Warning Issued to NYSDOT

WPU has been contesting the EDC proposed ramps off of the Van Wyck for the better part of a year and a half-and in that time we have seen how the agency's consultants have consistently come up short in their efforts to explain of they are going to accommodate 80,000 car trips a day without totally messing up the highway system. And for the most part NYSDOT's own in-house analysts have agreed with us-with skepticism oozing out of all of the emails we have obtained through our Freedom of Information requests.

So it was with great dismay that we received a communication from the state informing us that the EDC Environmental Assessment for the ramps is about to be given a green light by the very skeptics who trashed EDC's submission a short while ago. Even greater was our dismay when WPU traffic engineer reviewed the accompanying data for the EA.

What has changed? Not too much-and the same impossible accommodation for the massive increase in cars has not been reconciled with the need to insure that the Van Wyck is not degraded by the auto efflux from Willets Point. The SDOT altered mindset then appears to have devolved not from the newly developed sophistication of EDC''s consultants, but from simply trying to get away from the political beating that it has been getting from a determined and bullying Bloomberg administration.

As a result, WPU's crack environmental attorney Mike Gerrard has penned a stern warning to SDOT-and the warning focuses, inter alia, on a grave mistake by the agency in its acceptance of a fatal flaw in the EA's analysis: its assumption of a baseline analysis that excludes the possibility that there would be no project built and no ramps constructed.

Simply put, SDOT accepts the city's argument that Willets Point will be built, and that therefore the ramps are needed to mitigate the massive traffic it will generate. But that assumption ignores the fact that the city has said that, without the ramps, no project can go forward at the Iron Triangle. This is the key baseline analysis that EDC has ignored and that SDOT ignores in apparent collusion.

So it is not proper for the baseline analysis to assume that the project is built and then compare the Van Wyck traffic with and without the ramps. It is a violation of basic environmental review principles and a apparent knuckling under by the state to political pressure. It opens SDOT up to a legal challenge that will severely embarrass it's alleged fairness and professionalism. When its internal criticism are aired in any legal proceeding it will not even be left with a fig leaf to cover its gross abdication of independent review and professional responsibility.

Here's Gerrard's letterl-with a copy sent to the Federal Highway Authority:

April 19, 2011

Phillip Eng, P.E.
Regional Director
New York State Department of Transportation
47-40 21st Street
Long Island City, New York 11101

Re: Van Wyck Expressway Ramps

Dear Mr. Eng:

We are in receipt of your April 12 letter concerning the environmental assessment and review process for proposed ramps connecting the proposed Willets Point project with the Van Wyck Expressway.

We have begun a preliminary analysis of the material in the January 2011 draft of the Environmental Assessment (EA). This examination leads us to conclude that NYS DOT’s approval of the ramps would violate its statutory obligation to ensure that new connections to interstate highways do not lead to significant degradation of traffic conditions on those highways.

The EA embodies a fundamental conceptual flaw. It assumes that the Willets Point project will be built, and it assesses whether the ramps will improve traffic conditions against that future baseline. But since the City of New York has consistently said that the construction of the full project is contingent on the approval and construction of the ramps, the baseline for analysis should be the future without the Willets Point project at all. A comparison of conditions with the Willets Point project, but with and without the ramps, is meaningless, because the City says that there will be no Willets Point project without the ramps. It is pointless to analyze an impossibility.

After looking at today’s conditions (which the Final Generic Environmental Impact Statement (FGEIS), the Access Modification Report (AMR) and the EA have all done to various extents), the EA should analyze and compare 1) future conditions on the Van Wyck without the Willets Point project or the ramps, and 2) future conditions on the Van Wyck with the Willets Point Project and the ramps. (The EA looks at future conditions in both 2013 and 2035, which is sensible.)

The City, as applicant and project proponent, understandably does not wish to see such a comparison, but it is NYS DOT’s obligation under NEPA, SEQRA, the Federal-Aid Highway Act and the New York Highway Law to ensure that it is carried out.

It appears that NYS DOT has ignored its own justified skepticism, expressed eloquently by its own staff in voluminous internal exchanges and in communication with NYC EDC that have been obtained by FOIL and have been widely published in the NY Times. This sudden departure from proper due diligence is underscored when analyzing the substance of the data inherent in the EA.

Our traffic engineer Brian Ketcham has reviewed the January 2011 EA, Chapter 9 -- Transportation, and compared it with the October 2010 version. Except for a revised note on the table on page 9-2, the transportation text is identical. Moreover, no change has been made in Appendix D (more than 3,600 pages), the supporting documentation for the transportation analysis.

It is quite disturbing that in the 15 months since we met with both NYS DOT and the FHWA and provided a thorough review of the deficiencies of the original NYC EDC traffic submission for the AMR of August 2009, NYS DOT has not ensured that these deficiencies were corrected. The 2008 FGEIS for the Willets Point Project showed severe traffic impacts on the Van Wyck; the AMR did not. The large discrepancies between the AMR and the FGEIS remain unexplained, and now the revised EA appears to be agreeing with the AMR.

The numbers used in the FGEIS and the AMR are starkly different. For example, the FGEIS indicates that 46% of all the traffic from Willets Point will be diverted to the ramps, while the AMR puts that figure at 16%. The October 2010 EA adjusts this total upwards to about 32% of Willets Point traffic using the Van Wyck in order to lower local traffic impacts but still claims travel along the Van Wyck acceptable, contrary to the independent modeling by Mr. Ketcham that was submitted to you more than a year ago, and in continuing contradiction to what was reported in the FGEIS.

Mr. Ketcham’s work has also shown numerous other technical flaws in the analysis. His review of the new EA draft, which was provided to us last week, is ongoing. These inconsistencies highlight the importance of the request made by Willets Point United and endorsed by the Natural Resources Defense Council and the Sierra Club for an independent review of the documents, especially since the principal traffic analysis was prepared by AKRF, a consulting firm that is simultaneously working for NYC EDC and NYS DOT.

As you know, NYS DOT is in the process of upgrading the Kew Gardens Interchange at an estimated cost of $140 million, and NYS DOT’s own analysts have pointed out that the Willets Point traffic will make this work meaningless because of all the excess traffic generated by that development. NYS DOT engineers were concerned about 16% of Willets Point traffic moving along the Van Wyck Expressway. Now that EDC has doubled this number, one would assume that these concerns are even greater.

As Mr. Ketcham made clear in a letter to NYS DOT last year, “Thirty-one million square feet of new development is scheduled for the area surrounding Willets Point (including the 11 million square feet of the Willets Point project itself). As the attached report shows, assuming more than half of all new trips are by mass transit, these new projects will generate about 172,000 new car and truck trips daily, more than double the 80,000 estimated for Willets Point itself. If mass transit in downtown Flushing cannot handle another 196,000 daily transit trips assumed for this 31 million square feet of new development, car and truck trips will be even greater. Some of this new traffic will use the Van Wyck and some will move through the Kew Gardens interchange. The question is, have you accounted for all this new development and can you accommodate as many as 2,000 new car and truck trips an hour moving though the Kew Gardens interchange?”

When and only when a proper traffic analysis is performed will NYS DOT be in a position to actually do its job: examine whether this project meets the eight criteria established by the FHWA for reviewing proposed access modifications.

Another point deserves mentioning. The City repeatedly promised, including in affidavits submitted to Justice Madden of the New York State Supreme Court, that it would not carry out the condemnation of properties at Willets Point until the ramps had been approved. In February 2011 the City announced that it was abrogating that pledge and was segmenting the project into at least two phases. Phase I would involve condemnation and construction without the ramps. When informed of this, Justice Madden issued an order to show cause directing the City to explain why her 2010 order dismissing the Article 78 proceeding should not be vacated due to the City's actions going forward with condemnation without having obtained approval for the ramps.

These actions demonstrate the City’s disregard of traffic impacts and of any pledges it makes to other units of government, or the public, with respect to Willets Point.

I will also take this opportunity to remind you of the pledge you made in your letter to me of December 6, 2010 that NYS DOT would comply with the newly enacted Smart Growth Public Infrastructure Policy Act in connection with this project. We have seen no evidence of such compliance, including the smart growth impact statement that is required by that statute.

We reserve all our legal rights in this matter.

Sincerely,

Michael B. Gerrard

cc: Kenneth Dymond -- FHWA