Environmental / Regulatory Update

• Wisconsin –
• Changes with 2017 WISCONSIN ACT 183 regarding wetlands, other recent law changes affecting transportation.
• 2017 WISCONSIN ACT 368 passed 12/15/2018, which made changes to use of federal funds for WisDOT projects and changes regarding local transportation projects.
  • Use of Federal Funds: The act requires the Department of Transportation (DOT) to expend federal funds on at least 70 percent of the aggregate project components eligible for federal funding each fiscal year for the following types of projects on which DOT expends federal moneys: Southeast Wisconsin freeway megaprojects; Major highway development projects; State highway rehabilitation projects with a total cost of less than $10 million.
  • Local Projects:
    • The act requires DOT, if disbursing aid to a political subdivision for a project, to notify the political subdivision whether the aid includes federal moneys and the project components for which federal moneys must be paid, if any. Under the act, “project” means the development, construction, repair, or improvement of a local road or a local bridge
    • The act prohibits DOT from requiring a political subdivision to comply with any portion of DOT’s facilities development manual, other than design standards, for any project that meets all of the following criteria:
      • The project proposal is reviewed and approved by a professional engineer or by the highway commissioner for the county in which the project will be located.
      • The project is conducted by a political subdivision with no expenditure of federal money..
    • The act also requires that any local project, as defined under the act, funded in whole or in part with state funds under the surface transportation urban program, the surface transportation rural program, or the local bridge program be let through competitive bidding and by contract to the lowest responsible bidder, pursuant to certain provisions under current law related to bids.
    • Proposed Regulatory Changes
  • Federal – Waters of the United States (WOTUS) Rule, where it stands with recent litigation and executive action, regulations. NEW WOTUS Rule was pre-published on 12/11 by EPA and is expected to be published in the Federal Register in January for 60 day comment period. The new regulation changes the categories of waters that covered under the jurisdiction of the federal government under the Clean Water Act and associated regulations from what was covered under the 2015 Obama-era WOTUS Rule.
  • Federal Jurisdiction over Groundwater under the Clean Water Act: Two cases regarding whether a discharge permit (NPDES permit) is required for discharges made to groundwater that have a “direct hydrological connection” to surface water are pending petition to the U.S. Supreme Court –
    • Kinder Morgan Energy Partners, L.P. v. Upstate Forever (4^th Circuit)
    • County of Maui, Hawaii v. Hawaii Wildlife Fund (9^th Circuit)
  • Federal USDOT’s New NEPA and Section 4(f) Regulations for Highway, Transit and Rail Projects:
    • Congress has sought to improve and expedite environmental reviews for transportation projects by enacting a series of reforms in recent legislation, including the laws known as MAP-21 (2012) and the FAST Act (2015). Those reforms affect compliance with the National Environmental Policy Act and Section 4(f) of the U.S. Department of Transportation Act, as well as the environmental review process established in 23 USC 139.
    • The responsibility for implementing those reforms falls primarily on three USDOT agencies: the Federal Highway Administration, the Federal Transit Administration and the Federal Railroad Administration. In their recent rulemaking, those three agencies have jointly updated and adopted two sets of regulations: 23 CFR Part 771, which governs NEPA process, and 23 CFR 774, which governs Section 4(f) compliance. The final rules were issued on October 29, 2018, and took effect on November 28, 2018.

Takings /Eminent Domain

• Provide explanation of Wisconsin law and how it affects projects (e.g. Foxconn)
• Recent Wisconsin Cases
  • NORTH MAYFAIR 1 LLC v. WISCONSIN DEPARTMENT OF TRANSPORTATION, 2018 WI App 21 – Wis: Court of Appeals, 1st Dist. 2018 (Zoo Interchange project affected property – claimed diminished property value due to lost commercial access)
  • GOEMAN v. WISCONSIN DEPARTMENT OF TRANSPORTATION, 2018 WI App 28 – Wis: Court of Appeals, 4th Dist. 2018 (Eminent Domain case – claimed WisDOT did not provide full value for property taken in eminent domain and circuit court decision erred on several issues: (1) his testimony on the value of the property that was taken through eminent domain; (2) the DOT’s pre-condemnation appraisal of the property; (3) the DOT’s certification of value; and (4) evidence as to the value of improvements made to a part of the property that lay within a pre-existing right-of-way.)
  • THE LAMAR COMPANY, LLC v. DOT, Court of Appeals, District IV, 12/20/2018 – The court of appeals upheld a lower court decision denying litigation expenses (attorney fees and costs) to a billboard company whose signs were taken for a WisDOT project.
  • AAMAANS PROPERTIES, INC. v. DOT, Court of Appeals, District IV, 12/26/2018 – The circuit court concluded that DOT did not take any of Aamaans’s real property, which consisted of a convenience store, gas pumps, and a McDonalds, when the DOT relocated Hwy 26 in Rock County and the service station no longer had direct access to the divided Hwy 26 (freeway access was now over 1 mile north at the nearest interchange), and that Aamaans’s inverse condemnation claim must therefore fail.

Other Recent Transportation-Related Court Decisions of Interest/Importance

• Highway J Citizens Group v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Court of Appeals, 7th Circuit 2018 (Whether Categorical Exclusion was allowable or whether the DOT was required to prepare a full Environmental Impact Statement or Environmental Assessment for upcoming STH 164 construction project north of Waukesha).
• WAUKESHA COUNTY ENVIRONMENTAL ACTION LEAGUE v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Dist. Court, ED Wisconsin 2018 (Federal court dismissed a challenge to the West Waukesha Bypass Project’s approval)
• DeCOSTER v. WAUSHARA COUNTY HIGHWAY DEPARTMENT, U.S. 7^th Circuit, 11/15/2018, Case No. No. 18-2387 (Plaintiff sought compensation for litigation costs and expenses, including attorney’s fees, incurred in connection with an alleged taking of his property by the County. DeCoster asserts his claim for compensation under the Uniform Relocation Assistance, Acquisition and Real Property Policies Act of 1970 (the “URA”))
• HWY 23 Case update: Environmental Assessment approved 10/23/2018 https://fox11online.com/news/local/dot-hwy-23-expansion-a-go –

(Planned expansion of Hwy. 23 between Fond du Lac and Sheboygan are back on after a new environmental study was finished. The state Department of Transportation has been planning to expand 19.1 miles of the highway to four lanes and improve some intersections in the stretch. ROD was recently released, which was recently approved by the DOT and Federal Highway Administration signed off on the new review, WIS 23 will also be designated as an expressway) Case was challenged in 2017 (1000 FRIENDS OF WI INC. v. US Dept. of Transp., 860 F. 3d 480 – Court of Appeals, 7th Circuit 2017, challenging Environmental Impact Statement and alternatives analysis).