff, C21-1694 TSZ 9 v. ORDER 10 PETE BUTTIGIEG, et al., 11 Defendants. 12 THIS MATTER comes before the Court on cross-motions for summary judgment 13 brought by (i) plaintiff Canyon Park Business Center Owners’ Association (“CPBCOA” 14 or the “Association”), docket no. 50, (ii) defendants Roger Millar and the agency of 15 which he is the Secretary, namely the Washington State Department of Transportation 16 (“WSDOT”), docket no. 54, and (iii) defendants Pete Buttigieg, Stephanie Pollack, Ralph 17 Rizzo, and the Federal Highway Administration (“FHWA”),1 docket no. 55. Having 18 reviewed all papers filed in support of, and in opposition to, the motions, and having 19

20 1 The FHWA is an agency within the United States Department of Transportation (“USDOT”); 21 Pete Buttigieg is the Secretary of Transportation, Stephanie Pollack is the Deputy Administrator of the FHWA, and Ralph Rizzo is the Division Administrator of FHWA’s Washington Division, 22 and they are all sued in their official capacities. See Am. Compl. at ¶¶ 23–26 (docket no. 18). 1 taken judicial notice of certain materials outside the administrative record,2 the Court 2 enters the following Order.

3 Background 4 Washington’s King and Snohomish Counties are transected by two freeways, 5 known as I-5 and I-405, which intersect north of Seattle (in Lynnwood) and south of 6 Seattle (in Tukwila). Traffic on portions of I-405 is congested for many hours of the day 7 in both directions as a result of high regional demands and heavy volumes. See WSDOT, 8 Transp. Discipline Report (“TDR”) at § 1.3 (docket no. 35-8 at 281). To increase vehicle

9 capacity and throughput, and to improve mobility and reliability, WSDOT has proposed a 10 project that will, among other things, add an express toll lane (“ETL”) in each direction 11 of I-405 between State Route (“SR”) 522 and SR 527 (between milepost (“MP”) 21.79 12 and MP 27.06) (the “Project”), and create a direct access ramp and inline transit station 13 within the I-405 median at 17th Avenue SE in Bothell.3 See WSDOT & FHWA,

14 Environmental Assessment (“EA”) at 1 (docket no. 38 at 2895). The direct access ramp 15 is the focus of this litigation. 16 17 2 The Court previously granted in part and deferred in part the Association’s motion for judicial notice. See Minute Order (docket no. 56). The deferred portion of the motion is addressed in 18 Section D of the Background. 3 The Project is part of the larger I-405 Corridor Program, the purpose of which is “to improve 19 personal and freight mobility and reduce foreseeable traffic congestion in the corridor in a manner that is safe, reliable, and cost-effective.” See USDOT, Record of Decision at 3 (docket 20 no. 23-1 at 807). The FHWA and the Federal Transit Administration are co-lead agencies with respect to the I-405 Corridor Program, which was developed in coordination with WSDOT, the 21 King County Department of Transportation, and the Central Puget Sound Regional Transit Authority. Id. at 1 (docket no. 23-1 at 805); see also 42 U.S.C. § 4332(2)(G) (as amended by 22 Fiscal Responsibility Act of 2023, Pub. L. No. 118-5, § 321(a)(5), 137 Stat. 10, 39 (2023)). 1 The Project area is highlighted in orange on the following map: 2 ill Creek 3 - 2 ( 4 |

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20 oo edad = 21 See WSDOT & FHWA, Finding of No Significant Impact (“FONSI”) at Ex. 1-1 (docket 22 I no. 37-8 at 295). The direct access ramp at issue is planned for the northern tip of the 23

1 || Project area. A drawing of the interchange between I-405 and SR 527, showing the 2 || configuration of the proposed direct access ramp [item 20], is reproduced below: 3 3 A] ‘| eT | ry i pe ire J ro et] Legend si Wd □□ Ge a ey + Milepost ey Delia net ares Sie xisting WSDO 1 1 Ey i _é g T 4 Ps 4 ‘ Right of Way (527) | ---- Drainage ve io oN — Stream 5 om | a ee) —Trail “Crystal Springs 2 f= ie borer F is Hh Bridge Within SR 527 interchange: i | aid . Municipal 6 Bare —_ 4 yi F Bie aos Boundary hee = eS a ys: "Serres 2. Park / Open Space 7 J Proposed i rey et i et ap sae son.fee on □□ fs | fe Mig □□ Bie] -= Noise Wall a. =] TiGietes ts MEAN □□□ ata Pavement Marking | =e oc 9 ae Ki cos Is 4 fan) ee” em oS See Che NE ae eekanmer eee. A A? lone ee] + i‘). Sam Stormwater Y eC eee a ae i i OT Treatment 10 oe oh eM ote bt ea Ca Additional rg! mes tS eG = Pres foe Pavement c Tn pete . Joti te fe oe le i Mi Detention Pond 11 gia , wy i inet ; C3 . gay Nonmotorized na cy YT a — | ee m4 Connection Cedar A 5 MT | BPavement Rebuild a ee eS Ns ek Pavement 12 be a ee “20 FP ts WB pesurfacing 13 A ee es 15 > ae ef pk bs i a a 4 A i 1 400 500 14 re oe eis we fs tele Sah OF alee Cr | i Nort Fock Berge craig tees! = a re = a has ee ee ctor ee BE oC SNOHOMISH yy Me Wma ee on COUNTY ae, Gaara □ bem : Rg efi TANT okay git □□ Yd |B Goin 16 a ee □□ ae ea ey Bee a = 14. Widen NB |-405 bridge aver 228th St SE a 15. Construct new stormwater outfall a a x a a \ 17 Fl neers minora connection at WOFW ID nas ei a aie 4 ~@q Vy by 17. Construct mew stormwater outfall Si uy 7 J : ae FKenmeey —Bathell | "| 4 16. Construct mew direct access ramps and , ee . i os if 1 18 | inline transit stations he ee ( 19. Reconstruct portion of pedestrian bridge Morthenst 100th itrest ear □ over 1-405 Existing Kinane \ 20. Construct new bridge from direct access eee □ ; 2 a 19 | ramps to 17th Ave SE oa wy ) 21. Reconfigure park and ride lot = Proposed Seattle / 22. Widen 220th St SE and 17th Ave SE r Seer Re ae = 2) 23. Restore stream connection at WOFW ID ae ne eee ae P13)! fake [ 20 993084 7 eee — Washington inc 24. Restore stream connection at WOFW ID Fin te 3 i ALL COUNTY 993109 ~ ee, all :

22 || See EA at Ex. 3-2 (docket no. 38-1 at 1). 23

1 The current I-405/SR 527 interchange and transit station (Canyon Park Park-and- 2 || Ride (“P&R”) facility) is shown in this aerial view (looking northwest): 3 yy □ Pah. a : 4 Seale i ‘Y an yes. S| ed a Ss. ea i =. ~ eR as take 6 =" 7 | . □□ □ ie a te cat 4 —_ Pe aa Be || SSE TVS See oS Agi, OR eatin om al ee ie 8 Pas Be hi q Ps a WB 9 | i □□ te i □ 1 ‘ ih 1 See 10 4) q ' i ey iq i nit 4 i ' □ oo 11 D See EA at Ex. 4-13 (docket no. 38-1 at 24). The proposed direct access ramp and

13 reconfigured transit station are visualized as follows:

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22 || See TDR at Ex. 5-17 (docket no. 35-8 at 354). 23

1 Plaintiff CPBCOA is a non-profit corporation comprised of owners of properties 2 || located in the Canyon Park Business Center, see Am. Compl. at § 7 (docket no. 18), the 3 || borders of which are outlined in pink on the following map: 4 5 Be SPaL rotanaat tttgen| % paaivaion fare <

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i Gt : a 18 ini Canyon Park Study Area Cast ea, 19 □□ 0.125 0.25 0.5 Miles head Grown Cantar P&R fark & Ride —————— | Additional area to 6 include in study 20 □ tains center 21 || See City of Bothell, Canyon Park Subarea Planned Action Final Environmental Impact 22 || Statement (“Bothell Final EIS”) at Fig. 19 (docket no. 49-1 at 87). The Canyon Park 23

1 Business Center is home to various businesses and a church, and it includes a 135-acre 2 Native Growth Protection Area, which is undevelopable greenspace, as well as private

3 roads, bicycle paths, jogging trails, water detention ponds, and recreational areas. Am. 4 Compl. at ¶¶ 8, 11, 12, 15, & 18 (docket no. 18). 5 In connection with the proposed construction of a direct access ramp to and from 6 the I-405 median at 17th Avenue SE, which will likely increase traffic on the streets near 7 the Canyon Park Business Center, the Association sues the federal defendants pursuant to 8 the Administrative Procedure Act (“APA”) and all defendants for alleged violations of

9 the National Environmental Policy Act of 1969 (“NEPA”). See id. at ¶¶ 75–116 (alleging 10 six “causes of action,” two of which are actually prayers for relief). The crux of the 11 Association’s claims are that (i) the FHWA (and WSDOT) should have prepared an 12 environmental impact statement (“EIS”) relating to the Project, and/or (ii) the agencies 13 should have revised their Environmental Assessment after the City of Bothell issued the

14 Bothell Final EIS in connection with the separate project known as the Canyon Park 15 Subarea Planned Action. All moving parties seek summary judgment in their own favor 16 on these issues. 17 A. NEPA Requirements 18 NEPA “establishes ‘action-forcing’ procedures that require agencies to take a

19 ‘hard look’ at [the] environmental consequences” of their proposed plans. See Ctr. for 20 Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633, 642 (9th Cir. 2010) (quoting 21 Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000) (quoting Robertson v. Methow 22 Valley Citizens Council, 490 U.S. 332, 348 (1989))). NEPA does not mandate any 1 particular result, but it compels the development of an EIS in certain situations, namely 2 when a proposal for legislation or other major federal action will “significantly” affect

3 “the quality of the human environment” and is not otherwise exempt from NEPA. See 4 Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 756–57 (2004) (quoting 42 U.S.C. 5 § 4332(2)(C)). Pursuant to authority conferred by NEPA, the Council of Environmental 6 Quality (“CEQ”) has promulgated regulations to guide federal agencies in determining 7 when an EIS is necessary. See id. at 757. In accordance with the CEQ’s regulations, an 8 agency may prepare an EA, rather than an EIS, if the proposed action is not likely to have

9 significant effects or if the significance of the effects is unknown. See 40 C.F.R. 10 § 1501.5(a). An EA must: 11 (1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant 12 impact; and 13 (2) Briefly discuss the purpose and need for the proposed action, alternatives as required by . . . NEPA, and the environmental impacts of the proposed 14 action and alternatives . . . . 40 C.F.R. § 1501.5(c). NEPA dictates that “technically and economically feasible 15 alternatives” be evaluated. See 42 U.S.C. § 4332(2)(F). 16 If an agency decides not to prepare an EIS, it must issue a FONSI and make it 17 available to the affected public. 40 C.F.R. § 1501.6(a). The FONSI must either include 18 the EA or incorporate the EA by reference. Id. at § 1501.6(b). A FONSI may be with or 19 without mitigation, but if a FONSI is premised on mitigation, then it must state “any 20 enforceable mitigation requirements or commitments that will be undertaken to avoid 21 significant impacts.” Id. at § 1501.6(c). 22 1 || B. TDR, EA, and FONSI 2 In May 2020, WSDOT issued its Transportation Discipline Report, which later 3 || became Appendix A to the Environmental Assessment for the Project. See TDR (docket 4 | no. 35-8 at 273-473). The TDR 5 describes the freeway and local traffic, safety performance, transit, freight, and nonmotorized conditions in the study area; identifies and assesses 6 potential effects of the Project on these conditions; and identifies measures to avoid or reduce effects resulting from the Project. 7 Id. at § 1.1 (docket no. 35-8 at 281). The TDR considered two alternatives: “No Build” 8 and “Build.” See id. at § 1.4 (docket no. 35-8 at 281-82). For each alternative, the TDR 9 provided an analysis of various street intersections, assigning a level of service (“LOS”) 10 value from A to F for each studied location, with A meaning little or no vehicle delay 11 through the intersection, and F signifying “failure” or “extreme congestion.” 12 Ce een LOS Description 13 Mp [ea aa _ — ort delays

ete 6

18 || /d. at Ex. 3-4 (docket no. 35-8 at 301). Software known as “Synchro” (for signalized and 19 | unsignalized intersections) and “SIDRA” (for roundabouts) was used, and methods set 20 || forth in the HIGHWAY CAPACITY MANUAL: A GUIDE FOR MULTIMODAL MOBILITY 21 || ANALYSIS [hereinafter “HCM”] were applied. Jd. at § 3.4.3 (docket no. 35-8 at 300-01). 22 23

1 Within the region near the planned direct access ramp, the following intersections 2 || were studied: 3 tae a f 5.24 pace (aaa 4 Me el Private Rd ! goers L P1 17th Avenue SE and 220th Street SE 5 os Hangse f US NOnO MISH P2 20th Avenue SE and 220th Street SE 1 8 8S COUNTY P3 23rd Drive SE and 220th Street SE 6 = } > P4 26th Avenue SE and 220th Street SE a (sor). 1% P5 26th Avenue SE and 223rd Street SE bees cs 7 2 2hey Si Se ee 8 e ® a @ 23 17th Avenue SE and Canyon Park Park and Ride 9 || | 228th stse e-e—_* eo 1 N4 17th Avenue SE and 1-405 Direct Access Ramps = ; 228th St SE = uu = 10 a © W wy Legend iv x a c= New Future 11 = B= < Se = ® Intersection ee os 3 aA Private Road ES ® intersection 12 } % = A Study 240th SLSE 5 o . ® Intersection I : _ _ Municipal 13 L. | Boundary 242nd St SE Bothell © = □□ i County Boundary 14 ST Se ee ee ts ete, meee oa Waterbody 15 . . Id. at Ex. 3-2 (docket no. 35-8 at 293) (modified). Of particular note for purposes of 16 . . . . . wa CPBCOA’s claims are the intersections labeled (1) P1—P5, private roads within the 17 Canyon Park Business Center, (11) 23 (17th Avenue SE and Canyon Park P&R), and 18 . . . (iii) N4 (17th Avenue SE and I-405 direct access ramp).* For each intersection, the TDR 19 20 The following intersections (shown on the map) were also studied, but they are not relevant to the Association’s claims in this litigation: 91 21 SR 527 and I-405 Southbound Ramps 16 Bothell-Everett Highway and 228th Street SE 22 SR 527 and 1-405 Northbound Ramps 17 228th Street SE and 15th Avenue SE 24 SR 527 and 220th Street SE 22 18 228th Street SE and 19th Avenue SE 25 SR 527 and 214th Street SE 19 228th Street SE and 27th Avenue SE 26 SR 527 and 211th Street SE 23 20 228th Street SE and 29th Drive SE 27 SR 527 and SR 524

1 | indicates the existing LOS (if applicable) and the anticipated LOS for each alternative 2 || (No Build and Build) during the morning (“AM”) and evening (“PM”) peak hours in both 3 |] the years 2025 and 2045. With one exception for each peak hour, the anticipated LOS is 4 || the same for the Build alternative as for the No Build alternative.° 5 AM Peak Hour LOS 6 7 Pl PL Signal — Signal. a (3) (3) (3) (3) (3) 7 WB dann St SE i lz 8 P2 Be AWSC i 20h Ave SE Both Ave SE te) te) ter 6 4A8.6, oO agth Ave SEB 220th St SE 2atth St SE s ¢ E 26: 9 P3 Pa AWEC —, po poo (s) (s) ts) te a e Not Applicable 2, = “=. @ @@eo@ “=—- Zale St SE te ze SE Math Ave SE : AWS — 2th Ava SE AWS 28th Ave SE P5 ee ne ng (ai iS) (s) (s) is) 12 223rd St SE = = a 23 mes □□ “=> (BS) (5) OS) (5) ] 3 Park and Ride owsc Park PER wa a 1th Awe SE a) sais Sisr □□ ©& 15 . Id. at Ex. 5-13 (docket no. 35-8 at 343-44) (modified); see also infra note 10. 16 17 18 19 The traffic near the Canyon Park Business Center is already congested. The intersection of 23rd Drive SE and 220th Street SE (P3) currently operates at LOS E during the moming peak 20 period as a result of “a single through lane that serves high traffic volumes on the eastbound approach,” and the “all-way stop controlled” intersection of 20th Avenue SE and 220th Street SE 21 || (P2) is rated LOS F for the afternoon commute. See TDR at § 4.3 (docket no. 35-8 at 309-10). The situation is expected to worsen by 2025, regardless of whether the Project goes forward or 22 || the direct access ramp is built. Jd. at § 5.4.1 (docket no. 35-8 at 338-39). 23

1 PM Peak Hour LOS 2 Overall and Approach LOS No Guid Build Lewel of Service (PM Peak Hour) ‘Configuration Configuration Exmting 2025 Mo-Buld 2025 Bald =2045 No-Bid = 2045 Build 3 OVERALL 3 Pl Pi signal )™A8E eignat——__ | 7aWe BE : we eee 2a0th SUSE 220m St SE EB 4 P2 2 AWSS 20th Ave SE AVFES Poth Ave SE 8 □ A G,arO Ave SE & Qaim SE □□□ (s) (s) (s) (s) ie E 5 P3 a AWE □□ 25rd OF SE ASC 23d Dy 5E 5 : a Appiloable 6 AWSC— [26h PIEE AWC — 6th LSE AWSC: All-Way 7 aitth St GE 2th Ave SE Bath Ave SE & AWES — 26th Ava SE AWE 26th Ave SE fe HE THEE 8 28th Dr SE ee 2 gf, I" Lh HS 9 Parhand Ads owec Bark BAR sniase hoe (3) (3) 10 Abeta Hasipa 11 || 7d. at Ex. 5-14 (docket no. 35-8 at 346-47) (modified); see infra note 10. A subsequent 12 || study performed by the City of Bothell analyzed the same intersections within or near the 13 i “yj p2| Canyon Park Business Center, and 14 214.ST SE a i P3 . , Fi Pa the City of Bothell’s report offers 15 we >/ PS) a more detailed map of the area. 217 PLSE 16 ex 3 Zz The intersections labeled P2—P5 8 : 6.7 - □□ 17 2 in the TDR correlate with the ones 18 5 ee marked as 1-4, respectively, on 19 F Sper the adjacent map. i. wi CREEK Reg ly ae ri Ser ey 20 “yA og qa StS | ¢ , See i *| See Addendum to City of Bothell’s 21 |} Wp ——|_ Draft EIS, Attachment C at Fig. 2 (docket no. 33-2 at 665) (modified). 22 | ————= — =

1 In July 2020, WSDOT and the Washington Division of the FHWA submitted the 2 Environmental Assessment for the Project. See EA (docket no. 38 at 2885). The EA

3 describes the benefits of the Project as follows: 4 The Project would deliver faster and more reliable trips on I-405 for most drivers, carpools, and transit riders using both the ETLs and general purpose 5 (GP) lanes. The additional freeway capacity in the Bothell area would increase overall vehicle and person throughput, reduce travel times, and 6 improve safety performance. The addition of direct access ramps at SR 522 and near SR 527 would improve access for ETL users, and the new ETL 7 coupled with new inline transit stations at SR 522 and near SR 527 would support Sound Transit’s proposed I-405 [bus rapid transit] BRT system and 8 improve transit reliability. 9 The Project would benefit water resources by treating 100 percent of new pollution-generating impervious surface (PGIS) and a greater share of 10 existing PGIS, leading to reductions in pollutant loading. Aquatic species would benefit from the removal of four existing bridge piers in the 11 Sammamish River. Replacing five fish barriers with restored stream connections would improve anadromous fish access to approximately 12 24,330 linear feet of upstream habitat. Although future noise levels would be similar with and without the Project, the Project’s three proposed noise 13 walls would decrease noise levels at 43 more residences than the No Build Alternative. 14 EA at 2–3 (docket no. 38 at 2896–97). The EA further indicates that, in addition to these 15 improvements, the Project would result in some intersections in the Canyon Park area 16 operating more poorly. Id. at § 2.4 (docket no. 38 at 2905). The EA also makes 17 predictions about the Project’s effects on transportation, noise and visual quality, air, 18 water, and soil quality, ecosystems (habitats and wildlife), recreational, community, 19 historic, and other resources, environmental justice populations, and hazardous materials 20 sites. Id. at Ch. 4 (docket no. 38-1 at 3–39). Notably, the Association does not challenge 21 any of the EA’s findings other than those relating to the Project’s impact on traffic near 22 1 and within the Canyon Park Business Center, which the Association asserts will create 2 more noise, air pollution, vibration, and safety risks for cyclists and pedestrians. See Am.

3 Compl. at ¶¶ 45–73 (docket no. 18). In preparing the EA, WSDOT coordinated with the 4 City of Bothell and CPBCOA,6 and it is continuing to consider potential mitigation and 5 to work with the City of Bothell to reach agreement on appropriate assumptions about 6 future population growth and land uses in the Canyon Park region. EA at §§ 2.3.1 7 (Ex. 2-1) & 2.4 (docket no. 38 at 2904–05). 8 In July 2021, the FHWA issued a finding of no significant impact, concluding that

9 the Project was “not likely to have a significant adverse impact on the environment.” 10 FONSI at 1-1 (docket no. 37-8 at 295). The FONSI relied on, and incorporated by 11 reference, the EA, with certain changes outlined in the Errata to the EA, which was 12

13 6 The Association was actively involved and communicated extensively with WSDOT during the periods when the TDR and EA were being developed. See Meeting Summary (Feb. 28, 2019), 14 CAR00010194–95 (docket no. 25-2 at 132–33); Emails (planning and summarizing meeting on Mar. 19, 2019), CAR00010868–69 (docket no. 25-4 at 226–27) & CAR00011588–89 (docket 15 no. 26-1 at 189–90); Minutes (Nov. 13, 2019), CAR00043595–96 (docket no. 29-7 at 438–39); Minutes (Jan. 23, 2020), CAR00056777–79 (docket no. 31-7 at 191–93); Minutes (Mar. 12, 16 2020), CAR00062694–96 (docket no. 32-3 at 418–20). After the EA was published, WSDOT continued to meet with the Association’s representatives and discuss via email issues raised by 17 the Association. See Minutes (Sept. 15, 2020), CAR00081711–14 (docket no. 34-1 at 170–73); Minutes (Oct. 14, 2020), CAR00084322–23 (docket no. 34-4 at 766–67); Emails (Nov. 2020), 18 CAR00096018–28 (docket no. 35-3 at 325–35); Emails (Nov. 2020–Jan. 2021), CAR00097719– 23 (docket no. 35-5 at 1176–80) (duplicative of CAR00096160–61 & CAR00096218_19 (docket no. 35-4 at 80–81 & 138–39) and CAR00096810–13 (docket no. 35-5 at 267–70)); Emails 19 (Jan. 2021), CAR00099653–54 (docket no. 35-7 at 36–37); Email (Feb. 2021), CAR00097963– 67 (docket no. 35-5 at 1420–24); Minutes (May 11, 2021), CAR00108332–34 (docket no. 37-2 20 at 213–15). The Association expressed its concerns about the EA in a letter dated August 6, 2020, attached to which was a memorandum authored by Michael Read, P.E. of Transportation 21 Engineering NorthWest; both the Association’s comments and the FHWA’s thorough responses were incorporated into the subsequent FONSI. See FONSI at Comment L3 (docket no. 37-8 at 22 501–521). 1 || attached as Appendix 2 to the FONSI (docket no. 37-8 at 565-628). The FONSI also 2 || outlined certain mitigation commitments, including the installment of signs on, at a 3 | minimum, 228th Street SE, westbound approaching 29th Drive SE, and 17th Avenue SE, 4 || northbound approaching 220th Street SE, directing drivers to use public streets, as 5 || opposed to the private roads within the Canyon Park Business Center. See FONSI at 6 eee te City of Bothell’s Draft EIS, - § 5.1.1 (docket no. 37-8 at 320). The Attachment C at Fig. 2 (docket no. 33-2 at #5) . . om Poapitia a Court has modified the adjacent map to 8 cf ‘ >| show the approximate locations of such 9 = 7 a me warning signs, using red hexagons and 10 3 arrows indicating the direction of travel. 11 i he se @ The FONSI further indicated that 12 a So : WSDOT “is proposing mitigation to 13 Sie =e rise offset traffic impacts” at the 20th 14 || | : Avenue SE / 220th Street SE intersection 15 || Gdentified as “1” in the above map and as P2 in the TDR), which “currently operates 16 || poorly and would continue to operate poorly with the Build Alternative.” Jd. (emphasis 17 || added). Such mitigation, however, is outside the scope of the Project and was deemed 18 || “not necessary to mitigate Project effects.” Jd. The Association contends that the 19 || FONSI, and the associated failure to develop an EIS, constitutes a violation of NEPA. 20 || The FHWA and WSDOT express the opposite view. 21 22 23

1 C. Bothell Final EIS 2 In December 2020, between the submission of the EA for the Project (July 2020)

3 and the issuance of FHWA’s FONSI (July 2021), the City of Bothell issued the Bothell 4 Final EIS, of which the Court has taken judicial notice at the Association’s request.7 See 5 Bothell Final EIS, Ex. A to Quihuis Decl. (docket no. 49-1); see also Minute Order at 6 ¶ 1(a) (docket no. 56). The Bothell Final EIS concerned a proposal to update the subarea 7 plan for the Canyon Park neighborhood, which includes the Canyon Park Business 8 Center.8 Id. at Fact Sheet & Fig. 1 (docket no. 49-1 at 8 & 25). The Bothell Final EIS

9 considered five alternatives, summarized as follows: 10 • the “No Action” alternative, which would retain current Future Land Use designations and zoning, as well as current Regional Growth Center 11 (“RGC”) boundaries (733 acres); 12 • the “Business Plus” alternative, which would focus primarily on adding jobs and would reduce the RGC boundary to 613 acres; 13 14 15 16 7 The City of Bothell’s Draft EIS was published a year earlier, in December 2019, and it is mentioned in WSDOT’s TDR. See TDR at § 3.3.3 (CAR00066620) (docket no. 32-8 at 1015). 17 According to the TDR, the City of Bothell’s Draft EIS evaluated a “no action” alternative and three build alternatives, without identifying a preferred alternative. Id. Given the relative timing 18 of the City of Bothell’s EIS process and the TDR, WSDOT opted to rely on the land use densities set forth in the City of Bothell’s current comprehensive plan, known as “Imagine 19 Bothell,” which was adopted in 2015. See id. 8 The Canyon Park neighborhood was designated as a Regional Growth Center by the Puget 20 Sound Regional Council in 2009. See EA at 5-4 (docket no. 38-1 at 44). A Regional Growth Center is an area in which significant business, governmental, and cultural facilities are located 21 and in which growth is being planned. See https://www.psrc.org/our-work/centers. Washington has 30 Regional Growth Centers. Id.; see also RCW 36.70A.110 (requiring that comprehensive 22 growth management plans designate “an urban growth area or areas”). 1 e the “Live/Work” alternative, which would grow both jobs and housing, and would have the same RGC boundary as the “Business Plus” 2 alternative; 3 e the “Mitigated Live/Work” alternative, which would have a smaller RGC boundary of 565 acres and permit 25% lower growth than the 4 “Live/Work” alternative; and 5 e the “Preferred Middle Ground” alternative, which is similar to the “Mitigated Live/Work” alternative, but with a smaller RGC boundary 6 (563 acres), and concentrates mixed-use structures (residential/retail or residential/office) at existing shopping centers and along the Bothell- 7 Everett Highway. 8 Id. at Fact Sheet & § 1.1 (docket no. 49-1 at 8-9 & 22); see also id. at Table 1 (docket

g | no. 49-1 at 3 1-33) (comparing the potential features of the various alternatives).’

10 All alternatives included (or assumed completion of) the Project, described in the

1 Bothell Final EIS as already funded and as adding “one ETL in each direction of I-405

12 || between south of SR 522 and SR 527, as well as . . . direct access ramps at SR 522 and

13 || near SR 527 at 17th Avenue SE.” /d. at Fig. 6 & Table 2 at C-5 (docket no. 49-1 at 42—

14 43). The Bothell Final EIS anticipated that, under the “Preferred Middle Ground”

16 || ° The alternatives are estimated to have the following capacities: 5 ; tard □□□ | aaar Ly masa ae es ae ae 3 □□ Fs Fy □□ No Action EIS Assumption® 1,856 3712 4,530 8,242 2,242 4 ABA A787 9.271 19 No Action: Capacity 2029 3713 4430 3143 | 2654 4847 4804 9,651 Amended* Mitigated Live/Work 2816 4295 9.458 13,683 3614 5.496. 9.805 15,302 20 Preferred 4075 6,142 7.5598 13,740 4.687 7.162 8.305 15,467 Business Plus 2687 4012 17,209 (21,221 2915 4,AGB 17,350 821,818 21 Live/Work 4498 6732 15,143 21875 | 4726 7.188 15,284 22,472 Bothell Final EIS at Table 4 (docket no. 49-1 at 54).

1 | alternative, the intersection of 17th Avenue SE and 220th Street SE (designated as P1 2 the TDR), would perform at LOS F during both peak periods. Jd. at 3-43 (docket 3 || no. 49-1 at 154). According to the Bothell Final EIS, WSDOT’s separate analysis 4 || projected that this same intersection would operate at LOS C for both AM and PM peak 5 | hours in 2043/2044.'° Jd. The Bothell Final EIS explained that the difference between 6 | its and WSDOT’s LOS figures resulted from “ta combination of the higher overall land 7 8 10 WSDOT’s TDR originally estimated that the 17th Avenue SE / 220th Street SE intersection 9 || would function at LOS B under both the Build and No Build alternatives in 2025 and 2045. See TDR at Exs. 5-13 & 5-14 (docket no. 35-8 at 342-47). In the Errata to the EA, which was 10 || appended to the FONSI, the LOS results for the intersection (P1) changed as follows: No Build Build Level of Service (AM Peak Hour) ] ] Configuration Configuration Existing 20275No-Build 2075 Build 7045 No-Build 2045 Build &@ Signal == 17th Ave SE Signal WihAve SE <=>. <>, > <> 12 rave SE Ss 7 3 (8) (@) Ge) Ge) (e) No Build Build Level of Service (PM Peak Hour) 13 Configuration Configuration Existing 2025No-Build 20275 Build 2045No-Build 2045 Build @ Signal —_ 17th Ave SE Signal ith Ave SE <=>, a, <<, □□□ <> ake “=~ a YG) CG) (SB) 15 || Errata to EA at Exs. 5-13 & 5-14 (docket no. 37-8 at 583 & 585). The estimated LOS for the interchange between 17th Avenue SE and the direct access ramp (N4) was downgraded from 16 LOS A to LOS B for both AM and PM peak periods: Sura INh Ave GE aa, 7] ge Se (3) 18 || (docket no. 37-8 at 582 & 584). The updated LOS estimates accounted for design refinements within the Canyon Park Business Center, the City of Bothell’s 2018 addition of a 19 pedestrian crossing at 29th Avenue SE and 228th Street SE, which was not originally reflected, changes to certain parameters (e.g., pedestrian crossing times, lane change distances, and intersection turning speeds) in coordination with CPBCOA, and revisions to signal timings. Jd. 20 | at A2-16 (docket no. 37-8 at 580). WSDOT characterized the LOS changes as “minor” or not “substantial” in “overall effects as disclosed in the EA.” Jd. at A2-17 (docket no. 37-8 at 581). 21 || Notably, the overall LOS estimates at the 17th Avenue SE / 220th Street SE intersection for the AM peak hour in the year 2045 and for the PM peak hour in 2025 and 2045 are essentially the 22 || same for the Build and No Build alternatives, which is consistent with the initial TDR findings. 23

1 use growth in the Preferred Alternative throughout the study area as well as higher land 2 use growth located closer to the Canyon Park park-and-ride (accessible from 17th

3 Avenue SE only) compared to the WSDOT land use assumptions.” Id. (emphasis added); 4 see also Addendum to City of Bothell’s Draft EIS, Attachment C at 15 (docket no. 33-2 5 at 670) (“The draft WSDOT I-405 Direct Access Ramp study evaluated the traffic 6 operations at this location under future conditions which generally equates to the Canyon 7 Park No Action Alternative. This location was further evaluated in this memo with the 8 higher land use growth assumed in the Canyon Park Subarea Preferred Alternative.”

9 (emphasis added)). In other words, the disparity was not a product of some flaw in 10 WSDOT’s analysis, but rather illustrated the impact on the intersection of the City of 11 Bothell’s “Preferred Middle Ground” alternative (as opposed to the direct access ramp 12 itself). The Association’s suggestion to the contrary, see Pl.’s Mot. at 9 (docket no. 50 at 13 15), lacks merit. Nevertheless, the Association asserts that, following the issuance of the

14 Bothell Final EIS, WSDOT and the Washington Division of the FHWA should have 15 revised the EA, which would have impacted the FONSI on which it relied. The agencies 16 disagree. 17 D. Request for Judicial Notice – Swenson Opinions 18 The Association has asked the Court to take judicial notice of certain materials

19 prepared by its expert Michael Swenson. Swenson’s qualifications as a traffic engineer 20 are not in dispute, see Resp. at 9 (docket no. 52), and the Court therefore takes judicial 21 notice of his resume, Ex. C to Swenson Decl. (docket no. 49-2 at 7), as well as 22 Paragraphs 2 and 3 of his declaration, docket no. 49-2, which indicate that Swenson is a 1 registered professional engineer and a certified professional traffic operations engineer, 2 with an undergraduate degree in civil engineering from Montana State University.

3 In his declaration, Swenson states that the technology used by WSDOT in 4 preparing the TDR, i.e., Synchro, is “a deterministic traffic model that is used to calculate 5 intersection performance in areas,” and that SimTraffic is a visualization tool “often used 6 as an extension of Synchro.” Swenson Decl. at ¶¶ 7 & 14 (docket no. 49-2). The Court 7 takes judicial notice of these descriptions of programs used by WSDOT. According to 8 Swenson, VISSIM is, in contrast, a microsimulation program that “is best used to model

9 complex traffic interactions and closely spaced intersections with freeway ramps and 10 ramp terminals, signalized intersections, and roundabouts.” Id. at ¶ 8. Swenson opines 11 that VISSIM would provide more accurate results than Synchro and/or SimTraffic, id. 12 at¶ 11, but he offers no support for the proposition that WSDOT and/or FHWA were 13 required to use VISSIM or an equivalent system.

14 In a memorandum dated March 1, 2023, which is attached as Exhibit D to his 15 declaration, Swenson summarized the results of his VISSIM modeling as follows: 16 • No-Build PM: 74.5 sec of delay per vehicle in the network 17 • Build PM: 97.9 sec of delay per vehicle in the network, increase of 31% as compared to the No-Build scenario 18 • Northbound queues on 17th – 485 ft (no-build) increase to 660 ft (build) 19 (PM Peak avg), exceeding northbound left-turn lane storage and blocking 20 several existing commercial driveways 21 • Westbound queuing on 220th – 160 ft (no-build) increase to 320 ft (build) (PM Peak avg) 22 1 • Increased queuing in the southbound direction on SR 527 between the No-Build and Build scenarios 2 Ex. D to Swenson Decl. (docket no. 49-2 at 9). Swenson, however, does not relate this 3 information in any meaningful way to the LOS predictions set forth in the TDR or Errata 4 to the EA, and he does not explain why the VISSIM program predicts different outcomes 5 than the Synchro and/or SimTraffic systems. 6 The Court has considered (and therefore taken limited judicial notice) of the 7 balance of Swenson’s declaration, as well as his March 2023 memorandum, for the 8 purposes of understanding and evaluating the Association’s argument that WSDOT acted 9 unreasonably or reached erroneous results by not employing VISSIM. The Court has 10 concluded that such argument lacks merit for the reasons set forth in Section B(2) of the 11 Discussion. Because the Court has, however, reviewed the substance of the extra-record 12 materials on which the Association has relied, the deferred portion of the Association’s 13 motion for judicial notice, docket no. 49, is GRANTED. 14 Discussion 15 A. Standard of Review 16 A federal agency’s decision not to produce an EIS may be set aside only upon a 17 showing that it was “arbitrary, capricious, an abuse of discretion, or otherwise not in 18 accordance with law.” Dep’t of Transp., 541 U.S. at 763 (quoting 5 U.S.C. § 706(2)(A)). 19 NEPA and its implementing regulations incorporate a “rule of reason,” which ensures 20 that federal agencies base their decisions whether to generate environmental impact 21 statements on the “usefulness of any new potential information to the decisionmaking 22 1 process.” Id. at 767. If “an EIS would serve ‘no purpose’ in light of NEPA’s regulatory 2 scheme as a whole, no rule of reason worthy of that title would require an agency to

3 prepare an EIS.” Id. NEPA’s EIS requirement serves two purposes: (i) to make certain 4 that agencies “will have available, and will carefully consider, detailed information” 5 concerning any “significant environmental impacts” of their decisions; and (ii) to 6 guarantee that relevant information is provided to the larger audience, which might “also 7 play a role in both the decisionmaking process and the implementation of that decision.” 8 Id. at 768. To the extent that environmental consequences stem from actions outside of

9 an agency’s control, the “rule of reason” operates to relieve the agency of formally 10 analyzing such environmental impacts through the EIS process. See id. at 768–770. 11 B. Decision Not to Prepare an EIS 12 Despite the Association’s efforts to blur the distinction between the Project, as to 13 which it asserts an EIS should have been generated, and the City of Bothell’s proposed

14 changes to the land use and zoning plan for the Canyon Park area, the Court remains 15 focused, as it must, on the federal action that is subject to NEPA and the related CEQ 16 regulations. The only component of this federal action that the Association challenges is 17 the proposed direct access ramp linking the I-405 median and 17th Avenue SE. 18 1. Growth Projections

19 In analyzing the impact of the direct access ramp on traffic in the vicinity of the 20 Canyon Park Business Center, WSDOT reasonably relied on the comprehensive plan 21 (Imagine Bothell) adopted in 2015 by the City of Bothell. The Association’s contention 22 that WSDOT should have considered one or more of the alternative plans being 1 considered by the City of Bothell in the 2019–2020 timeframe (contemporaneously with 2 development of the TDR and the EA), all of which would allow more growth or greater

3 density than Imagine Bothell, is flawed for the following three reasons. 4 First, when WSDOT performed its analysis, it did not know, and could not predict, 5 which alternative the City of Bothell would choose. Indeed, the City of Bothell’s Draft 6 EIS did not designate any alternative as the preferred one, and the plan later characterized 7 as the “Preferred Middle Ground” alternative was not even under consideration when 8 WSDOT conducted the analysis discussed in the TDR. WSDOT and the FHWA’s

9 Washington Division cannot be faulted for not evaluating within the EA a level of future 10 growth that the City of Bothell had not yet proposed or fully studied, much less decided 11 to allow. 12 Second, the Project (including the direct access ramp) is anticipated to be 13 constructed in the near future, see FONSI at 2-2 (docket no. 37-8 at 298), and thus, the

14 impact of the Project is best understood in the context of the currently expected 15 conditions and future growth in the Canyon Park area. Factoring in a higher level of 16 future growth merely conflates the traffic effects of the direct access ramp with the traffic 17 effects of the City of Bothell’s “Preferred Middle Ground” or other alternative. With 18 regard to the former traffic effects (relating to the direct access ramp), the TDR, EA, and

19 Errata to the EA show virtually no difference between the Build and No Build 20 alternatives. As to the latter traffic effects (associated with higher future growth than 21 currently authorized), the City of Bothell actually prepared an environmental impact 22 statement precisely because its decision is likely to “significantly” affect “the quality of 1 the environment.” See RCW 43.21C.030(c) (State Environmental Policy Act (“SEPA”) 2 EIS requirements). The City of Bothell’s decision to further pursue or approve a new

3 comprehensive plan that will cause more traffic congestion in the vicinity of the Canyon 4 Park Business Center is beyond the scope of this lawsuit and the Court’s jurisdiction. See 5 RCW 43.21C.075; see also Coal. for Sustainable 520 v. U.S. Dep’t of Transp., 881 6 F. Supp. 2d 1243, 1260–61 (W.D. Wash. 2012) (with regard to state claims, including 7 pursuant to SEPA, that are asserted in federal court, WSDOT and its Secretary have 8 Eleventh Amendment immunity).

9 Third, the Association has not made any showing that, if the growth projections 10 associated with the “Preferred Middle Ground” alternative were used to repeat the LOS 11 analysis, the results for the Project’s Build and No Build alternatives would differ from 12 each other. The Association’s reliance on the Bothell Final EIS is misplaced because the 13 Bothell Final EIS (which incorporates the Addendum to the City of Bothell’s Draft EIS)

14 demonstrates only a difference between the current comprehensive plan or “No Action” 15 alternative (with a direct access ramp) and the “Preferred Middle Ground” alternative 16 (with a direct access ramp); the Bothell Final EIS does not analyze the “Preferred Middle 17 Ground” alternative both with and without a direct access ramp. Given the outcomes to 18 date, a reasonable expectation is that the LOS for each studied intersection near or in the

19 Canyon Park Business Center would continue to be virtually the same for the Project’s 20 Build and No Build alternatives with respect to the City of Bothell’s “Preferred Middle 21 Ground” alternative, and that the 17th Avenue SE / 220th Street SE (P1) intersection 22 would be anticipated to operate at LOS F under the “Preferred Middle Ground” 1 alternative even if the direct access ramp were not considered. The Association has not 2 carried its “heavy burden” of establishing otherwise, and has therefore not proven that

3 WSDOT and/or the FHWA acted arbitrarily or capriciously in computing (or relying on) 4 LOS values using the current Imagine Bothell projections. See Short Haul Survival 5 Comm. v. United States, 572 F.2d 240, 244 (9th Cir. 1978) (observing that the arbitrary 6 and capricious standard is “highly deferential” and “presumes agency action to be valid,” 7 and that challengers bear a “heavy burden” of establishing that the agency’s decision was 8 unreasonable or unsupported by a “rational basis”).

9 2. Traffic-Analysis-Tool Selection 10 The Association’s assertion that WSDOT and FHWA failed to follow their own 11 guidelines likewise lacks merits. Contrary to the Association’s contention, WSDOT’s 12 Design Manual did not require use of VISSIM. WSDOT’s Design Manual cautions that 13 “[f]orecasting demand volumes 20 years into the future can be difficult to do well,” and

14 that some future-year measures of effectiveness (“MOEs”), for example, turn-lane queue 15 lengths, “should not be considered accurate,” but might “be useful when comparing 16 various scenarios if the reported differences are substantial.” Design Manual at § 320.01 17 (Sept. 2020) (docket no. 37-1 at 496). According to the Design Manual, “the least 18 complex and data-intensive traffic analysis software available” should be selected to

19 address the questions raised by a project. Id. at § 320.03 (docket no. 37-1 at 498) 20 (emphasis added). For a deterministic analysis, the Design Manual suggests using Sidra, 21 Rodel, Synchro, and/or HCS as the primary tools. Id. WSDOT selected SIDRA and 22 Synchro. The Design Manual describes VISSIM as an appropriate tool for “choosing 1 between project-level scenarios involving multimodal traffic” or when “various 2 transportation system elements interact.” Id. Having quoted this guidance out of context,

3 the Association fails to show that WSDOT was either (i) analyzing different project-level 4 scenarios (i.e., different “Build” designs), or (ii) focusing, with respect to the direct 5 access ramp’s effect on traffic near the Canyon Park Business Center, on the interaction 6 of various transportation system elements. See Pl.’s Mot. at 17 (docket no. 50 at 23). 7 The Design Manual cites to the FHWA’s Traffic Analysis Toolbox Volume II: 8 Decision Support Methodology for Selecting Traffic Analysis Tools (“Toolbox”), of

9 which the Court has taken judicial notice at the Association’s request. See Design 10 Manual at § 320.08 (docket no. 37-1 at 502); Toolbox (July 2004), Ex. B to Quihuis 11 Decl. (docket no. 49-1 at 320–427); Minute Order at ¶ 1(a) (docket no. 56). The Toolbox 12 “provides a methodology for selecting traffic analysis tools,” and the Design Manual 13 enumerates by facility type the methodologies that WSDOT generally uses and that “will

14 be accepted if agreed upon by those who sign TIA [Traffic Impact Analysis] or ARR 15 [Access Revision Report] M&A [Methods and Assumptions] Documents.” Design 16 Manual at § 320.08 (docket no. 37-1 at 502). The relevant facility types are as follows: 17 • Freeway Segments: Highway Capacity Manual/Software (HCM/S); operational and design analysis; macroscopic, mesoscopic, and 18 microsimulation . . . 19 • Ramps and Ramp Terminals: HCM/S; operational and design analysis; DM [Design Manual]; microsimulation 20 . . . 21 • Intersection, Signalized: Sidra; Synchro; SimTraffic; HCM/S; Vissim • Intersection, Roundabout: Sidra; Rodel; HCM; Vissim 22 1 • Corridors: Sidra; Synchro; SimTraffic; HCM; Vissim • Stop-Controlled Intersections: HCM/S for capacity; DM Chapter 1330 2 and the MUTCD [Manual on Uniform Traffic Control Devices for Streets and Highways, WAC Chapter 468-95] for signal warrants (if a signal is 3 being considered) . . . . 4 Id. (italics in original). As previously noted, in preparing the TDR, which was attached 5 to the EA, WSDOT used Synchro for intersections, SIDRA for roundabouts, and the 6 methods outlined in the HCM. These choices were consistent with the Design Manual’s 7 guidance. 8 With regard to simulation models like VISSIM, the Design Manual warns that 9 they “must be calibrated and validated for reliable results” and that they are “intended for 10 near term operational analyses.” Id. (docket no. 37-1 at 503). The Design Manual 11 further indicates that simulation models involving long-term forecasts “should be used 12 primarily to determine which scenarios are better than others” and they can do so only “if 13 the resultant MOEs demonstrate significant differentiation between scenarios.” Id. The 14 Design Manual offers as an example that “if Vissim is considered to be calibrated to a 15 given MOE within 15% of existing conditions (a very wide band), the scenarios need to 16 show greater than 15% differentiation between each other to be significant.” Id. No 17 showing has been made that the analysis performed in this matter was for the near term, 18 as opposed to the long term, or that two or more scenarios with significant differentiation 19 were involved. Thus, the Association’s argument that WSDOT failed to comply with its 20 own (or the FHWA’s) guidelines by not using VISSIM is actually contradicted by the 21 Design Manual from which the Association has extensively quoted. 22 1 The Design Manual also extinguishes any persuasive value of the Association’s 2 extra-record materials, namely, Swenson’s declaration and March 2023 memorandum.

3 The Design Manual explains why VISSIM was not an appropriate tool for the Project, 4 and it casts doubt on the reliability of Swenson’s opinions and his VISSIM results. Even 5 if, however, Swenson had explained why VISSIM might produce a more accurate 6 analysis, or had correlated his VISSIM statistics in some meaningful way with the TDR’s 7 LOS figures, neither of which he did, such opinion would not have served to undermine 8 the professional judgment of the FHWA.11 See Marsh v. Or. Nat. Res. Council, 490 U.S.

9 360, 378 (1989) (“When specialists express conflicting views, an agency must have 10

11 11 In response to concerns raised by the Association, the FHWA conducted an independent review of WSDOT’s I-405 Traffic Model and then stated in a memorandum dated July 7, 2021: 12 • The traffic analysis was consistent with FHWA Traffic Analysis guidance: 13 o Travel Demand Model – NCHRP 765 Analytical Travel Forecasting Approaches for Project-Level Planning and Design 14 o Traffic Analysis Toolbox Volume III: Guidelines for Applying Traffic Microsimulation Modeling Software published 2004 15 and with the Puget Sound Regional Council (PSRC) Regional Travel Demand Model, and . . . 16 • The [P]roject would not significantly impact traffic in the vicinity of the Canyon Park Business Center. 17 The FHWA project team and traffic analysis subject matter experts derived the 18 above conclusion upon the complete review of the traffic operation report provided by WSDOT and subsequent meetings and discussion of the methodology used for the Travel Demand Model and the operational VISSIM and Synchro models 19 deployed as part of the decision-making process within the context of the alternative development. The team developed detailed clarification questions 20 regarding the model’s development and calibration, which were submitted to WSDOT and they have sufficiently answered all questions and provided additional 21 clarification regarding model development and coordination with PSRC for the demand model. 22 Memorandum at 3 (docket no. 37-8 at 144). 1 | discretion to rely on the reasonable opinions of its own qualified experts even if, as an 2 || original matter, a court might find contrary views more persuasive.’’). 3 In its reply, the Association retreats from its assertion that WSDOT’s analysis was 4 || flawed because it did not use VISSIM, and it instead focuses on questions about the 5 || accuracy of WSDOT’s traffic model that were raised prior to and during a call involving 6 | Swenson, counsel for CPBCOA (Molly Lawrence), and WSDOT’s attorneys and 7 || consultants. Pl.’s Reply at 10 (docket no. 57 at 15) (citing docket no. 37-7 at 1196-97). 8 |] In an email dated June 3, 2021, Swenson raised doubts about an image “from the 2025 9 || SimTraffic model (build w/signal),” reproduced below, which, according to Swenson, 10 || showed vehicles being “denied entry on the west leg of the intersection.” CAR00119555 11 fi, / (docket no. 37-7 at 1196). The figure at issue 12 | depicts a mid-block node (as opposed to an 13 | “intersection”), which involves driveways on 14 the east and west of 17th Avenue SE. 15 = e According to Swenson, “a significant portion 16 of the vehicles exiting [a driveway on] the 17 eens west side of 17th are not actually entering the 18 ~ □ | network. The projected volumes are 185 for 19 || the PM peak hour and the range shown in the figure is between 101 to 200. This could 20 || result in a reduction of up to 15%— 20% of the NB [northbound] traffic on 17th not being 21 || reflected in the Build scenarios.” Jd. Swenson requested that “the model be updated to 22 || reassign the left-turns from the west side of 17th to right-turns and complete a u-turn 23

1 maneuver at the RAB [roundabout].” CAR00119555–56 (docket no. 37-7 at 1196–97). 2 In other words, Swenson speculated that vehicles attempting to turn left from the west-

3 side driveway would instead turn right, proceed southbound to the roundabout near the 4 Canyon Park P&R, and use the roundabout to essentially perform a U-turn to reorient 5 themselves in the northbound direction. 6 On July 1, 2021, one of WSDOT’s consultants (Barrett Hanson) responded to the 7 question that had been posed via email and during the subsequent call “about nodes on 8 17th Avenue SE” by indicating that “[o]ur team has reviewed the CPBCOA’s additional

9 concerns about mid-block model load points, and we continue to stand behind our 10 conclusions from the EA traffic analysis.” CAR00119554 (docket no. 37-7 at 1195). 11 Hanson further explained: 12 As we discussed during our last meeting, for the NEPA EA, we are reporting intersection level of service and delay at study intersections per industry 13 standard practices. At the request of the CPBCOA and your team, WSDOT provided queuing analysis information at intersections of interest within the 14 CPBC under the No Build and Build Alternatives. This is outside of our normal performance reporting metrics and was provided at the request of 15 CPBCOA. This analysis was completed using the preferred WSDOT approved traffic analysis tools (Synchro/SimTraffic). The developed 16 Synchro model was reviewed by your team. WSDOT and your team mutually agreed upon model input parameters and coding suggestions that were 17 incorporated in the final model. We maintain that our NEPA analysis is appropriate and consistent with WSDOT and FHWA guidance. 18 Id. (emphasis added). 19 Contrary to the Association’s accusation, WSDOT did not fail to provide an 20 explanation for refusing to revise the model as Swenson asked, and it did not fail to 21 “follow state and federal guidelines and protocols.” Pl.’s Reply at 10 (docket no. 57 at 22 1 15). As indicated in Hanson’s email, WSDOT performed an analysis that was consistent 2 with industry standards, and Swenson’s suggestion was “outside . . . normal performance

3 reporting metrics.” CAR00119554 (docket no. 37-7 at 1195). WSDOT used parameters 4 and coding on which it and CPBCOA had “mutually agreed,” and the Court will not 5 second guess WSDOT (or the FHWA) with respect to a disagreement between the parties 6 concerning methodology. See Coal. for Sustainable 520, 881 F. Supp. 2d at 1260 (“a 7 disagreement over methodology does not give rise to a claim under NEPA” (citing 8 Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985)

9 (NEPA does not require courts “to resolve disagreements among various scientists as to 10 methodology”), and Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 526 11 (9th Cir. 1994) (“NEPA does not require us to decide whether an EIS is based on the best 12 scientific methodology available or to resolve disagreements among various experts.”)). 13 3. Conclusion Regarding EIS

14 The Association has not raised any question or doubt as to whether the agencies 15 appropriately relied on growth projections outlined in the comprehensive plan currently 16 in effect, i.e., Imagine Bothell (2015). The Association also has not shown that the 17 agencies failed to select the proper traffic analysis tools to perform their work or 18 unreasonably rejected a proposal to evaluate the level of service at a mid-block node, as

19 opposed to an intersection. The Court concludes, as a matter of law, that WSDOT, the 20 FHWA, and the individual defendants did not act arbitrarily or capriciously in preparing 21 the EA, rather than an EIS, or in finding that the Project would have no significant impact 22 on the human environment. The Association has not demonstrated that an EIS would 1 serve any purpose in light of NEPA’s regulatory scheme as a whole, and the portion of 2 the Association’s motion for summary judgment, docket no. 50, seeking to require the

3 preparation of an EIS is DENIED.12 4 C. Decision Not to Revise or Supplement the EA 5 In connection with requiring federal agencies to take a “hard look” at the potential 6 environmental consequences of proposed actions, NEPA imposes “a continuing duty to 7 supplement previous environmental documents.” Price Rd. Neighborhood Ass’n v. U.S. 8 Dep’t of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997). An agency, however, “need not

9 start the environmental assessment process anew with every change in a project.” Id. 10 Rather, supplementation is required only when the agency “makes substantial changes in 11 the proposed action that are relevant to environmental concerns.” Id. (quoting former 40 12 C.F.R. § 1502.9(c)(1)(i), renumbered as 40 C.F.R. § 1502.9(d)(1)(i), while observing that 13 this CEQ regulation applies to an EIS, and not explicitly to an EA or FONSI); see also

14 23 C.F.R. § 771.130(a) (requiring the FHWA to supplement an EIS when it determines 15 that “[c]hanges to the proposed action would result in significant environmental impacts 16 that were not evaluated in the EIS” or “[n]ew information or circumstances relevant to 17 environmental concerns and bearing on the proposed action or its impacts would result in 18 significant environmental impacts not evaluated in the EIS”).

20 12 The Court declines to address the federal defendants’ alternative argument that, for purposes 21 of NEPA, any degradation in the level of service at surface street intersections does not constitute an impact on the “human environment.” See Fed. Defs.’ Mot. at 18–20 (docket 22 no. 55). 1 The Association’s argument that the EA should have been updated after issuance 2 of the Bothell Final EIS lacks merit for three reasons. First, the Bothell Final EIS did not

3 concern a change, let alone a substantial change, to the Project. Rather, it related to a 4 proposed revision to the City of Bothell’s comprehensive growth management plan. The 5 Bothell Final EIS assumed, for purposes of its analysis, that the Project, including the 6 direct access ramp linking the I-405 median with 17th Avenue SE, will be built. Nothing 7 contained in the Bothell Final EIS altered the scope or impact of the Project and/or direct 8 access ramp. Second, the information in the Bothell Final EIS was not “new.” WSDOT

9 and the FHWA were aware, long before the Bothell Final EIS was published, that the 10 City of Bothell was considering proposals to allow greater density in the Canyon Park 11 RGC. Indeed, the City of Bothell’s Draft EIS was referenced in both the TDR and the 12 EA. See TDR at § 3.3.3 (docket no. 35-8 at 295–96); EA at § 5.3 (docket no. 38-1 at 44). 13 Third, nothing in the administrative record indicates that any significant environmental

14 impact of the Project, as opposed to the City of Bothell’s amendment to its 15 comprehensive plan, was not evaluated in the EA. The Court concludes, as a matter of 16 law, that NEPA was not violated when the EA and FONSI were not supplemented 17 following issuance of the Bothell Final EIS. See Tri-Valley CAREs v. U.S. Dep’t of 18 Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (“Supplementation is not required ‘every

19 time new information comes to light after the EIS is finalized. To require otherwise 20 would render agency decision-making intractable, always awaiting updated 21 information.’ . . . Whether new information requires supplemental analysis is a ‘classic 22 example of a factual dispute the resolution of which implicates substantial agency 1 expertise.’” (quoting Marsh, 490 U.S. at 373 & 376)). Given this ruling, the Court need 2 not reach the issue of whether injunctive relief would be appropriate in this matter.

3 Conclusion 4 For the foregoing reasons, the Court ORDERS: 5 (1) The previously deferred portion of the Association’s motion for judicial 6 notice, docket no. 49, is GRANTED; 7 (2) The Association’s motion for summary judgment, docket no. 50, is 8 DENIED;

9 (3) The motion for summary judgment, docket no. 54, brought by Millar and 10 WSDOT is GRANTED, and the Association’s claims against these defendants are 11 DISMISSED with prejudice; 12 (4) The motion for summary judgment, docket no. 55, brought by Buttigieg, 13 Pollack, Rizzo, and the FHWA is GRANTED, and the Association’s claims against these

14 defendants are DISMISSED with prejudice; 15 (5) The Clerk is DIRECTED to enter judgment consistent with this Order, to 16 send a copy of the Judgment and this Order to all counsel of record, and to CLOSE the 17 case. 18 IT IS SO ORDERED.

19 Dated this 25th day of July, 2023. 20 A

21 Thomas S. Zilly 22 United States District Judge