allowing the suit back so that m t a can strengthen and widen bridges and roadways in impacted areas to accommodate rail cars along the chosen row through the purple line between new carrollton and bethesda maryland clear demonstration rebutting the presumption that there is a way to fill the overall project purpose without degrading the us waters or wetlands but the poor granted the permit for a real based system despite you can't come into the last moment they should have done the bus alternative yet not have a developed plan how do you answer that statement of judd gregg our member your honor we feel that we did adequately bring who pointed the way with is transportation project to perty is showing that upgraded bus service along the chosen route was the way to go he ended pellon fitzgerald did this well enough to alert the corps of its positions in contentions sufficiently if i may quote from the public citizen's case to allow the agency to give the issue meaningful consideration we feel that no one rigorously applying the for  one guideline standard could fail to understand that our comments squarely raised to us in road construction related lead issues so as to enable its proper resolution with agency expert that that in or of view is for as ordinary citizens concerned about environmental impact of a project need to go in the public comment period they are not make mr brown wants you facing an uphill battle because the previous studies had shown that the bus stops and were not going to be advancing the purpose of creating a more efficient transportation route the bus options that had been  examined had actually some very slow transit times had they not so you're on here it's shown that you could do better rather than simply raise the idea of a bus stops one has to distinguish between a bus option where there is no improvement to the route way and guideway and one where there is where there is very specific improvements such as a justice such as exclusive guide ways and and and shared and shared use lanes which is of which is exactly what the b or t or bus rapid transit option provides what  presented to the core was no information on the practicability of meeting the goal of expedited trip mass transit service with b r t except as twenty three dollars environmentally but that does not excuse the m t a from the obligation to study the practicability of an of a bus rapid transit option that has either zero or minimal impact on us waters and wetlands were not claiming that the corps had an open ended obligation to consider variety of b r t configurations in light of that the the b r t options open to consider in the need for a process but given the presumption under the search informal for being one guidelines that has to be rebutted we feel it was incumbent upon him in the court to examine at least one plausible b r t option configuration and not this honor i'd just don't think under the circumstances of the obligation of on the poor to pay to insist on a clear demonstration that there is no better less environmentally damaging practical alternative that it was that it was anything like rocket science for the poor to figure out well if these if the main problem with the so so mr brown are you it sounds i think i'm understanding your point to be that it's easy enough thing to do but you know we're not we're we're we're judges most of us are real good environmental scientists and we are law what's presented to us but are you are you suggest in the court should have come up with an alternative on its own and then it and then yes assessed or had the parties assess that i mean it doesn't there have to  respects your correct the government relies prominently on the hillsdale case in which there was a railroad that wanted to wanted to build a real truck terminal near its real line and said that was enough because all of the suggestions that were brought to the it the attention of the of the core by the opponents were evaluated in this case we told the court we told the core in that public comment period that they could use upgraded bus up graded bus service without degrading the u s waters and the fact is that in instead of the core actually considering that possibility that we raised in the public comment period it was it was simply ignored in the of in the record memo that the poor that alternative that avoided degrading the waters of the us because the new process was not sensitive to the requirements under the clean water act because the corps was not either included as a cooperating agency or an agency that was given meaningful input in the or in the selection of process the ease of choices for route selection it was it was left to the last minute and as a result  it was up to it was up to the to my clients in the public comment period to point out that none of these old turner is there had been presented to us was it was presented with any due sensitivity to the obligation to minimize or it entirely of possible impacts to the us waters so we feel that that we adequately presented an alternative to the corps and that was that it was simply ignored if the corps if the corps in its record memo had said we've looked at this possibility and find that it's impractical because it doesn't meet the overall project purpose that would be one thing but but to simply ignore it is in our view arbitrary capricious and the actual evidence that was in the case with regard to comparison  travel times for which is the critical factor in evaluating the practicability of this project you would see that the end in troubled times for the high investment b r t and the actual chosen lead were the same fifty nine minutes and you would also see that looking at thirteen different segments along the route from new carrollton to bethesda in nine of those thirteen segments the travel time in the relatively small proportion of this sixteen point two mile rail line by a avoiding construction in those particular is that doing all of the  outside of that area that is that is all that we're saying is flawed with this project that that that obvious what we regard as an obvious practicable alternative was not was not been that has been considered in the need for process is sufficient and this particular option doesn't doesn't doesn't do any better job of lessening impact on the waters or doesn't do any better job of lessening transportation but that analyst is simply wasn't done and then we see they get two or so that that particular analysis can be done damaging bus based alternative would not be practicable in meeting the goal of expediting mass transit service in the chosen order and the core fail to fulfill its judy to insist on such a clear demonstration from  before the end before the agency the project's minor impacts and the regulatory framework here the plaintiffs can identify no reason to overturn the district court's well reasoned decision i'd like to begin st with the opponents assertion that the agency failed to consider alternatives that were raised with any particular already in plaintiff's comments the only comments that were that mentioned  specific alternatives mentioned alternatives that were in considered in the course analysis so for example mr lee sees comments mentioned that transportation systems management alternative and the low investment us rapid transit alternative now the court didn't dismiss the bus in the bus rapid transit alternative on the grounds that it was impractical the agency did explain that it had some concerns about how well those alternatives would need to project our because ultimately they resulted in a much longer run times from end to end my relatives but ultimately decided not to select any bus rapid transit alternative as the least environmentally damaging alternative alice's but what extent is the or we're wired to do well it's other words something an agency has already done lost something else depending on what the comments are that are being received by the i have a few answers the st is that the court did not leave these comments unanswered it collected comments from the public and submitted them to the state of maryland which responded provided terms of the court's decision to use that record that was compiled by the federal transit administration that was entirely reasonable it's anticipated in the agency's regulations and forty c f r to thirty permit analysis and that me in particular sense here because the federal transit administration is the one that has the most expertise when it comes to deciding how to plan and develop these projects  that focused specifically on transit and development of alternatives for that purpose the record shows that even though the corps wasn't formally designated a cooperating agency during the need to review it was very much involved were very much up to date and they identified all of the wetlands and waterways that would be affected so by the time this permit application reached the corps the federal transit administration had already completed a very detailed review that not only considered a variety of different project alternatives but was also developed with an eye towards avoiding and mitigating project impacts to to wetlands and waterways and also the corps didn't simply rubber stamp that analysis  you're tional information from maryland's permit application which has and has maps identifying all of the affected waterways it worked with maryland during its off preparation of that report to further reduce alternatives selection of the least environmentally damaging alternative or practicable alternative and as i mentioned it requested responses from maryland they were aimed to address the comments the agencies have received about concerns in this particular project and one other reason why this agency is analysis is reasonable this not only is the fact that it was relying on a very detailed comprehensive record but because the project impacts are so degree of analysis should be tailored to the degree of impact so it's possible that if a project has significant impacts that weren't discussed and anybody analysis the agency would do more to collect information to ensure that it really was permitting the least environmentally damaging practical alternative but here given the analysis that the federal translate ministration had already completed with the corps assistance and the the minor impacts overall over the sixteen mile route from a th reasonable for the agency to decide that it didn't need to go and search for and create additional alternatives out in the numbers single some when you're referring to the wetlands the fact is you're talking about the half acre roughly three underscore that when it's completing this sort of analysis and there are impacts to special aquatic sites like wetlands it should look st and foremost impacts to those sites and here the selected alternative has the few designed to to address those impacts overall i ultimately am coming back to the discussion we had at the beginning it's the courts position that although it does bear the responsibility to ensure that it's complying with the regulations and identifying the least environmentally damaging practicable alternative if a party is concerned about the agency's analysis and has been given an opportunity to weigh in as the opponents for here it should describe in detail the exactly what they have in mind for the court you consider now they do mention perhaps avoiding bridgework or or minimizing bridge were or minimizing road widening but the record explains that the bridges are included in this project to avoid impacts to streams this is a project that runs east west and there are stream resources running north and south and so it's hard to avoid all those impact all together and these bridges are very important ways here to further mitigate or to avoid them to the extent the agency can and in terms of road widening widening in the bus rapid transit alternative road widening is an important part of that alternative because the bus rapid transit alternatives anticipate that road widening will allow the creation of special lanes for busses and special turn lanes and so it's it's hard to envision a bus rapid transit alternative that doesn't include does he chairs i'm happy to answer further questions that the court might have but i i would invite the court to look at the maps that are in the record that show where these impacts are that would be the joint appendix pages ninety one to ninety seven and what you'll see there is d spread out over those at the far eastern end of the project it's actually being built st being affected for storm water retention the smallest wetland area that is allowed under if that is that is permitted and this occur a large portion of those impacts occur in the context of existing streets because for the most part this project  transit line itself or run on surface streets similar to what a bus would do but except it's on a guideway designated way so that so that the the streams the stream impacts here when you when you look at there that the record in with the analysis is these are not these areas but these are not overly productive streams there are short stretches many of them are still in  existing culverts and in some places they don't exist in culverts and we're actually improving the condition of of of that water that water flowing water quality by keeping it covered is a sense but many of s the streams in question the to the to the to the point of putting together an alternative that is is a point that's billy d called hybrid in their in their in their brief when you look at what their comments are that hybrid analogy that hybrid alternative doesn't exist when you look at the comments that were submitted to the core they're advocating for the transpacific transportation systems management alternative which is enhancing buses doing some street widening making so many other other traffic engineering types of changes or at the low investment bus rapid transit alternative which the core and both of those alternatives the poor did consider they're included in the they analyzed them in their decision imo they looked at the possible  impacts for the transpacific transportation systems management alternatives they determined that wasn't going to be the projects purpose and need which makes that alternative not practical for the low investment  that actually had more of a wetland impact than the selected alternatives and they abided by fight a large problem well we're dealing with small impacts to begin with but the bus rapid transit weapons impact was twice having expertise the i would i would point the court to the th circuit decision in the who's hoosier environmental council versus core case which which addressed this question head on and in fact that in a decision written by judge poe's he basically said that with the with the planes as we're asking for and then they are also asking for you know you should have looked at different alternatives or a hybrid alternative would judge posner said is that are asking for is for the weapons tail to be waving the transportation dog and he went on to say that in order to do this the court would have to bulk up on its staff with experts on highway design construction and transportation very general way to respond to the public comments it did not specifically ask m t a why our comments should not give rise to any doubt that there was a no available lepas sapir or to the one a an m t a did respond but those responses although there were in the record are not mentioned or relied upon by the coup or in the record memo supporting the permit it would be nothing more than improper judicial guesswork to ponder whether and to what extent those responses played any role in the decision counsel also said that the quote was very much involved in the in the route selection process but you will see on pages fifteen to nineteen of our reply brief that we looked at everything in the record that in there shows the corps involvement in the route selection process early on and found that their participation was was almost in consequential to the point that they made one suggestion in one specific location and nothing else  council also refers to mitigation efforts made with regard to the to the chosen alternative those those mitigation efforts are legally irrelevant to the adequacy of of the lead the determination council also argues that the project impacts are small so small that it justifies no further examination of the alternatives in fact you will find nothing in the record memo to suggest that that the course felt that it was in any way relaxed relaxing it's never to look at project alternatives byte by byte the conclusion that the and that the environmental impacts were small and we don't agree with that it in any way council also said that you can really it would be difficult to conceive of b r t without the guideway features  there would be environmental impact we believe that a very strong case could be made that there would be and there would be so few areas were there would have to be an accommodation  option that was sensitive to avoiding construction in those sensitive areas and and did everything possible for enhanced b r t outside of those there are still that that is not that is not something that that it would have been beyond the expertise of the m t a to present in order to if it felt it was impractical or  by way of response to our public comments because our public comments quite clearly raised the problem in sufficient detail to put the agency on notice and it and it certainly is not the the  obligation of individuals in the in the community who are simply concerned about about environmental impacts to design and present at the very beginning of the review process in the public comment period and it's their only opportunity to say anything some kind of complete engineer designed alternative we put the government on notice that there was a better way to do this and they simply ignored it and and let the project go through on the on the blith assumption that everything that needed to be considered was considered in the need for a process that pointedly scooted input and cooperation from the core on the on the critical c w a permit requirements which in contrast to the neighbor requirements imposed some real substantive requirements that have to be met so for all those reasons are your honour's we feel that the permits should be vacated and sent back for to the drawing board for a much better explanation perhaps the the kind of  explanation that if you heard from mr furlow might well justify the same conclusion again but it's not in the record it's not it's not in the decision it's not in the rationale of the agency but what you have instead here in this