Highway design and the public hearing requirements of federal highway legislation

Highway design and the public hearing requirements of federal highway legislation: D.C. Federation of Civic Associations v. Volpe; Elliot v. Volpe; Concerned Citizens for the Preservation of Clarksville v. Volpe; and Wildlife Preserves, Inc. v. Volpe

Environmental lawsuits against federally aided highway projects, like other attempts to litigate the environmental effects of governmental projects which have been in formulation for many years, often face the argument that recently enacted laws designed to protect the environment do not apply to projects which were already in progress, but still incomplete, when the laws were passed. Generally the impact of the new statute on ongoing projects is probed by asking two questions: How far advanced was the project on the date when the statute or regulation became effective? Did Congress or the agency intend to impose the new environmental constraints on projects which had already proceeded this far? Answers to these questions must be premised on a detailed analysis of the relevant agency's decision-making process, an assessment of decisions remaining to be made, a construction of the environmental statute or regulation and, if the intent of Congress or the agency is not plain, a review of the provision's legislative or administrative history.

Determining the stage of development of a governmental project is problematic, because formal decision-making processes defined by statute and regulation and the informal working relationships and patterns of decision which grow up around the formal process frequently conflict in practice. Difficult and complex federal administrative decision-making is usually fragmented, with initial responsibility for separate components dispersed among several administrators. When some part of the decision-making process has been completed, quite naturally there arises a partial, informal commitment to a final result which will not require rethinking initial parts of the process. Thus a sense of finality may be developed before the formal decision, as defined by statute and regulation, has been made.

A single statutory provision, the urban impact amendment to 23 U.S.C. § 128, which was enacted as § 24 of the Federal-Aid Highway Act of 1968, illustrates the range of issues which the problem of the applicability of recent legislation to pre-existing, ongoing projects poses. The close analysis set out below of § 128 and its implementing regulation attempts to assist attorneys in analyzing the same problem whenever agencies seek to escape the effect of recent environmental legislation by arguing that the legislation or regulations became effective too late to halt environmentally destructive federal action.

Other statutory provisions designed to safeguard the environment from administrative action which agencies have argued — or are likely to argue — do not apply to ongoing projects include: § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. [1 ELR 10104] § 1653(f) (see also 23 U.S.C. § 138); The National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq.; § 136 of the Federal Air Highway Act of 1970, 23 U.S.C. §§ 109(g)-(j); § 16(C)(4) of the Airport and Airway Development Act, 49 U.S.C. § 1716(C)(4); and § 14 of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. § 1610.

Another, familiar statute has been subjected to a brief, similar analysis elsewhere in this month's Comments. See 1 ELR 00000. See also 1 ELR 10004. Several agencies have argued that this statute, the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 and 4331 et seq., was not intended to apply "retroactively." Here, as in the case of § 128, "retroactivity" is a misnomer. The question is whether any agency action which remains to be taken in the administration of a project initiated prior to the enactment of NEPA can be effectively restudied in light of environmental considerations which the act imposes. Since NEPA's focus is on proposed agency actions, where the action to be studied has not occurred only the prospective application of the act is at issue.

Before 1968, 23 U.S.C. § 128 required any state highway department seeking federal aid for the construction of a highway in an urban area to hold a public hearing on the economic impact of the proposed highway. By amendment, effective August 23, 1968, this section was expanded to include the effects of the highway on environmental and social values and on urban planning.¹ The federal regulations in effect at the time of the amendment set out the standards for the public hearing, which preceded the state highway department's decision on the location of the highway.

In January, 1969 the Federal Highway Administration (FHWA) and the Bureau of Public Roads (BPR) promulgated Policy and Procedure Memorandum 20-8 (PPM 20-8), 23 C.F.R. Ch.I, pt.1, app.A (1970). This regulation was designed to insure that social, economic and environmental effects are given proper consideration in proposed alternate highway locations and designs. The memorandum provides for two public hearings. The first is on the highway corridor which must be chosen before a route location may be proposed to or approved by DOT. After route selection, a second public hearing on the proposed design of the highway must occur "before the state highway department is committed to a specific design proposal." However, merely holding two public hearings, or affording an opportunity for them, is not sufficient to satisfy the regulation's requirement that social, economic and environmental effects be considered before the state highway department may request location or design approval. Consideration of these effects:

shall include an analysis of information submitted to the state highway department in connection with public hearings or in response to the notice of the location or design for which a state highway department intends to request approval. It shall also include consideration of information developed by the state highway department or gained from other contacts with interested persons or groups. … Moreover, each request by a state highway department for approval of a route location or highway design must include a study report which contains a detailed analysis of alternatives and reasons supporting the proposed location or design. 23 C.F.R. Ch. I, pt. 1, app. A, para. 9 (1970).

The drafters of PPM 20-8 recognized that many highway projects which had been initiated² before the PPM went into effect on January 14, 1969 had not yet reached a stage of completion which justified exemption from the newly promulgated requirements. For this reason paragraph 6.d. of the regulation attempted to describe the existing projects which would, and those which would not, be required to meet the new public hearing requirements:³

d. With respect to a project on which a hearing was held, or an opportunity for a hearing afforded, before the effective date of this PPM, the following requirements apply:

(1) With respect to projects which have not received location approval:

(a) If location approval is not requested within 3 years after the date of the hearing or an opportunity for a hearing, compliance with the corridor hearing requirements is required unless a substantial amount of right-of-way has been acquired.

(b) If location approval is requested within 3 years after the date of the hearing or an opportunity for a hearing, compliance with the corridor hearing requirements is not required.

(2) With respect to those projects which have not received design approval:

[1 ELR 10105]

(a) If design approval is not requested within 3 years after the date of the hearing or an opportunity for a hearing,⁴ compliance with the design hearing requirements is required.

(b) If design approval is requested within 3 years after the date of the hearing or an opportunity for a hearing, compliance with the design hearing requirements is nevertheless required unless the division engineer finds that the hearing adequately dealt with design issues relating to major design features. Id., at para. 6.d.

Paragraph 6.d. essentially splits highway projects initiated prior to the effective date of PPM 20-8 into those for which approval for the route location has not been granted, and those for which design approval has not been granted. Route location approval usually occurs at a fairly early stage in the planning of a highway project. Because the Federal-Aid Highway program began in 1956, many projects reached this plateau of development before January 14, 1969 when PPM 20-8 went into effect. But since design hearings leading to design approval were not required before that date, design hearings for these projects have not yet been held. Where projects in this posture have been challenged in court, the issue under PPM 20-8 reduces to whether design approval for the project had been requested within 3 years of the location hearing or in any event granted prior to January 14, 1969 when PPM 20-8 became effective. This issue is a mixed question of law and fact, because the court must define "design approval" under the regulation before it can determine if the actions which together satisfy that definition occurred prior to January 14, 1969.

Four recent cases⁵ have raised this issue. They are discussed in the following analysis.

D.C. Federation of Civic Associations v. Volpe

In D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754 (D.D.C.1970), plaintiffs sought to enjoin the construction of the Three Sisters Bridge across the Potomac River. This particular highway battle has a long history⁶ which climaxed with the enactment of § 23 of the Federal-Aid Highway Act of 1968 (82 Stat. 827-828 (1968)). Essentially, § 23 ordered the reluctant D.C. government to commence work within 30 days on four highway projects, including the Three Sisters Bridge. Suit was filed to halt the project until various planning and procedural provisions of Title 23 of the United States Code and Title 7 of the D.C. Code had been satisfied.

The district court granted summary judgment for defendants, holding that in § 23 of the 1968 Act Congress directed that the four highway projects should go forward, bypassing normal planning and procedural requirements, including § 128 of Title 23 of the United States Code. The U.S. Court of Appeals reversed and remanded the case to the district court to determine whether the planning and procedural requirements of Title 23 had nevertheless been satisfied. In aid of remand the court provided guidelines for the district court to usein applying § 128 and PPM 20-8. After a 10-day trial, which included the testimony of Secretary Volpe and other highway officials intimately involved in the planning of the Bridge, the district court held, inter alia, that since federal approval of the bridge's design had not been requested within three years after location hearings for the bridge had been held, the design hearing requirements of PPM 20-8 were applicable to the project. The construction of the bridge was enjoined pending compliance with these requirements.

In its decision the district court relied on the guidance received from the court of appeals⁷ and held simply that the term "design approval" as used in PPM 20-8 para. 6.d. (2) should be interpreted as final design approval, i.e. "approval of the plans, specifications and estimates for the entire project. …"⁸ The rationale [1 ELR 10106] for this finding was that:

The purpose of the PPM is to insure maximum public participation in the selection of the location and design of Interstate Highway projects. Since the previous regulations provided only for a location hearing, the Court concludes that the PPM provides for a design hearing for those projects already in the planning process unless they had progressed to the point where the final plans had been prepared and approved. At this stage a design hearing would serve no purpose since a commitment would already have been made for the design of the project. D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754, 782 (D.D.C.1970).

The "commitment" to which the court refers is clearly the contractual obligation of the federal government which results from the Secretary of Transportation's approval of plans, specifications and estimates under 23 U.S.C. § 106. Design hearings held by state officials are of little value in the planning of a highway if the state officials are relatively powerless to alter the planned project to conform with modifications which the hearings might suggest. However, the state's power to make major design changes is significantly lessened only after the federal government has committed itself to bear a proportionate share of the project's costs. Administrative action short of this binding approval may be quite far advanced, and annoying to begin all over again, but nevertheless the district court implicitly reasons that the drafters of PPM 20-8 had not considered mere inconvenience to administrators or delay of highway projects sufficient justification for excusing a partially completed but not yet finally approved project from the design hearing requirements. Essentially the court interprets the regulation to mean that as long as the power to plan the project has not been removed from the state by operation of the statute, i.e., by federal approval of plans, specifications and estimates, that power must be exercised in accordance with all policy constraints then in existence. This would include the design hearing requirements of PPM 20-8 for projects not finally approved before January 14, 1969.

Implicit in the district court's reasoning is an analysis of the FHWA's decision-making process for approval of highway designs. The court is not persuaded that federal approval for highway designs can occur prior to the mutual state and federal agreement on plans, specifications and estimates which is required by statute and is clearly understood by officials on all levels to have occurred when definite, legally operative events (e.g., signings, transmittals, etc.) have occurred. Thus the court rejects the argument that creeping approval, i.e. approval which informally emerges as technical precision and detail develop in the project design, is sufficient to satisfy PPM 20-8. Informal procedures which were not inconsistent with statute or regulations prior to the promulgation of PPM 20-8 were disregarded by the court in determining the nature of the decision-making process for highway design approval and the effect of PPM 20-8 on that process and projects subject to it. The district court holds that PPM 20-8 excuses only those projects which have already received final design approval and it concludes that existing law defines final design approval as approval of plans, specifications and estimates.

Having determined the stage of development which a highway project must reach in order to excuse it from compliance with the design hearing requirements of PPM 20-8, the district court then examined the administrative history of the Three Sister's Bridge project to see if it had reached that stage. Since the defendants had admitted that final design approval had never been requested or given after the location hearings were held in 1964, the district court concluded that design hearing were required.

To insure the validity of its ultimate conclusion that hearings should be held, the district court went beyond its interpretation of the term "design approval" and found alternate grounds for its holding in the administrative history of the project. Defendants had argued that the design approval required by PPM 20-8 had occurred in September of 1966 within 3 years after 1964 location hearings. The court examined the record⁹ and concluded that although "a start of the design process" may have been made, design approval of any sort had not been requested or granted either at that time or at any earlier or later time.

The district court's interpretation of the applicability of PPM 20-8 design hearing requirements to existing projects balances the competing interests of highway program administrators, who are concerned with mission achievement, project delays and rising costs against those of environmentalists, who are dissatisfied with highway programs and seek to conform them to environmental values where possible. Unfortunately, not all courts which have faced this issue have found this compromise acceptable.

[1 ELR 10107]

Elliot v. Volpe

In Elliot v. Volpe, 1 ELR 20243 (D.Mass. April 20, 1971), two residents and various citizen groups brought suit to halt the construction of Interstate Highway 93 through Someville, Massachusetts. They contended, among other things that PPM 20-8 design hearing requirements applied to the project but had not been followed. In its decision rendered on motions for summary judgment the Federal District Court for Massachusetts disagreed. Location hearings for the highway project involved in Elliot v. Volpe had been held May 10, 1960 and the Somerville route received federal approval in October of 1964. However, plaintiffs argued that the design approval envisioned in PPM 20-8 Para. 6.d.(2) had not occurred until June 30 and December 23, 1969, respectively, when plans, specifications and estimates for the two highway segments at issue were finally approved by DOT. Plaintiffs relied specifically on the district court's reasoning in D.C. Federation of Civil Associations v. Volpe, supra, to support their claim. In a brief opinion the district court simply observed that the testimony of former and present federal highway program administrators involved in the preparation of PPM 20-8 conflicted on the meaning of "design approval." Former Federal Highway Administrator Lowell Birdwell had stated that the term design approval meant "final" design approval and did not occur until the plans, specifications and estimates for the project had been accepted. The court was clearly troubled by the disruption of ongoing highway projects which such an interpretation would cause. Relying on unspecified sources in the record, the court held that design approval for any particular highway project begins with "decisions regarding the general geometry of a highway … in its relation to physical and topographical features of the highway location and adjacent land and structures in densely settled areas." 1 ELR 20247. The court felt that it involved "… decisions which determine the magnitude of the highway structures and establish the highway profiles." 1 ELR 20247.

Such decisions frequently involve determination whether the highway will span or tunnel intersecting waterways and highways, whether it will be elevated or depressed through residential and other areas, how access routes to and exit routes from the highway will connect with local systems, where interchanges will be erected and what will be their confirmations [sic], how and where public utilities will be relocated, etc. When approved, these decisions obviously establish the major design features of the highway, and when reduced to sketches and drawings show what the highway segment will look like if and when approved. 1 ELR 20247.

For these reasons the district court concluded that this informal give-and-take planning process is the "design approval" meant by PPM 20-8 Para. 6.d.(2) and that it had occurred in June, 1966.

Approval of the design decisions is one of the most important steps taken in planning highway [sic] for until design approval is given there is usually no authorized guidelines on which to predicate the work of site preparation or construction plans, specifications and estimates. PPM 20-8 clearly recognizes the importance and role of design approval.It treats it as a separate stage in the development of the highway project. Mr. Birdwell's interpretation fails to accord it the important function intended by PPM 20-8 and by customary administrative practices and procedures of highway planning and construction. It is conceivable, of course, that construction plans, specifications and estimates might be approved contemporaneously with the approval of design decisions, but the former necessarily depend upon and must logically and chronologically follow design approval. 1 ELR 20247.

The district court in Elliot was obviously impressed with the complexity of a major interstate highway and with the informal but nevertheless intricate planning process which had grown up between federal and state highway administrators. The court accepted the testimony of those administrators who argued that once they had accepted the design ofany particular element in a complex highway project they should not be made to reevaluate that decision in the light of newly emphasized or recently developed facts which might be brought out at a design hearing.

As the Three Sisters Bridge case shows, however, PPM 20-8 was not designed with the convenience of highway builders in mind; rather, the memorandum apparently was drafted to complicate highway approval as much as is necessary to insure that the heretofore unconsidered social, economic and environmental impacts of highways — those important indicia of how well highways are serving the society for which they are built — were required to be introduced into highway decision-making through public hearings. The district court in the Three Sisters Bridge decision recognized the implications of applying PPM 20-8 to existing projects. The district court in Elliot v. Volpe, distracted by considerations of project delay and administrative inconvenience, did not.

Concerned Citizens for the Preservation of Clarksville v. Volpe, and Wildlife Preserves, Inc. v. Volpe

More recent decisions in two of the circuits lend support to the district court in the Three Sisters Bridge case, but also weaken that reasoning with their actual holdings. In Concerned Citizens for the Preservation of Clarksville v. Volpe, 1 ELR 20318 (5th Cir. June 9, 1971), and Wildlife Preserves, Inc. v. Volpe, 1 ELR 20316 (3rd Cir. June 7, 1971) the Fifth and Third Circuits respectively stated that the design approval contemplated by PPM 20-8 Para. 6.d. is "final approval." The meaning each court gave to this conclusory term, however, was somewhat different.

[1 ELR 10108]

In the Clarksville case final design approval, i.e., approval of plans, specifications and estimates,¹⁰ had occurred for most of the challenged project prior to the effective date of PPM 20-8 but had been made contingent upon the approval of the remaining segments of the project. This contingent-but-nevertheless-final approval had occurred on May 21, 1968 and the location hearings had preceded this approval by about three months. As stipulated by the parties:

38. The revised design schematics for at least one of the eleven interchanges on the plan for the Mo-Pac Expressway between Town Lake and U.S. Route 183 were not complete as of the date of these stipulations.

* * *

39. On October 24, 1969, Federal defendant Cary stated … that approval of the revised schematic designs for portions of the Mo-Pac project located in and around U.S. 183 was contingent upon … completion of additional studies to determine the most practical design for the U.S. 183 interchange … 1 ELR 20323-324.

The Fifth Circuit, somewhat like the district court in Elliot v. Volpe, supra, had to grapple with FHWA's equivocal concurrence in the design of most of the project. FHWA had hedged its concurrence and was not yet committed under 23 U.S.C. § 106 to finance the project so that it could use its bargaining power to assure that the whole project met FHWA standards. The difficulty with the court's opinion in the Clarksville case is that the court was willing to let the federal government have it both ways, so that what was contingent for some purposes was final for others. If final approval was being withheld pending compliance of the entire project with existing standards, then a change in the agency's standards in the interim, reflecting a change in policy, could reasonably be imposed on the project.

The Fifth Circuit was clearly influenced in its decision by the lower court's failure to grant interim relief during the pendency of the lawsuit, which allowed the highway builders to improve their case by beginning actual construction of the highway project. However, even the threatening mootness of the case did not lead the Fifth Circuit to accept all of DOT's reasoning, and the court did hold that to the extent that the project had not yet been finally approved, strict adherence with the requirements of PPM 20-8 would be necessary:

Agreeing with the proposition that the design approval contemplated by PPM 20-8 is final approval, we feel that although termed contingent, final design approval had been given the Mo-Pac Expressway project prior to the effective date of the PPM, except as to those design aspects specifically excluded from approval. 1 ELR 20324.

* * *

Since the record indicates that the design of the U.S. 183 interchange had not been approved as of the effective date of PPM 20-8, even though the initial request for design approval was made within three years of the 1968 [location] hearing, the case must be remanded for the district court to order the Division Engineer of the Bureau of Public Roads to determine whether the 1968 hearing 'adequately dealt with design issues relating to the major design features' of the interchange, and, if he finds that the 1968 hearing did not do so, order the Texas Highway Department to hold a public hearing regarding the design of the interchange in accordance with the requirements set out in PPM 20-8. 1 ELR 20324.

In Wildlife Preserves, supra, decided in the Third Circuit two days before the Fifth Circuit's decision in the Clarksville case, highway opponents argued that design approval which preceeded PPM 20-8 was not final, because the design of an interchange within the highway project had been changed and then approved by FHWA after January 14, 1969. This latter approval had occurred on October 13, 1969. Since the case was on appeal from the district court's grant of defendants' motion for summary judgment, plaintiffs argued that this "post-contract" design change (after construction contracts had been let) created a question of fact concerning final approval which rendered summary judgment improper. The Third Circuit concluded that no issue of fact remained in the case, because (1) the "design approval" required by PPM 20-8 is final design approval, which occurs when plans are approved and the federal government becomes committed to its proportionate share of the project's costs; (2) the only testimony on design approval supports the view that such final approval occurred on November 16, 1966 with BPR approval of "essentially complete contract drawings." 1 ELR 20318. The court therefore concluded that district court's grant of summary judgment had been proper.

Wildlife Preserves, Inc. presents an excellent example of a highway project which, on the effective date of PPM 20-8, was essentially beyond the planning stages but which had not yet caused environmental harm. The plaintiffs in Wildlife Preserves, Inc. argued that if the highway has not yet been built then the harm can be averted, although the argument was couched in terms of final approval. But the federal highway program administrators who drafted PPM 20-8 were not unmindful of the bureaucratic interests in effective program management and minimization of costs and delays. The resulting memorandum required [1 ELR 10109] something less than reevaluation of all projects which had not yet been built. The point of no return for existing projects which was chosen was that point where, in the view of highway builders, the major planning process ended and the construction process began. That point is reached only after formal approval of the plans, specifications and estimates for the project.

Elliot v. Volpe, supra and, to a limited degree, Concerned Citizens for the Preservation of Clarksville v. Volpe, supra, represent successful attempts by highway administrators to avoid the obligations their own regulations impose. It is unfortunate that the courts have allowed the reasonable compromise embodied in PPM 20-8 to be avoided for reasons of administrative convenience, when those same reasons had been once weighed in arriving at that compromise.

1. 23 U.S.C. § 128(a).

"Any state highway department which submits plans for a Federal-Aid Highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community."

2. Federal Aid Highway programs are initiated by a state highway department's submission to DOT of a "program of proposed projects for the utilization" of funds allocated to the state by DOT. 23 U.S.C. § 105.

3. While PPM 20-8 requirements presumably satisfy 23 U.S.C. § 128 as amended, they are more demanding in at least two particulars: they are not limited to "urban" highways, and they require separate hearings before corridor and design approval. See O. Gray, Environmental Requirements of Highway and Historic Preservation Legislation, 20 Cath. U.L. Rev. 45 (1970). Paragraph 6.d. limits the applicability of the regulation's hearing requirements with respect to existing projects. However, not all the obligations imposed upon the state and federal decision-making process by the regulation are dependent on hearings being held. The discussion in the text, therefore, is not directed to these obligations which may be applicable to a project although a design hearing is not required.

4. The hearings referred to presumably are location hearings under the law prior to the 1968 amendment and PPM 20-8.

5. D.C. Federation of Civic Associations, Inc. v. Volpe, 316 F. Supp. 754 (D.D.C.1970) enforcing 436 F.2d 436 (D.C.Cir) rev'g. and aff'g. 308 F. Supp. 423 (D.D.C.); Elliot v. Volpe, 1 ELR 20243 (D.Mass. Apr. 20, 1971); Wildlife Preserves, Inc. v. Volpe, 1 ELR 20810 (3rd Cir. June 7, 1971); Concerned Citizens for the Preservation of Clarksville v. Volpe, 1 ELR 20318 (5th Cir. June 9, 1971)

6. See D.C. Federation of Civic Associations, Inc. v. Airis, 391 F.2d 478 (D.C.Cir. 1968). See also D.C. Federation of Civic Associations, Inc. v. Volpe, 316 F. Supp. 754 (D.D.C. 1970). Appeals docketed, Nos. 24838 and 24843, D.C. Cir. Nov. 24, 1970. This appeal was argued before Chief Judge Bazelon and Judges Fahy and McKinnon on July 22, 1971.

7. D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754, 782 (D.D.C. 1970).

"The opinion of the Court of Appeals strongly suggests that design approval' as used in the PPM is to be interpreted to mean approval of the final design for the project. In discussing the questions which would be before this Court in determining whether the PPM has been complied with, the Court of Appeals stated that 'appellees concede … that approval of the final design was not obtained before the [PPM] became effective.' (Emphasis supplied). The Court then went on to list the three questions which are raised by para. 6.d.(2) of the PPM. Plaintiffs argued that it may be inferred from this statement that the Court of Appeals interpreted 'design approval' as approval of the final plans, specifications and estimates for the project. This interpretation appears reasonable to this Court." Id.

8. D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754, 782 (1970). The term "plans, specifications and estimates" has special meaning in the world of highway program administrators. Under 23 U.S.C. § 106(a) the Secretary's approval of plans, specifications and estimates for a particular project is "deemed a contractual obligation of the Federal Government for the payment of its proportional contribution …" for the project.The state's obligation for its proportional share and for post-construction maintenance of the project is fixed soon thereafter when both parties "… enter into a formal project agreement …" 23 U.S.C. § 110(a). Read together these two sections support the premise that the federal government becomes committed to a project upon approval of plans, specifications and estimates, but that the state government is not committed to its share of the costs of the project until it enters into a "project agreement." This interpretation is supported by FHWA regulations implementing the statute. 23 C.F.R. Chap. I, pt. 1, § 1.10(b) states:

"(b) Approval. No project or part thereof for actual construction shall be advertised for contract nor work commenced by force account until plans, specifications and estimates have been submitted to and approved by the Administrator and the State has been so notified." See also § 136 of the Federal-Aid Highway Act of 1970, 84 Stat. 1734 (Dec. 31, 1970).

9. D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754, 783 (1970).

"The testimony of Mr. Hall [Division Engineer] establishes that in September, 1966, the District of Columbia was unsure of many important aspects of the bridge design. At that time no decision had been made as to what type of bridge and interchanges would be built (Tr. 558); what the appearance of the bridge would be (Tr. 559); and the preliminary plans were for a bridge with a single 850 foot span over the river with no piers in the river. (Tr. 559). Mr. Hall testified that at the time he authorized the preparation of contract plans he did not have before him for consideration any drawings or engineering materials indicating design factors other than the map which was submitted by the district. (Tr. 557; plaintiffs' exhibit 33). No vertical alignment is shown on that map, although he testified that certain inferences about the vertical alignment could be drawn from the fact that the bridge shown went under the eastbound lanes of the George Washington Memorial Parkway and over the westbound lanes. (Tr. 559). It is also clear that Mr. Hall was considering only the bridge from abutment to abutment and not the ramps and interchanges in his actions at that time." Id.

10. The terms "plans, specifications and estimates" is not used by the Court of Appeals. Approval of them is premised on the following portion of the opinion:

"On December 21, 1967, engineering studies and schematic plans for construction of the Mo-Pac Expressway prepared by the Texas Highway Department were forwarded to the Federal Bureau of Public Roads. … A route-sketch map of the expressway was subsequently forwarded to the Bureau of Public Roads on January 12, 1968, and certain further documentation was supplied thereafter. … On May 21, 1968, the DOT approved the proposed route, and with certain modifications, the schematic plan for the Mo-Pac Expressway and the results of the public hearing (location hearing) held on February 6, 1968, and authorized the commencement of physical development of the expressway and indicated that, on the basis of the approved plan, federal financing for construction would be forthcoming." Concerned Citizens for the Preservation of Clarksville v. Volpe, 1 ELR 20319 (5th Cir. June 9, 1971). Although the court's opinion is unclear, actual construction had apparently commenced prior to its opinion in the case. Id., at 20320.