US. Deportment 1200 New Jersey Ave., SE 

ofTronsportotia, Washington, D.C. 20590 

Federal Highway 

Administration 

APR 12 2017 

In Reply Refer To: HCR-20 

DOT # 2017-0095 

Shailen P. Bhatt 

Executive Director 

Colorado Department ofTransportation 

4201 E. Arkansas Avenue 

Denver, Colorado 80222 

Subject: Letter of Finding (LOF) DOT 2017-0095 

Dear and Mr. Bhatt: 

The Federal Highway Administration (FHW A) Office ofCivil Rights (HCR) issues the 

following Letter of Finding (LOF) summarizing its investigation ofthe above referenced 

complaint. The complaint was filed pursuant to Title VI of the Civil Rights Act of 1964 (Title 

VI) against the Colorado Department ofTransportation (hereinafter Respondent) by EarthJustice 

on behalf of the residents of the Globeville, Elyria, and Swansea neighborhoods ofDenver 

(Complainant). 

Based on the available data and information, FHW A finds that there is insufficient evidence that 

the Project, itself.- and the Respondent's advancement ofthe Project when it approved the 2017-

2020 STIP- will create adverse, disparate impacts. FHWA finds, however, that even ifthe 

selection ofthe preferred alternative would result in adverse, disparate impacts, the Respondent 

has provided a substantial legitimate justification for its actions and shown that a less 

discriminatory alternative has not been identified. 

I. Procedural History 

On November 15, 2016, , a Hispanic resident ofthe Elyria-Swansea 

neighborhood in Denver, Colorado (Complainant), filed a complaint against the Colorado 
Department ofTransportation (Respondent or CDOT) with U.S. Department ofTransportation 

(USDOT) and the FHWA. The Complainant alleges the Respondent discriminated against the 

Hispanic residents ofthe Elyria-Swansea neighborhoods in Denver in violation ofTitle VI and 

the USDOT Title VI regulations (collectively Title VI). The complaint was timely filed during 

the 180-day period following the alleged discriminatory act, the signing ofthe Statewide 

Transportation Improvement Program (STIP) dated May 19, 20 16. 1 On December 6, 2016, 

FHWA accepted the complaint for investigation. Complainant is Hispanic and a resident ofthe 

minority community on whose behalfshe filed. All other grounds for filing a Title VI complaint 

have been met and Respondent does not dispute the Complainant's standing in this matter. 

II. Factual Background 

a. History and Current Status of the Elyria-Swansea Neighborhoods 

According to the City ofDenver, Elyria and Swansea were founded and platted in 1870 and 

1881, respectively, as two separate settlements near Denver's growing industrial and railroad 

industries.2 They were consolidated into Denver in 1902, and are today considered part ofthe 

same statistical neighborhood even though many residents still consider the two neighborhoods 

to be distinct. The area is surrounded by railroads, industrial facilities, and the South Platte 

River. The neighborhood remains highly industrial today and only 16% ofElyria-Swansea is 

made up ofresidences, parks, recreation facilities, and schools.3 The towns grew around the 

Kansas Pacific and Union Pacific railroads and the Globe smelter, established in 1886. The 

smelter processed the gold, silver, copper, and lead delivered from Colorado's mountain mining 

communities. The smelter drew immigrants from all over the globe - hence its name. Polish, 

Slovenian, Russian Croatian, Serbian, Czechs, and Volga Germans were all recruited to come 

work the dangerous jobs at the smelter and at the adjoining rail yards. Later, 

Hispanic families can1e to work in industries such as the meatpacking operations that came 

afterward.4 

After two decades ofplanning and design engineering, Interstate 70 was constructed directly 

through the Elyria-Swansea neighborhoods in 1964. The freeway is an e levated highway viaduct 

that runs from Colorado to Brighton Blvd. Some residents opposed the project based on the 

contention that the viaduct would be a significant visual detraction and would decrease 

neighborhood property values.5 

1 Statewide Transportation Improvement Program Fiscal Years 2017 - 2020, Colorado Department of 

Transportation, https://www.codot.gov/business/budget/documents/draft-fy20 I 7-fy2020-stip. 2 Denver City Council, Elyria and Swansea Neighborhoods Plans, p. 14 (Febniary 23, 2015), 

https://www.denvergov.org/content/dam/denvergov/Portals/646/documents/planning/Plans/Elyri 

a_Swansea_Neighborhood_Plan.pdf. 3 Id. at 15. 4 Gretchen Armijo & Gene C. Hook, Denver Dep't of Envt'I Health, How Neighborhood 

Planning Affects Health in Globeville & Elyria Swansea, p. 12 (Sept.2014), 

https:/ /www.den vergov .org/conten t/ dam/denvergov/Porta ls/7 46/doc u men ts/HIA/HIA %20Comp 

osite%20Report_9-18-I 4.pdf. 

5 Denver City Council, Elyria and Swansea Neighborhoods Plans, p. 16 (February 23, 2015), 

https://www.denvergov.org/content/dam/denvergov/Portals/646/documents/planning/Plans/Elyri 

a_Swansea_Neighborhood_Plan.pdf. 

2 
Some ofthe areas near the Elyria-Swansea neighborhoods have been found to be contaminated 

with toxic materials. Beginning as early as 1870, three smelting plants, the Omaha-Grant, Argo, 

and Globe operated for varying lengths oftime, and refined metals including gold, silver, copper, 

lead, and zinc. As a result ofthese activities, the soils in some areas ofthe neighborhoods 

required soil remediation (or cleanup). The sections ofthose cleanup projects that are in 

residential areas have largely been completed. 6 . 

b. Demographic Profile & Affected Communities 

Title VI requires that Recipients collect and analyze demographic data to ensure their !',rograms 

and activities do not create a disparate impact based on race, color, or national origin. For 

construction projects, Recipients must determine the demographics for a reasonable project area 

that encompasses direct and indirect effects. The Respondent identified the demographic 

breakdown ofthe census tracts and block groups associated with the "study area," which 

constitutes an area likely to realize direct and indirect impacts from the Project.8 The study area 

included the Elyria and Swansea neighborhoods, and the most current U.S. Census data from the 

American Community Survey for the study area neighborhoods is shown in Figure 1.9 

Figure 1 

Hispanic Population in Study Area Neigl1borhoods 

~e!ghmirlijlpil 1:'otal 

Pooulation 

Not Hispanic: or 

Latino 

BlsP•ni~,or 

Latino: 

Pe~eni.gf H1$panlc or 

Latino 

Globeville 3551 1373 2178 61.33% 

Elyria and 

Swansea 6676 1142 5534 82.89% 

Northeast Park 

Hill 9086 6363 2723 29.97% 

Stapleton 17,626 15,527 2099 11.91% 

Montbello 34,483 13,286 20,897 60.60% 

Aurora 7380 3998 3382 45.83% 

Gateway 7545 4117 3428 45.43% 

The Elyria-Swansea neighborhoods have the highest percentage of Hispanic persons for the 

study area. The total Hispanic population for the Denver Metropolitan Statistical Area, which 

includes the study area, is 615,396 or 29.46%, which indicates that all neighborhoods in the 

study area except Stapleton have higher percentages ofHispanic persons than the City ofDenver 

as a whole. 10 

6 Gretchen Armijo & Gene C. Hook, Denver Dep't ofEnvt'I Health, How Neighborhood 

Planning Affects Health in Globeville & Elyria Swansea, p. 33 (Sept. 2014), 

https://www.denvergov.org/content/dam/denvergov/Portals/746/documents/HIA/HIA %20Comp 

osite%20Report 9-18-14.pdf. 7 - 23 C.F.R. §200.9(b)(4). 8 I-70 East Supplemental Draft Environmental Impact Statement - Environmental Justice Technical Report, 

Attachment F (adopted by Respondent in the FEIS), August 2014, p. 5, http://www.i-70east.com/SDEIS/chapters/I70EastSDEIS _ Vol2AttF _ Enviro-Justice-Tech-Report.pdf. 9 Source: Source: U.S. Census Bureau, 2011-2015 American Community Survey 5-Year Estimates. 10 Id. 

3 
In addition, both the U.S Census data and interviewees from the FHWA's site visit show that a 

large number ofpersons with Limited English Proficiency (LEP) reside in the Elyria-Swansea 

neighborhoods, as well as the study area as a whole. Title VI prohibits discrimination based on 

national origin, which therefore requires that Recipients take reasonable steps to provide 

meaningful access so that LEP individuals can effectively engage in federally assisted programs 

and activities. 11 The U.S. Department ofJustice defines LEP individuals as those "who do not 

speak English as their primary language and who .have a limited ability to read, write, speak, or 

understand English."12 

For the Project, the Respondent assessed the language access needs ofpersons in the study area 

and found the Elyria-Swansea areas to have the highest need both compared to the study area and 

compared to the surrounding Denver area, as shown in Figure 2. 

Figure 2 

Limited English Proficiency Needs for the Project 

Geographic unit Total adult 

population 

Primary language groups of persons 

who speak English less than very well 

Spanish Other-lndo 

European 

Asian/ 

Pacific Other 

# % # % # % # % 

Denver MSA 1,844,006 129,502 7.0 15,958 0.9 26,766 1.5 7,755 0.4 

Denver County 452,947 50,223 1'1.1 3,906 0.9 5,828 1.3 2,645 0.6 

Adams County 303,605 38,106 12.6 2,403 0.8 5,160 1.7 455 0.1 

Globeville 2,633 794 30.2 0 0.0 9 0.3 0 0.0 

Elyria and Swansea 4,260 1,739 40.8 0 0.0 11 0.3 0 0.0 

Northeast Park Hill 5,469 675 12.3 0 0.0 7 0.1 30 0.5 

Stapleton 8,837 288 3.3 43 0.5 71 0.8 63 0.7 

Montbello 18,675 5,970 32.0 48 0.3 346 1.9 55 0.3 

Aurora 4,949 975 19.7 31 0.6 328 6.6 45 0.9 

Gateway 4,434 1,015 22.9 0 00 112 2.5 104 2.3 

Study Area 49,257 11,456 23.3 122 0.2 884 1.8 297 0.6 

Here, 40.8% ofthe combined Elyria-Swansea populations were identified as Spanish-speaking 

persons for their primary language. 

13 All neighborhoods in the study area, except Stapleton, 

feature higher percentages of LEP persons than the Denver MSA. 

c. The Complainant 

11 Lau v. Nichols, 414 U.S. 563 ( 1974). 12 Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin 

Discrimination Affecting Limited English Proficient Persons, 67 FR 41459, June 18, 2002. 13 1-70 East Supplemental Draft Environmental Impact Statement - Environmental Justice Technical Report, 

Attachment F (adopted by Respondent in the FEIS), August 20 14, p. 17, http://www.i-70east.com/SDEIS/chapters/l70EastSDElS Vol2AttF Enviro-Justice-Tech-Report.pdf. 

4 
The named Complainant is , who is Hispanic/Latino and member ofthe Cross 

Community Coalition (CCC). 14 The Cross Community Coalition is a Registered Neighborhood 

Organization ofSwansea and Elyria, which are neighborhoods of north Denver adjacent to the 

existing I-70 highway. The Complainant lives approximately three blocks south ofthe current I70 in the area ofthe Project, and she believes the Project will cause an adverse, disparate impact 

to her, her family, and other similarly-situated individuals in the Project area. Specifically, she 

alleges that she suffers from health problems that include asthma, which she alleges subsided 

when she left the state of Colorado for several yearly periods oftime and that the asthma 

returned when she returned to reside in the Elyria-Swansea neighborhood. For these reasons, the 

Complainant alleges that air pollution from I-70 has caused her health problems and that the 

Respondent's preferred alternative, which will add additional lanes to I-70, will exacerbate her 

condition. 

The named Complainant is represented by counsel through EarthJustice, a non-profit public 

interest law firm that advocates for the protection ofnatural spaces and wildlife, healthy 

communities, and clean energy and a healthy climate. 15 

In addition, the complaint was joined by the Colorado Latino Forum, the Cross Community 

Coalition, and the Elyria and Swansea Neighborhood Association ("ESNA"), all ofwhom 

oppose the Respondent's selection ofthe preferred alternative. 

d. Project History 

The I-70 East Project (Project)16 concerns an 11-plus mile stretch ofthe 1-70 corridor with a 

western boundary at the 1-25/1-70 interchange to an eastern limit ofTower Road, beyond the 1-

225 interchange. The project dates to 2003 when the Respondent first conducted a study ofthe 

highway and transit needs ofthe entire Denver I-70 corridor. In 2006, the Respondent divided 

the Project, believing the transit component required a discreet, separate study. The Draft 

Environmental Impact Statement (DEIS) for the highway portion ofthe Project was published in 

2008, though the Respondent did not advance any ofthe proposed alternatives due to lack of 

support from the public and other project stakeholders. 17 A depiction ofthe project area can be 

found in Figure 3. 

14 Declaration , May 15, 20 I6. 

15 Our Story: True and lasting change happens when the power of the law is on your side, EanbJustice About Page, 

accessed 2/3/17, http://earthjustice.org/about. 16 The I-70 East Project was renamed "Central 70" in the draft COOT 2017-2020 Statewide Transportation 

Improvement Program Plan. This LOF will refer to the Project as "1-70 East" to be congruous with the Project 

environmental and other development documents for clarity. 17 1-70 East Final Environmental Impact Statement and Section 4(f) Evaluation, ES-3, Colorado Department of 

Transportation, January 2016, http://www. i-70east.com/FinalEIS/I-70EastEIS _ FEIS-Volume I .pdf. 

5 
Figure 3 

StudyArea and Project Limits 

561h Ave 

Montbello 

Slaplelon 

•El ---=~---.....---.....1._ _ __J 

~ Denv Project Limits er X <i5 £ en .;; ,f vi 0 ;;; <i5 I 'C <i5 en !B ~ .!!I ~ g "' C: 

X C: c:: "0 0 ::, i f j j 0 :e ~ i f ::;; 0 ~ £ 

\ 

47tt1Avu 

Northeast 

Park HIii 

MLI{ Blvd Aurora 

.__ _.I Project area .___....,I Neighborhood boundaries Q ,.~ -~ Freight railroads 

Respondent assembled the Preferred Alternative Collaborative Team (PACT), a group 

representing federal, state and local govermnents, as well as representatives from community 

groups and neighborhood associations. While agreeing that the I-70 alignment should remain 

unaltered, Respondent and PACT members failed to reach a consensus for a preferred 

alternative.

18 Reexamining previously eliminated options, Respondent developed a new 

alternative with corresponding analysis, which it published in a Supplemental DEIS in 2014. 

After additional public involvement, Respondent published the Final Environmental Impact 

Statement (FEIS) in January 2016, identifying a "no action" alternative, a managed lane 

alternative, a revised viaduct alternative and a modified partially covered lowered alternative. In 

addition, the FEIS addressed two other alternatives that followed alignments different from that 

ofI-70, but concluded that neither addressed the purpose and need for the project. 

As a Recipient of Federal financial assistance from the FHW A and FTA, Colorado must develop 

a STIP for selecting projects for all areas ofthe state. This STIP is a four-year, fiscally 

constrained, and prioritized set oftransportation projects compiled from local and regional plans. 

Colorado selects STIP projects through an annual development process. In May 2016, the 

Respondent signed its latest STIP. Projects included in the STIP must be both fiscally 

,s Id. 

6 
constrained and consistent with longer range planning documents, in this case the MPO's 25-

year Regional Transportation Plan. 

e. Project Purpose and Need 

The Project need originated with the area's vision in long range transportation plans. In its 2035 

Regional Transportation Plan, 

19 the MPO's first policy was ensuring that "existing and future 

transportation facilities are maintained and preserved," followed by increasing transit service and 

providing sustainable, safe, efficient roadway systems for cars, buses and trucks. The 2040 

Plan20 maintains these policies, listing the following strategies: 

• Maintain and enhance a regional roadway system comprised of existing, 

expanded, or new freeways, major regional ruterials and principal arterials that 

provide regional and statewide connectivity for the movement ofpeople and 

goods; 

• Expand the capacity of existing regional roadways in the most critically congested 

corridors and at key traffic bottlenecks, after considering demand management 

strategies and operational efficiencies; 

• Implement multimodal facilities and system management improvements when 

constructing new or retrofitting existing major travel corridors; 

• Support local streets and roadways that provide vehicular, local transit, bicycle, 

and pedestrian access to and from residential and non-residential areas throughout 

the region; 

• Prioritize roadway capacity funds for projects that address gaps in the existing 

roadway system and eliminate bottlenecks consistent with findings ofthe 

congestion management planning process; 

• Develop opportunities for implementing congestion pricing and other tolling 

techniques on existing freeways, and implement a tolling component (pricemanagement) on new freeway lane-addition projects, where feasible, with all 

impacted communities included in the tolling decision and surplus revenue 

directed to multimodal investment or system preservation; 

• Support legislation that would implement VMT-based fees, pay-as-you-drive 

insurance, and other pricing strategies that more directly and immediately reflect 

the cost ofvehicle travel to the user. 

The various environmental studies of I-70 East provide further detail and clarify the Project's 

purpose. Chapter 2 ofthe Final EIS describes a heavily congested roadway in deteriorating 

condition that nonetheless serves as a "key east-west transportation and freight corridor through 

19 2035 Metro Vision Regional Transportation Plan, Denver Regional Council ofGovernments (DRCOG), February 

16, 2011, https://drcog.org/sites/drcog/files/resources/2035%20MVRTP-20 I 0%20Update%20with%20App%202-

90 0.pdf. 2 2040 Fiscally Constrained Regional Transportation Plan, DRCOG, February I 8, 2015, 

https://drcog.org/sites/drcog/files/resources/2040%20Fiscally%20Constrained%20Regional%20Transportation%20P 

lan.pdf. 

7 
the American Midwest, Denver and Colorado's Rocky Mountains, and it is the primary access to 

[Denver International Airport]."21 Ofthe four project motivators including safety concerns, 

limited facility capacity, and increased travel demand, the Final EIS emphasized the current 

deficiency ofthe existing viaduct. Rehabilitation projects have improved the structural 

deficiency rating and extended the life ofthe viaduct, though Respondent estimates that nine 

structures along the corridor are beyond their anticipated lifespan and are either structurally 

deficient or functionally obsolete. The FEIS includes this photo22 from below the viaduct under 

46th A venue. 

In addition, the FEIS demand models forecast a 42% increase in population growth and 58% 

increase in employment through 2035, with continued housing and industrial development in the 

corridor, along with airport expansion and growth oftourist destinations.23 Respondent predicts 

that I-70 would not be able to satisfy the increase in travel demand, as it currently functions at or 

beyond design capacity. A depiction of the traffic demand model is shown in Figure 4. 

21 I-70 East Final Environmental Impact Statement and Section 4(f) Evaluation, 2-2, Colorado Department of 

Transportation, January 2016, http://www.i-70east.com/FinalE1S/I-70EastEIS FEIS-Volume I.pdf. 22 Undated photo, I-70 East Final Environmental Impact Statement and Section 4(f) Evaluation, ES-5, Colorado 

Department ofTransportation, January 2016, http://www.i-70east.com/FinalEIS/I-70EastEIS _FEIS-Volume I.pdf. 23 Id at 2-7. 

8 
Figure 4 

/-70 Travel Demand Model: "no action" vs. Existing 

70mns 

60111ns 

50mns QI

E I\Omns I= 

l? 30inns l4 

20 "'"' 

10 m.ns 

0rrrns ;;; IV .:,.

eo Q ~ 8 ~ 8 ~ 8 

I= i: f: ~ ?:: ?: 

Omns 

10mms 

20mins QI

E 

I= 30111113 -

<J' en ... a, 

8 8 g Q 

0 

?: ~ ?:: ~ ~ 

1 

40rnns ~ 

SOmms 

60mns 

70ni"ll3 

Westbound 1-70 

Eastbound 1-70 ... -

Free-Flow Speed -- No-Action- Existing -

Finally, the FEIS cites crash statistics that are over twice as high within the project area as found 

on other sections of 1-70, owing to inadequate acceleration/deceleration lane length; insufficient 

sight distance at ramps; lower than adequate ramp speeds; narrow shoulder widths; overly 

frequent interchange spacing prompting vehicle weaving; substandard drainage and other · 24 d fi • 

e ·1c1enc1es. 

f. Summary of Project Alternatives 

In selecting the preferred Partial Cover Lowered Alternative, the Respondent e liminated 

alternatives that it believed failed to meet project purpose and need. The first, a "no action" 

alternative studied the use ofthe existing I-70 facility with only those improvements already 

planned or programmed. The No Action alternative was intended to serve as a baseline but 

24 1-70 East Final Environmental Impact Statement and Section 4(f) Evaluation, 2-10, Colorado Department of 

Transportation, January 20 I 6, http://www.i-70east.com/FinalE1S/l-70EastEIS FEIS-Volume I .pdf. 

9 
nonetheless included options for adding capacity either to the north or south ofthe existing 

corridor, either with tolled or managed lanes. 

The second alterative that Respondent analyzed was a Revised Viaduct Alternative that would 

replace a section ofthe western existing facility with a new structure, adding one to two 

additional lanes through the eastern limit ofthe project, either through restriping or capacity 

improvements. As with the No Action Alternative, the Revised Viaduct included two expansion 

options, either to the north or south ofthe existing roadway with additional lanes. In addition, 

Respondent considered the revised viaduct for both a general lanes option and a managed lanes 

option. The Revised Viaduct Alternative would require a footprint of 197 feet, approximately 

twice the width ofthe existing facility. 

Figure 5 depicts the early elimination ofthe realignment alternatives in the Draft EIS to those 

considered in the Supplemental EIS. 

Figure 5 

Alternatives carried forwardfor study in Supplemental EIS 

2008 Draft EIS Alternatives Supplemental Draft EtS Alternatives 

J • 

r 

lM 3 E»mtG r~ i--- l -1 

New 

Revised Viaduct Partial Cover Lowered 

Alternative Alternative 

Now an option to 

Build Alternatives 

Managed Lanes Option 

The Partial Cover Lowered Alternative was advanced as the preferred alternative. This 

alternative removes the existing I-70 viaduct between Brighton Boulevard and Colorado 

Boulevard, lowering the highway below grade in this area. It adds additional lane(s) in each 

direction from Brighton Boulevard to Tower Road. It also adds capacity from 1-25 to Brighton 

Boulevard by restriping. This alternative includes a cover over the highway in the vicinity of 

Clayton Street and Columbine Street that is approximately, but not more than, 1,000 feet in 

length. As part ofthis alternative, 46th Avenue would be located on both the north and south 

sides ofthe highway. 46th Avenue would then be a two-way street between Josephine Street and 

Milwaukee Street on both sides ofthe highway and one way in the other locations. This 

alternative eliminates the portion of 46th Avenue north of1-70 between Columbine Street and 

Clayton Street to allow for a connection between the Swansea Elementary School and the 

highway cover. The preferred alternative would maintain access to and from I-70 at the Steele 

Street/Vasquez Boulevard interchange is maintained. A more detailed map ofthis alternative, 

along with a visualization ofthe cover can be found in the Appendix to this LOF. See Figure 6 

for a depiction ofthe preferred alternative. 

10 
Figure 6 

Overview ofPartial Cover Lowered A ltemative (Preferred) 

. . .:;; ~~ Q;, C: 

g 

c:,, ~ 

!a; ~ ::,..~ -5;

c-.: 

3-

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0 

<ii 0 

u u 

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.>< .;"' 0 b "' E "' i::: C ~ a; {ij 0 g 5 51; "' ,.,

> ;j E- ::: ~ .,;"' 8 Q -r ::> 0 <.>CO :r ~ u <,: ~ 

In addition to these alternatives, in the Final EIS the Respondent reexamined other alternatives 

that were not pursued after the Draft EIS in 2008. One proposal, a I-270/J-76 Reroute 

Alternative, which was preferred by the Complainant, proposed removing the Brighton Blvd. to 

Colorado Blvd. viaduct and realigning I-70 around Denver using the existing I-270 and I-76 

corridors (Reroute), as shown in Figw-e 7. The new 46th Avenue/48th Avenue would be 

converted to either a 4- or 6-lane arterial. 

Figure 7 

Map ofI-27011-75 Complainant Reroute Alternative 

0 

.c: 

co 

1-270/1-76 Reroute ) 

641h A·1e ii: 

56thAve 

~ 

Existing 1-70 

'0 

~ 

a, CJ) ;;; 05 .g 38lhAve vi OJ !!! ~ :;e

v5 

~ .8 ~ c ~ 1B <» 0 :, §:!. vi 8 0 :,: :E 0 

11 
Despite its earlier assessment that the alternative did not meet the purpose and need ofthe 

project, Respondent reconsidered the Reroute based upon public and stakeholder input and 

rejected it because: 

• It would increase use by highway users of 46th A venue (which currently runs parallel 

beneath the I-70 viaduct) rather than the mainline highway, introducing higher volumes 

oftraffic along with safety, accessibility and mobility issues in surrounding 

neighborhoods. 

• Th;resulting widening of46th Avenue even to six lanes would not alleviate projected 

traffic projections for 2035, considering the increased use offreight vehicles traveling to 

and from industry along 1-70. 

• It increased out of direction travel, particularly burdensome to the 35% of westbound 

traffic exiting onto south I-25. 

• It lacked multiple east-west travel choices for emergency providers. 

• The cost of 12 miles of major highway construction and reconstruction along the 

corridors was more than twice the that of other alternatives 

• It lacked stakeholder support due to impacts to existing and planned areas of economic 

growth. 

For example, the Respondent conducted a travel analysis using the Denver Regional Council of 

Governments (DRCOG) 2035 Regional Travel Demand Model, which simulated the reroute. 

From the study:25 

[T]he analysis shows that the traffic on the arterials west ofI-25 is reduced with 

the 1-270/1-76 reroute; however, this reduction results in major traffic increase in 

the arterials east ofl-25. The local street networks east ofI-25 do not have the 

capacity to hold the forecasted traffic volumes; therefore, the increase in the local 

street traffic will result in safety issues and major delays. 

The expected changes to traffic are shown in Figure 8. 

2

s Alternative Analysis Technical Report Addendum - 1-70 East Final Environmental Impact Statement, p. 4, 

January, 20 16, http://www.i-70east.com/FinalEIS/chapters/l-70EastFEIS Vol2AttC Alternative-Analysis.pdf. 

12 
Figure 8 

Visual ofExpected Change in Daily Traffic f or Six Lane Option Reroute 

....... 

•

<: 

I 

! 

...........1 \ 

) {/

~q . ..... 

.. 

j 

1 

Cbangt lo 20H 

Qajldr•lli< 

Rtduaion 

- "'°'tl!wn SO!I, 

- 2.511, to~ 

l~ to2S"' 

S9h 10ft 

- lO!l. tol.5% 

- 2.51' to~ 

- 11.ortthln~ 

- NIA 

The Respondent predicts the Reroute modeling shows an increase in out-of-direction travel, 

causing mobility issues. Of the traffic heading west on 1-70, approximately 50 percent continues 

past 1-25, staying on 1-70. The Reroute Alternative adds two miles of out-of-direction travel for 

these vehicles. Thirty-five percent ofthe traffic heading west on 1-70 exits to southbound 1-25. 

The Reroute adds four miles of out-of-direction travel for these vehicles resulting in additional 

travel times. Furthermore, traffic modeling indicates that the Reroute would lead to a significant 

increase in vehicles utilizing 46th A venue, significantly increasing congestion in Elyria-Swansea. 

According to the DRCOG model:

26 

The average daily traffic for both Reroute scenarios (4-lane and 6-lane 46th/48th 

Avenue), ranges from 30,000 to 60,000 (as 4-lane) and from 40,000 to 75,000 

vehicles a day (as 6-lane) in 2035, resulting in congested conditions. The 6-lane 

scenario processes higher volumes in comparison to the 4-lane scenario resulting 

in a reduction in the amount of additional traffic on other arterials in the traffic 

impact analysis area. The traffic volumes on 46th/48th Avenue in the re-route 

analysis are typically 4-6 times higher than the traffic volumes in the Partial 

Covered Lowered Alternative and IO to 15 times higher than on the levels on 46th 

Avenue in 2012. 

26 Alternative Analysis Technical Report Addendum - 1-70 East Final Environmenta l Impact Statement, p. 4, 

January, 20 16, http://www.i-70east.com/FinalEIS/chapters/1-70EastFEIS Vol2AttC Altemative-Analysis.pdf. 

13 
In addition, the Respondent notes that I-70 and I-270 serve as reliever routes when one highway 

or the other becomes congested or closed due to accidents. With the reroute, the redundancy of 

the highway network, which is important for emergency response in the area, is limited. If I-70 

was rerouted to combine with I-270, there would be no alternate highway connecting the Denver 

neighborhoods to the rest ofthe region. 

The Respondent finally states that, in addition to the safety and congestion concerns, keeping the 

current alignment was supported by the community:27 

The Preferred Alternative Collaborative Team (PACT), consisting of 

community, business, and stakeholder agency representatives, was initiated after 

the publication ofthe Draft EIS in·2008 to identify the preferred alternative for 

the project. Based on additional analysis and community input, the group 

reached a consensus to keep I-70 at its current location. The PACT determined 

that keeping 1-70 at its current location rather than rerouting or realigning it is the 

most beneficial to the surrounding communities, businesses, and the 

transportation system, because ofthe amount of traffic that would be on 46th 

Avenue if the highway was moved. 

The Respondent rejected a previously studied Realignment Alternative because it did not meet 

the purpose and need ofthe project. In fact, there were several realignments considered, shown 

in Figure 6, one using the current alignment of existing rail facilities, and two that prosed 

realigning either 1-70 westbound to the north ofthe existing 1-70 alignment, or 1-70 eastbound to 

the south following the alignment of Smith Road. 

Most ofthe Realignment Alternatives failed to pass first level screening due to unacceptable 

community impacts or requiring improvements to facilities that did not meet purpose and need. 

Similarly, other Realignment Alternatives were eliminated during comparative screening. The 

northern and southern realignments along existing city streets were also eliminated because both 

would require major highway construction through a high number ofexisting residential 

properties. Figure 9 depicts one ofthe realignment alternatives considered. 

27 Alternative Analysis Technical Report Addendum - I-70 East Final Environmental Impact Statement, p. 6, 

January, 2016. 

14 
Figure 9 

Map ofRealignment Alternatives 

Realignment Alternatives 

(Alternative 4 and Alternative 6) 

Existing1-70 

;; .:,,:. ffi 

u; u5 u5 u5 &! 

R iii

.£1 vi i§ ~ ::: "' ~ .2::- .c.., ~ -0 ta C"' 

0 ::, ::: ~ 0 :,. > <ti (IJ 

0 - -0 Cl :c ~ 0 t..>"' iii :i:: Q. a: -0 

I!! .2 -0 QJ co C: .0 t: E cu .::: ~ :: "' 

u < ~ 

Only the alternatives adjacent to the existing railway corridor were advanced among the Corridor 

Alternatives - one realigned using general purpose lanes and one realigned with tolled express 

lanes. Both were eliminated from further consideration based on lack of PACT and public 

support. 

In the 2016 Final EIS, Respondent concluded that the Partial Cover Lowered Alternative with 

managed lanes was preferred because it met project purpose and need, addressed concerns ofthe 

public and stakeholders, and had more community and local public agency support than any of 

the other alternatives. Respondent further proposed the cover design to protect and expand the 

Swansea Elementary School's current location and meet drainage requirements, and because it 

was considered more visually and aesthetically appealing. 

III. Issues Raised by Complainants 

The Complainant alleges that the Respondent's selection ofthe preferred project alternative, the 

Partial Cover Lowered Alternative, violates Title VI due to adverse and disparate impacts that 

are predominantly borne by the Hispanic populations in the Project area. Specifically, 

Complainants allege: 

1. Respondent's approval ofthe STIP, which allowed the Project to move forward, 

led to disparate, adverse impacts on the predominantly Hispanic residents of 

15 
Globeville and Elyria-Swansea, established minority neighborhoods divided by 

the construction ofl-70 beginning in 1953. 

2. Respondent's proposed mitigation strategies for the preferred alternative are 

insufficient to offset the disparate, adverse impacts to the Hispanic 

communities. 

3. Respondent's process for selecting the preferred a lternative lacked adequate 

consultation with Hispanic communities in the Project area. 

4. Even if Respondent can offer a substantial, legitimate justification for its 

selection ofthe preferred alternative, Respondent failed to adequately analyze a 

proposal to reroute I-70, which is a less discriminatory alternative that meets the 

Respondent's legitimate needs, but that will do so without the same level of 

disparate effect on a class protected by Title VI. 

IV. Legal Background 

a. Title VI 

Title VI prohibits discrimination on the basis ofrace, color, or national origin in programs and 

activities receiving Federal financial assistance. Specifically, Title VI provides that: 

[ n ]o person in the United States shaJI, on the ground ofrace, color, or 

national origin, be excluded from pa1ticipation in, be denied the benefits of, 

or be subjected to discrimination under any progran1 or activity receiving 

Federal financial assistance. 28 

The Civil Rights Restoration Act of 1987 clarified Title VJ congressional intent, ensuring that 

when an entity receives Federal financial assistance, all ofthat recipient's programs and 

activities fall under the jurisdiction ofTitle VI. This includes even those programs and activities 

that do not directly receive Federal financial assistance.29 

The U.S. Department ofJustice (DOJ), as the Federal government's coordinating agency for 

Title VI, implemented its Title VI program in 28 C.F.R. Part 42, which provides that the 

responsibility for enforcing Title VI rests with the federal agencies which extend financial 

assistance, such as the FHWA. The USDOT issued common Title VI regulations for all USDOT 

modes at 49 C.F.R. Part 21. When individuals file discrimination complaints under Title VI with 

regards to highways, the HCR will process the complaints. If HCR accepts the complaint, it will 

investigate and issue a LOF with potential findings and recommendations. Specific provisions 

regarding the investigation ofTitle VI compla ints are fow1d at 49 C.F.R. § 21.1 1. FHWA 

requires State Departments ofTransportation (State DOTs) to take specific steps in compliance 

with Title VI. These are enumerated at 23 C.F.R. § 200.9, and include submitting 

nondiscrimination assurances, developing policies and procedures, resolving identified areas of 

noncompliance and collecting demographic data on those impacted by its decision-making.

30 The 

28 42 U.S.C. § 2000d. 29 Civil Rights Restoration Act of 1987, P.L. 100-259 [S.557). 30 See 28 C.F.R. Part 42; 49 C.F.R. Part 2 1; 23 C.F.R. Part 200. 

16 
FHWA's complaint investigation procedures are contained in its Procedures Manual for 

Processing External Complaints of Discrimination.

31 

b. Discrimination Prohibited 

Discrimination under Title VI can be analyzed under two types of legal analysis: (1) disparate 

treatment and (2) disparate impact. Regarding disparate impact, the U.S. Supreme Court has held 

that agencies may create regulations to prohibit practices having a disparate impact on protected 

groups, even if the actions or practices are not intentionally discriminatory.32 The USDOT's Title 

VI implementing regulations state that a recipient "may not utilize criteria or methods of 

administration which have the effect ofsubjecting persons to discrimination because oftheir 

race, color, or national origin," 49 C.F.R. § 21.5(b)(2). FHWA's Title VI regulations similarly 

require Title VI compliance by recipients receiving Federal financial assistance from FHWA. 23 

C.F.R. Part 200. 

The first step in analyzing any disparate impact case is determining whether the recipient's 

criteria or method ofadministering its programs or activities adversely and disparately affect 

members of a protected class. In some cases federal agencies proceed directly to prelinlinary 

findings after this step. The elements of a Title VI disparate imf:act claim derive from the 

analysis of cases decided under Title VII disparate impact law. 3 To establish a prima facie case34 

of discrimination, the investigating agency must ascertain whether the recipient utilized: 

1. A specific, faciall y neutral policy or practice; 

2. That had a disproportionate impact on a protected group; and 

3. Whether the policy or practice likely caused the disproportionate impact. 

In a Title VI disparate impact analysis, a causal connection must be shown between the facially 

neutral policy or practice and the disproportionate and adverse impact on the protected group.35 

To demonstrate causation, evidence that "adequately captures" the impact of the project on 

similarly situated members ofprotected and non-protected groups must be shown, using an 

"appropriate measure. "36 

After a prima facie showing is made, the burden shifts to the respondent to demonstrate the 

existence of a "substantial legitimate justification" for the allegedly discriminatory practice. To 

prove a "substantial legitimate justification," the recipient must be able to show that the 

challenged policy was "necessary to meeting a goal that was legitimate, important, and integral 

31 Procedures Manual For Processing External Complaints ofDiscrimination, Federal Highway Administration, 

http://w,vw.fhwa.dot.gov/civilrights/programs/finalcomplaintmanual 11041 0.cfm 32 Guardians Ass 'n v. Civil Serv. Comm 'n, 463 U.S. 582. 582; Alexander v. Choate, 469 U.S. at 292-94; see Elston 

v. Talladega County Bd. ofEduc., 997 F.2d 1394, 1406 ( 11th Cir.), reh'g denied, 7 F.3d 242 ( 11th Cir. 1993). 33 New York Urban l eague v. New York, 71 F.3d 1031, I 036 (2d. Cir. 1995). 34 lan J' P. v. Riles, 793 F.2d 969, 982 (9th Cir. 1984); Elston, 997 F.2d 1394, 1407. 35 New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 69 (2d Cir. 2000). 36 New York Urban l eague v. New York, 71 F.3d I 031, I 037-38 (2d Cir. 1995). 

17 
to the [recipient's] institutional mission."37 The justification must bear a "manifest demonstrable 

relationship" to the challenged policy.38 

Ifthe recipient can make a showing of"substantial legitimate justification," the investigating 

agency must then focus on whether the complainant has identified "less discriminatory 

alternatives" that meet the recipient's legitimate needs, but that will do so without the same level 

ofdisparate effect on a class protected by Title VI.39 In a transportation context, courts have 

analyzed site selection alternatives, particularly where the recipient had already considered and 

rejected them, establishing a record.40 In cases involving site selection, courts have considered 

not only whether the construction was necessary to be~in with, but also whether the recipient can 

justify selection ofthe particular site over alternatives. 1 

c. Prior Discrimination and Site Selection 

First, the USDOT Title VI regulations provide that, where prior discriminatory practice or usage 

tends, on the grounds ofrace, color, or national origin to exclude individuals from participation 

in, to deny them the benefits of, or to subject them to discrimination in applicable programs and 

activities, recipients must take actions to remove or overcome the effects ofthe prior 

discriminatory practice or usage. 42 Even in the absence ofprior discriminatory practice or usage, 

recipients are expected to ensure no person is excluded from participation in or denied the 

benefits ofthe program or activity on the grounds ofrace, color, or national origin.43 

The regulations further provide that recipients may not make a selection ofa site or location ofa 

facility ifthe purpose ofthat selection, or its effect when made, is to exclude individuals from 

participation in, to deny them the benefits of, or to subject them to discrimination under any 

program or activity to which this rule applies, on the grounds ofrace, color, or national origin; or 

ifthe purpose is to, or its effect when made will, substantially impair the accomplishment ofthe 

objectives of Title VI.44 

d. Jurisdiction 

A recipient may mean any State, territory, possession, the District of Columbia, or Puerto Rico, 

or any political subdivision thereof, or instrumentality thereof, any public or private agency, 

37 Sandoval v. Hagan, 1 F.Supp. 2d 1234, 1278 (M.D. Ala. 1998), aff'd, I97 F.3d 484 (11th Cir. 1999), rev'd on 

other grounds, Alexander v. Sandoval, 532 U.S. 275 (2001) (quoting Elston, 997 F.2d at 1413). 38 Georgia State Conference ofBranches ofNAACP v. Georgia, 115 F.2d. 1403, 1418 (l Ith Cir. 1985); See, e.g., 

Elston, 997 F. 2d at 1413 (In an education context, the practice must be demonstrably necessary to meeting an 

important educational goal, i.e. there must be an "educational necessity" for the practice). 39 Elston v. Talladega County Bd ofEduc., 997 F.2d at 1407. 

40See, e.g., Coalition ofConcerned Citizens Against l-670v. Damian, 608 F. Supp. I IO, 119-20 (S.D. Ohio 1984), 

(conducting a thorough review ofalternatives sites for highway or other methods, such as light rail or public 

transportation). 

41See, e.g., Damian, 608 F. Supp. at 127; see also Bryan, Jr., et al., v. Edward I. Koch et al., and District Council 

37, American Federation ofState, County and Municipal Employees Union, AFL-C/0, et al., 627 F.2d 612 (1985), 

at 617-18. 

42 49 C.F.R. § 2 l .5(b)(7) ( 1970). 

43 Id 

44 49 C.F.R. § 21.5(d) (1970). 

18 
institution, or organization, or other entity, or any individual, in any State, territory, possession, 

the District of Columbia, or Puerto Rico, to whom Federal financial assistance is extended, 

directly or through another recipient.45 

Respondent is the recipient ofFederal financial assistance through FHWA, as it receives an 

annual apportionment offunding under the J{evailing highway act. For example in 2016, 

Respondent was apportioned $542,412,699 6 pursuant to the Fixing America's Surface 

Transportation Act (FAST Act), Public Law (Pub. L.) 114-94. According to the Final EIS, 

Respondent has programmed $50 million ofFHWA funding for Phase 1 ofthe 1-70 East project. 

Further, it has expended $ I2,504,737 ofadvance construction funds during the environmental 

analysis phase ofthe project under the National Environmental Policy Act (NEPA) alone.47 

However, even in the absence of Federal monies on this project, Respondent would still be 

subject to Title VI.48 

Any person who believes they, or any specific class of persons, have been subjected to 

discrimination prohibited by Title VI may by themselves or by a representative file a written 

complaint with the FHWA.

49 A complaint must be filed not later than 180 days after the date of 

the alleged discrimination, unless the time for filing is extended by a competent authority.50 Once 

a complaint is accepted, FHWA will make a prompt investigation whenever a compliance 

review, report, complaint, or any other information indicates a possible failure to comply with 

Title VI. The investigation will include, where appropriate, a review ofthe pertinent practices 

and policies ofthe recipient, the circumstances under which the possible noncompliance 

occurred, and other factors relevant to a determination as to whether the recipient has failed to 

comply with Title VI. 51 

The Complainant is of Hispanic or Latino national origin, whose residence is in the Project area 

and alleges the Project will disproportionately adversely impact her and other Hispanic members 

ofher community on the basis of national origin. As noted previously, the Complainant filed the 

Title VI complaint on November 15, 2016, 176 days after the date ofthe Respondent's action to 

approve the STIP. 

V. Analysis 

This section summarizes information related to potential adverse disparate impacts stemming 

from selection ofthe preferred alternative for the I-70 East project, including community 

demographics, adverse impacts, and mitigation measures. 

45 49 C.F.R. § 2 I .23(t). 46 See Notice ofApportionment. N 4510.802, January 8, 2016. 47 Respondent project funding summary shows a total of$37,500,000 in advance construction of which $12,504,737 

are Federal. 48 See Section rv and footnote 2. 49 49 C.F.R. § 21.1 l(b). so Id. 51 49 C.f.R. § 21.1 l(c). 

19 
a. Disparate Impacts Based on Race, Color, or National Origin 

The Complainant asserts the preferred alternative will have a disproportionate and adverse 

impact on the predominantly Hispanic persons in Elyria-Swansea. Specifically, the Complainant 

expresses concerns that the project: 

• Increases air pollution and resulting/associated health issues; 

• Destroys homes, businesses and an elementary school playground; 

• Widens the existing divide within the impacted communities; 

• Disturbs ground contaminants that exacerbate air quality along the project 

corridor; 

• Increases noise levels, particularly in Globeville, Elyria and Swansea; 

• Decreases property values, particularly in Elyria-Swansea based on their project 

proximity. 

FHWA examined the evidence for each listed concern in an effort to assess Complainant's and 

Respondent's expectations of adverse impacts. 

1. Air Quality and Health Impacts 

The Complainant alleges that adding lanes to J-70 will increase air pollution and therefore cause 

a disparate impact. Specifically, Complainant alleges that expanding I-70 will increase traffic 

driving on the highway, and will, thus, increase fine particulate matter ("PM2.5") emissions that 

cause "asthma, heart attacks, and premature death." Complainant also alleges that the 

Respondent failed to conduct a health impact assessment ofthe Project. In support ofits 

allegations, the Complainant offered documents regarding the harmful effects ofhighway traffic 

on air quality. Some ofthe Complainant's evidence speaks to general concerns about potential 

negative health impacts ofthe Project. During interviews with FHWA, residents anecdotally 

referred to their health problems, such as asthma and cancer. Interviewees stated that 1-70 was 

the cause for these health problems. 

Other Complainant documents allege the Respondent failed to comply with legal requirements 

for air quality and related health impacts, but the weight of evidence does not support these 

allegations. The Complainant cited public comments for the Project made by the Sierra Club, 

Colorado Latino Forum, and North Denver Community Organizations regarding the Colorado 

2017-2020 STIP (Sierra Club).

52 To begin, the Sierra Club alleges"[v]iolations of Federal 

Requirements Governing the Metropolitan Planning Process for the Development and Adoption 

ofRegional Transportation Plans and Transportation Improvement Progran1s. "

53 The Sierra Club 

52 Comments ofSierra Club, Colorado Latino Forum, and North Denver Community Organizations Objecting to 

Approval ofProposed 2017-2020 Colorado State Transportation Improvement Program, 

http://www.sierraclub.org/s ites/www.sierrac I ub. org/fi les/sceauthors/u5 5 7 /S TIPcommentsS ierraClub,CLF. CGD,etc20160429 .pd f. 53 Id at I. 

20 
alleges the Respondent failed to comply with the legal requirements ofTitle VI and 

Environmental Justice. For example, the Sierra Club stated:

54 

Evidence documented by Denver [Department of] Environmental Health (DEH) 

showing disparate health outcomes for residents in the Globeville/Elyria/Swansea 

neighborhoods and the city council districts where I-70 is located compared to 

other council districts in Denver, including a 50% higher incidence ofmortality 

related to cardiovascular disease, 50,000 more years oflife lost annually, and 40% 

greater rate ofhospitalization of children for asthma, demonstrate that these 

residents are disproportionately affected by the diseases of air pollution. The 

contribution that emissions from current vehicle travel on heavily trafficked 

highways such as I-70 make to these adverse community health outcomes must be 

evaluated, disclosed to decisionmakers and the public, and considered in the 

evaluation ofalternatives to detennine the extent to which community health can 

be enhanced by reducing, not increasing, exposure to traffic pollution in these 

neighborhoods. 

The investigation determined that the Respondent did evaluate health impacts, for 

Globeville/Elyria/Swansea, while also considering the DEH study referenced by the Sierra 

Club.55 The Respondent performed environmental studies ofthe Project, in coordination with the 

Colorado Department of Public Health and Environment, the federal Environmental Protection 

Agency (EPA) and the FHWA. No studies during this investigation were found to demonstrate a 

causal link between adverse health impacts and the preferred alternative for the I-70 project. In 

fact, the preferred alternative is projected to reduce Elyria-Swansea residents' exposure to 

emissions and air toxics by alleviating congestion in the community when compared to other 

alternatives for the project, including the "no action" alternative. As discussed before, traffic 

modeling conducted for the project demonstrated that rerouting I-70 around the community 

would result in heavy traffic along 46th A venue, exposing residents to increased emissions. 

Therefore, it is expected that the preferred alternative will benefit Elyria-Swansea with regards to 

air quality, by replacing an aging and congested system. 

The Clean Air Act, Section 176(c), requires that federally supported highway and transit projects 

are consistent with state air quality goals found in the State Implementation Plan (SIP). The 

process to ensure this consistency is called Transportation Conformity. A transportation project 

is said to conforn1 to the provisions and purposes ofthe SIP if the project, both alone and in 

combination with other planned projects, does not:56 

• Cause or contribute to new air quality violations ofthe NAAQS; 

• Worsen existing violations ofthe NAAQS; or 

• Delay timely attainment ofthe NAAQS or required interim milestones 

54 Supplemental Draft EIS Comments and Responses, S- 105, January 2016, http://www.i70east.com/Fina1EIS/chapters/I-70EastFEIS Vol3AttO-Part I Agency-Biz-Special-lnt.pdf. 55 1-70 East Final Environmental Impact Statement and Section 4(t) Evaluation, Volume 2, Attachment J, Section 

5.2, Colorado Department of Transportation, January 20 16, http://www.i-70east.com/FinalEJS/chapters/I70EastFEIS Vol2AttJ Air-Ouality.pdf. 56 40 C.F.R. §93. I l 6(a). 

21 
Transportation conformity is required for federally supported transportation projects in areas that 

have been designated by the U.S. Environmental Protection Agency (EPA) as not meeting one or 

more ofthe transportation-related NAAQS. 

The Project is in a nonattainment area for ozone, and an attainment/maintenance area for PMI 0 

and carbon monoxide; therefore, it must comply with transportation conformity requirements for 

these NAAQS. 57 FHWA concurred that the project would meet the transportation conformity 

requirements because the Central 70 Project does not contribute to any new local violations, 

increase the frequency or severity ofany existing violation, or delay timely attainment ofthe 

NAAQS or any required interim emission reductions or other mjlestones. -'8 

Some public commenters asked why the respondent did not examine some additional 

transportation related pollutants. The Respondent did not model PM2.5 and nitrogen dioxide for 

roadside concentrations in the Final EIS because they are not pollutants ofconcern in the Denver 

area or the project area at the present time or into the foreseeable future. PM2.5 and nitrogen 

dioxide were examined through emissions inventories. The Denver area has never violated the 

NAAQS for PM2.5. Since Denver is an attainment area for PM2.5, no hot spot modeling for 

PM2.5 is required. With regard to nitrogen dioxide, the EPA conformity regulations do not 

require hot spot modeling for nitrogen dioxide. 40 CFR §93.116 clearly states that it only applies 

to non-attainment or maintenance areas, thereby exempting the Denver metro area from 

performing hot spot analyses for nitrogen dioxide. The project used the best science and data 

available to make its determinations about NAAQS violations. The approved methods to 

determine air quality impacts, developed in consultation with EPA and CDPHE-APCD, show the 

project will not cause exceedances ofthe NAAQS. 

Since the Complainant filed her complaint, the Respondent posted and distributed an Air Quality 

Update to its Draft Air Quality Conformity Determination and NEPA Comparative Analysis in 

response to comments received on the FEIS.59 The comment period extended from December 16, 

2015 through January 14, 2017 and offered another opportunity for the Complainant and 

affiliated community members to provide input. The report included the results ofanalysis ofthe 

preferred alternative as well as a comparison between alternatives. Ofnote, in regard to the 

Project's air quality impacts, the analysis in the report shows that the I-70 East project meets the 

requirements ofthe Clean Air Act and, "will not cause violations ofair quality standards in the 

Denver Region when the project is completed and being used by the traveling public." Final 

conformity is documented in Section 6.1 ofthe FHWA Record ofDecision, which was issued in 

January, 2017. 

57 I-70 East Record ofDecision: Phase I (Central 70 Project), Federal Highway Administration, p. 67, January, 

2017. 

58 Id. at 68. 59 Air Quality Update Draft Air Quality Conformity Determination and National Environmental Policy Act (NEPA) 

Comparative Analysis, December 2016, http://www.i-70east.com/Air0uality/l-70EastEIS DraftAirOuality.pdf. 

22 
The investigation also determined that the Respondent was responsive to air quality concerns and 

recommendations raised by EPA and comments received by the public, including the Sierra 

Club.60 

When looking at the complete record, the air quality studies demonstrate that the preferred 

alternative would not adversely impact the regional or project-level air quality.

61 The Respondent 

also demonstrated it was responsive to the concerns and suggestions EPA raised regarding air 

quality issues. Based on the evidence discussed in this section, FHWA finds there is insufficient 

evidence ofadverse harm on the basis of air quality. 

2. Right of Way Acquisition 

The Complainant alleges the preferred alternative disproportionately impacts Hispanics 

in Elyria-Swansea due to the number ofrelocations/displacements necessary. The FEJS 

shows the prefened alternative would require relocations of 56 residential properties as 

well as 35 tenants as shown in Figure I 0, while the resulting relocations for all 

alternatives would take place in the Elyria-Swansea neighborhoods.62 

Figure 10 

Summary ofResidential Relocations/Displacements for Project Alternatives 

Residential Relocations 

Alternative/Option Total 

Residential 

OwnerOccupled1 TenantOccupied 

No-Action Alternative, North Option 15 7 8 

No-Action Alternative, South Option 

Revised Viaduct Alternative, North Option 

13 

38 

3 

16 

10 

22 

Revised Viaduct Alternative, South Option 44 11 33 

Partial Cover Lowered Alternative 56 21 35 

The preferred alternative would require 17 total business relocations and one non-profit, as 

shown in Figure 11. Note that the Swansea Elementary School changes are not considered a 

relocation- the original facilities will be expanded on and not moved. 

60 Letter from Monica Morales (Acting Dirctor, Air Program, EPA) to Chris Hom (Senior Area Engineer, FHWA 

CO Division) and Vanessa Henderson (1-70 East Environmental Manager, COOT), January 18, 2017. 6 1 1-70 East Record of Decision: Phase I (Central 70 Project), Federal Highway Administration, p. 68, January, 

2017. 

62 1-70 East Final Environmental Impact Statement and Section 4(f) Evaluation, Volume I, Section 5.5, Colorado 

Department ofTransponation, January 2016, http://www.i-70east.com/Fina1EIS/I-70EastEIS FEIS-Volumel .pdf. 

23 
Figure 11 

Summary ofBusiness Relocations/Displacements for Project Alternatives 

Alternative/ 

Option Neighborhood Business Relocations 

Non-Profit 

Relocations 

No-Actlon Alternative, North Option 

Elyria and Swansea 

Total 

5 

5 

1 

1 

No-Action Alternative, South Option 

Elyria and Swansea 

Total 

15 

15 

-

- Elyria and Swansea 10 1 

Revised Viaduct Alternative, North Option 

Northeast Park Hill 

Stapleton 

3 

l 

-

-

Total 14 1 

Elyria and Swansea 22 1 

Revised Viaduct Alternative, South Option 

Northeast Park Hill 

Stapleton 

3 

1 

-

-

Total 26 1 

Elyria and Swansea 13 1 

Partial Cover Lowered Alternative 

Northeast Park Hill 

Stapleton 

3 

l 

-

-

Total 17 1 

The preferred alternative would require more residential relocations compared to the other 

alternatives at 56, and would require more business relocations than all but the South Revised 

Viaduct Alternative, with 17 impacted business properties and one impacted not-for-profit 

property. All ofthe residential relocations are in the Elyria-Swansea neighborhood, as are all but 

four ofthe impacted businesses. 

The Complainant also alleges the lower property values in Elyria-Swansea, coupled with rising 

residential, rental and commercial property values city-wide, may make it difficult for relocatees 

24 
to find suitable replacement properties within the neighborhood or even in the City or County. 

FHWA finds insufficient evidence to indicate that relocatees will have difficulty finding suitable 

replacement properties. Furthermore, the Respondent has committed to using the Uniform 

Relocation Act's " housing oflast resort" option for residents affected by the relocation, making 

it possible for relocatees to be offered equitable housing options that may be more costly than 

their current homes. 63 

The Respondent attempted to collect demographic data for the proposed relocatees, per 23 

C.F.R. §200.9(b)(4), but the state personnel stated they were unable to collect sufficient data due 

to the collection form being voluntary. FHWA could infer that, since all residential locations are 

within the majority Hispanic Elyria-Swansea neighborhood, a majority ofrelocatees are 

therefore Hispanic. As demonstrated in Figure 1, Elyria-Swansea residents are 82.89% Hispanic 

or Latino, while the rest ofthe neighborhoods in the study area range from 11.91 % Hispanic or 

Latino (Stapleton) to 61.33% Hispanic or Latino (Globeville). 

Nevertheless, the Respondent states that it has and will continue to follow the Uniform 

Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act). 

FHWA's Uniform Act regulations at49 C.F.R. Part 24 provide that owners of real property, and 

other displaced persons, to be acquired for Federal and federally-assisted projects are treated 

fairly and consistently, to encourage and expedite acquisition by agreements with such owners, 

to minimize litigation and relieve congestion in the courts, and to promote public confidence in 

Federal and federally-assisted land acquisition programs. The Respondent states that:64 

Residents will not be required to move unless at least one comparable DSS 

replacement unit is available. Decent, safe, and sanitary standards are established 

by federal regulations and conform to applicable local housing and occupancy 

codes. CDOT will provide comparable replacement housing that is DSS and 

within the resident's financial means, before any residents will be required to 

move. Ifsuch comparable replacement housing is not available, the regulations 

allow the agency to provide a replacement housing payment in excess ofthe 

statutory maximum as part ofthe Last Resort Housing process. 

In addition, the Respondent has committed in its FEIS to providing $2 million in funding to 

develop affordable housing units in the Elyria and Swansea Neighborhood through available 

programs.

65 This commitment, which will became legally binding when FHWA issued its 

Record ofDecision on January 19, 2017, may help those residents who need additional housing 

assistance beyond what the Uniform Act provides. 

63 FHWA conducted interviews with individuals regarding the Right of Way Acquisition, but that matter is 

discussed in greater detail under the Public Involvement section 

64 1-70 East Final Environmental Impact Statement and Section 4(f) Evaluation, Volume I, Section 5.5- 19, Colorado 

Department ofTransportation, January 2016, http://www.i-70east.com/Fina1EIS/I-70EastEIS FEIS-Volume I .pdf. 65 Id. Volume 9, p. 9-7. lmp://www.i-70east.com/FinalEIS/chapters/l-70EastFEIS Vol I Ch9 Preferred-AltMitigation-CommiLpdf. 

25 
Due to the relatively large amount ofresidential relocations, and the likelihood that these 

relocations will disproportionately affect Hispanic residents, the preferred alternative could have 

a disparate and adverse impact on Elyria-Swansea. 

3. Community Cohesion 

The Complainant alleges adverse impacts to community cohesion with the preferred alternative, 

alleging that the highway will be wider, and some north-south access points and on-ramps will 

be eliminated. Respondent states that any detrimental effects to community cohesion are 

mitigated by the preferred alternative, in particular through the cover portion ofthe Project, 

which is illustrated in Figure 12. 

Figure 12 

Pref erred Alternative Cover Illustration 

The Respondent intends for the cover to serve as an active community space for the surrounding 

residents and local neighborhoods, as well as provide required mitigation for Swansea 

Elementary School. The Respondent consulted with the City of Denver and Denver Public 

Schools to arrive at this connectivity solution, including the boundaries of the school playground 

(school use only areas) and the potential use ofthe shared space (shared school and community 

use) on the highway cover. Further, the Respondent believes the integrated design ofthe 

highway cover will have a direct impact on the perception ofsafety and will influence an 

individual's willingness to use the space. Designing for safety includes meeting the needs ofits 

users; providing diverse and interesting features, and will reconnect the surrounding areas and 

provide easy and safe connections between these communities for all users, especially 

26 
pedestrians and bicyclists. The inclusion ofthe highway cover helps achieve some broader 

community goals of livability, quality schools, and safe streets along with supporting the existing 

communities along the corridor. In addition, the highway cover reduces noise impacts in adjacent 

areas. The cover also will directly contribute to improved air quality, resulting in PM! 0 

concentrations that are lower at Swansea Elementary School than future conditions without the 

cover (No-Action Alternative), and indirectly by encouraging more walking and bicycling for 

short trips to local destinations. 66 

In contrast, the existing facilities do not offer many ofthe pedestrian and livability features that 

the cover will provide, as shown in Figure 13. 

Figure 13 

Photo o Clayton Street and 46

th Street; East Endo , 

The evidence demonstrates that the Project is likely to improve community cohesion in the 

Elyria-Swansea neighborhoods, with few temporary impacts during construction and overall 

positive cumulative impacts. While the preferred alternative eliminates one interchange at York 

Street, it also provides an interchange a half mile west and another 0.5 miles east. Moreover, 

interchange reconstruction provides longer ramp lanes, reduces weaving and appears an overall 

safer option. Similarly, the preferred alternative does eliminate one north-south access point at 

Garfield Street, but it maintains and improves crossings at York Street, Josephine Street, 

Columbine Street, Clayton Street, Fillmore Street and Steele Street. It further provides an 

additional crossing over the lowered I-70 at Cook and Monroe Streets. With improvement and/or 

addition of pedestrian facilities, Elyria-Swansea will enjoy the best connectivity since the 

construction ofthe viaduct. 

66 I-70 East Final Environmental Impact Statement and Section 4(f) Evaluation, Volume I, Section 5.3-34, Colorado 

Department ofTransportation, January 2016, http://www.i-70east.com/Fina1EIS/I-70EastEIS FEIS-Volume I .pdf. 

27 
Finally, other than Swansea Elementary School (which under the preferred alternative realizes 

improvements for both students and the surrounding community) and the Denver Rescue 

Mission there are no other public services identified that are adversely affected. Therefore, the 

preferred alternative is unlikely to cause adverse impacts to the affected community. 

4. Noise 

The Complainant alleges the preferred alternative will result in higher than permjssible noise 

levels along the 1-70 corridor, primarily impacting the Hispanic neighborhoods ofGlobeville and 

Elyria-Swansea. Respondent argues that noise mitigation is in compliance with 23 C.F.R. §772 

and that it will install a sound wall in the area where noise receptors indicate the need for 

abatement, as shown in Figure 14. 

Figure 14 

Locations ofNoise Analysis 

i ~ !&J-4-• Monlbello I " ,.Ii' / «::: .!I 

Staplffln 

na ol analys,a ereaol analysis j 

Globevlllo Elyrll and SWllnsa ~ 

areaol 

J 

.-alysis 

rv=--·-- l ( y ~ 1

-( ! ~ 

8 .... ~ ~ 

: 

...... 

~ 

j

• f l 

For all federal aid projects, recipients must compare projected noise levels to the minimum 

standards provided by the FHW A and provide mitigation. 67 These minimums are referred to as 

Noise Abatement Criteria (NAC) standards. A "traffic noise impact" occurs when design year 

build condition noise levels approach or exceed the NAC standards for future conditions or over 

existing noise levels.68 Noise can be defined as unwanted or undesired sound, and can affect 

peoples' daily activities, especially those that occur outdoors. Noise from traffic on roadways 

can be disruptive at high noise levels ifit is not mitigated. Noise typically affects humans in 

three different ways: intensity, frequency, and variation with time. Noise intensity, or loudness, 

is determined by how sound pressure fluctuates. Since the range ofsound pressure ratios vary 

greatly over many orders ofmagnitude, a base-10 logarithmic scale is used to express sound 

levels in dimensionless units ofdecibels ( dB). The range of noise normally encountered can be 

expressed by values between 0 (threshold of hearing) dB and 120 dB. A 3-dB change in sound 

level generally represents a barely noticeable change in noise level, whereas a 10-dB change is 

typically perceived as a doubling ofloudness. Because sensitivity to sound varies from person to 

person, the A-weighted system- expressed as dBA- is used to provide a value that represents 

human response. Leq(h) is the hourly equivalent noise level; the equivalent steady-state sound 

level that contains the same amount ofacoustic energy as the time- varying sound level over a 

one-hour period. 

67 23 C.F.R. §772.3. 68 Id. §772.5. 

28 
Due to the expected increase in traffic volumes along the I-70 East corridor by 2035, and the 

changes proposed by the design alternatives, the Respondent expects that traffic noise will 

increase over time for all alternatives. However, the evidence shows that compared to the "no 

action" alternatives, the preferred alternative will ultimately result in fewer impacts. By 2035, the 

preferred alternative is projected to have fewer noise impacts compared to the "no action" 

alternatives, therefore rendering the construction ofthe preferred alternative a future benefit to 

the community with regards to noise impacts. Both "no action" alternatives result in impacts to 

numerous noise receptors primarily because ofthe higher future (2035) traffic volumes coupled 

with the highway alignment moving closer to many ofthe noise receptors. 69 For the "no action" 

North option, for example, the noise levels in Elyria will range from 64 dBA to 75 dBA, which is 

3 dBA to 13 dBA greater than the existing noise range. Ofthe 136 noise receptors modeled for 

this option, 116 are anticipated to exceed their respective NAC thresholds. Ofthe 116 impacted 

noise receptors, 20 will experience a substantial noise increase. In Swansea, the noise levels 

range from 61 dBA to 76 dBA, which is 2 dBA lower to 11 dBA greater than the existing noise 

levels. Ofthe 297 noise receptors modeled for this option, 233 are anticipated to exceed their 

respective NAC thresholds. Ofthe 233 impacted noise receptors, 20 will experience a substantial 

noise increase. As an example, the impacts for the No Action North alternative are depicted in 

Figure 14. 

69 1-70 East Final Environmental Impact Statement and Section 4(t) Evaluation, Volume I, Section 5.12-14, 

Colorado Department ofTransportation, January 20 l6http://www.i-70east.com/FinalEIS/chapters/1-

70EastFEIS_ Voll ChS-12_ Noise.pdf 

29 
Figure 14 

Noise Impacts in Elyria andSwanseafor No-Action Alternative, North Option 

Points shOwn rcprosont /ocat/Ons lhDt c.Jfl mod()I rm/Ci{)IO receptors. 

• NAC Category Bor C, <66 dBA  NAC Category E, <71 dBA = Construction limits 

NACCategory Bor C, ~66 dBA NAC Category E, ~71 dBA 

In comparison, ofthe 129 noise receptors in Elyria, 55 noise receptors (23 modeled locations) 

are anticipated to exceed their respective Noise Abatement Criteria (NAC) thresholds with the 

Partial Cover Lowered Alternative. Ofthese 55 impacted receptors, 11 also would experience a 

substantial increase in noise. The noise levels in Elyria would range from 60 dBA to 75 dBA, 

which is 3 dBA lower to 16 dBA greater than the existing noise levels. In Swansea, ofthe 287 

receptors, 50 receptors (21 north ofI-70 and 29 south of I-70, 27 modeled locations) would 

exceed their respective NAC thresholds with the Partial Cover Lowered Alternative. None ofthe 

30 
50 impacted receptors would experience a substantial noise increase. The noise levels for the 

Partial Cover Lowered Alternative range from 52 dBA to 74 dBA, which is 6 dBA lower to 8 

dBA greater than existing noise levels. This is shown in Figure 15. 

Points shown represent loca//OnS that can model rooltlp,Je receptors. 

• NAC Category Bor C, <66 dBA = Construction limits 

NAC Category Bor C, ~66 dBA Highway cover limits 

 NAC Category E. <71 dBA 

Regarding mitigation, when recipients identify traffic noise impacts, noise abatement shall be 

considered and evaluated for feasibility and reasonableness.70 Recipients must determine and 

70 23 C.F.R. § 772. I 3(a). 

31 
analyze alternative noise abatement measures to abate identified impacts by giving weight to the 

benefits and costs of abatement and the overall social, economic, and environmental effects by 

using feasible and reasonable noise abatement measures for decision-making. 

Regarding feasibility, recipients must define, and receive FHW A approval for, the number of 

receptors that must achieve at least a 5 dB(A) reduction for the noise abatement measure to be 

acoustically feasible and explain the basis for this deteimination.71 In addition, recipients must 

determine it is possible to design and construct the noise abatement measure. Factors to consider 

are safety, barrier height, topography, drainage, utilities, and maintenance of the abatement 

measure, maintenance access to adjacent properties, and access to adjacent properties. 

Recipients must also consider the reasonableness of noise abatement measures, which involves 

two factors: (1) the viewpoints ofthe affected community and (2) cost effectiveness. 72 Recipients 

shall solicit the viewpoints ofall ofthe benefited receptors and obtain enough responses to 

document a decision on either desiring or not desiring the noise abatement measure. Regarding 

cost effectiveness, recipients shall determine, and receive FHWA approval for, the allowable 

cost of abatement by determining a baseline cost reasonableness value. This determination may 

include the actual construction cost of noise abatement, cost per square foot ofabatement, the 

maximum square footage ofabatement/benefited receptor and either the cost/benefited receptor 

or cost/benefited receptor/dB(A) reduction. The highway agency must re-analyze the allowable 

cost for abatement on a regular interval, not to exceed 5 years. 

The Respondent's noise analysis was performed as outlined in its CDOT Noise Analysis and 

Abatement Guidelines (January 2015). 

73 Project noise impacts were analyzed for land uses such 

as homes, parks, schools, and churches that were located within 500 feet of the edge ofthe 

pavement ofI-70. Typically, noise mitigation is not considered for any industrial or commercial 

properties unless they have a noise-sensitive function, such as a recording studio or a hotel. 

Noise impacts were predicted using Traffic Noise Model version 2.5 (TNM), which is supported 

by the FHWA.74 To be considered feasible, the Recipient's guidelines state that a noise wall 

must:75 

1. Cause at least a 5-dBA reduction for at least one impacted receptor; 

2. Not reduce safety, such as reducing sight distance; 

3. Be possible to construct with reliable and common engineering practices; and 

5. Be no more than 20 feet in height. 

Walls along 46th A venue were placed on the side ofthe street adj a cent to the 1-70 mainline. 

The walls were assumed to be located at the edge ofpavement ofthe proposed roadway. Based 

on the mitigation analysis performed, the total length ofthe noise wall complex is proposed to 

be approximately 2,380 feet in Elyria, 1,370 feet along the north side ofI-70 in Swansea, and 

71 23 C.F.R. § 772.l3(d)(l)etseq. 

72 Id. § 772. l 3(d)(2) et seq. 73 https://www.codot.gov/programs/environmental/noise. 74 http://www.fnwa.dot.gov/environment/noise/traffic noise model/. 75 Noise Technical Report, I-70 East Final Environmental Impact Statement, p. 19, Colorado Department of 

Transportation, January 2016, http://www.i-70east.com/FinalEIS/chapters/I-70EastFEIS Vol2AttK Noise.pdf. 

32 
approximately 3,650 feet along the south side of I-70 in Swansea. 

TNM analyzed wall heights of eight feet to 20 feet. In Elyria, 12-foot to 20-foot walls were 

found to be both feasible and reasonable. Walls analyzed from 12-foot to 20-foot were found to 

be feasible in Swansea north ofl-70 and achieve the 7-dBA design reduction goal, but fail to 

meet reasonability criteria because ofthe high cost-benefit index. In Swansea south ofl-70, 

8-foot to 20-foot walls met feasibility requirements, but failed to meet reasonability 

requirements because an 8-foot wall did not benefit any receptors by 7-dBA and IO-foot to 20-

foot wall heights and did not result in an acceptable cost-benefit index value. 

In Swansea, Respondent found noise abatement unreasonable because they failed to lower the 

noise by required decibels. Elyria will receive 2,380 feet ofnoise walls, as receptors indicated 12 

to 20 foot walls to be both feasible and reasonable. 

Because the preferred alternative will have a lesser adverse impact compared to the "no action" 

alternative, FHWA finds there is insufficient evidence that the preferred alternative would 

adversely impact Elyria-Swansea on the basis ofnoise. Were the project not to be constructed at 

all, Elyria-Swansea would face higher noise levels in the future than if the preferred alternative 

were built. 

5. Public Involvement 

One ofthe prevailing principles oftransportation planning and project development is need for 

early, continuous and extensive public involvement, including both access to information and 

solicitation ofpublic input. The Complainant alleges that Respondent failed to provide adequate 

consultation with the minority communities in the selection ofthe preferred alternative. 

Respondent argues that public involvement was and continues to be an integral part ofthe 

project study, particularly with regard to the Globeville and Elyria-Swansea communities and 

those who are Limited English Proficient (LEP). The Respondent's overall public involvement 

process for the Project is found in Figure 16. 

33 
Figure 16 

FEIS Public Involvement overview 

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 20111 

P.t,1,..nu HPTE Mutl"'Ji  DooMO-Oo« Sarvey ..,,---- ,,_,......_...__. .lol/Jov-rror;W•--21.-IIIC.r1"'"1 ---2.000 IOIO-IGII 

(PACT• /'rflrtrtd A/ttm,t'/t-JIMltJffll 

I

Blodc ~1eeiings ._., 100• ..._ ......... 1001 

(I «-, • IP 

Cover Plonnlng Meelfnts 

-71115

....-it

~ 

• Neltllllotttoo4-- ,2.....--- --·---

Aid 10 Ml 11, 21111 

-t3•1~10IZ _,Zml3.2ll12 ...,,..,1.2111 

Worllklg Groups COOT and 9ttla/S- ,_- ,.,.. Aln comlirtd -1Jnp 20 wort.1111 g!'DU91 tlc)- Z0.2013 SlptofflN< 11, 2013 

.............. -,a21TJ 

In Chapter 10 ofthe Final EIS, Respondent provides a detailed summary of project outreach, 

beginning as early as 2003 and including both agency coordination and community outreach. 76 

The Respondent produced flyers, print media, newsletters, and email/phone blasts. For example, 

agency coordination for the 2008 Draft EIS included both an Environmental Justice Compliance 

Committee and Air Quality Compliance Committee to ensure specific concerns were addressed 

and the results in compliance with federal laws and related authorities. Community outreach 

included a number of FHWA-identified strong practices, including hiring community residents to 

share project information; using faith-based organizations to distribute project information; 

providing food and child care at project events to promote attendance; taking project information 

info the impacted neighborhoods and collecting survey responses; holding block meetings to 

build rapport with communities and better understand needs and values ofspecific parts of a 

neighborhood; and tiered meetings to collect information from entire neighborhoods as well as 

the perspectives ofthe overall corridor. The community outreach included members ofthe 

Elyria-Swansea neighborhoods, and the Respondent held neighborhood-specific meetings for 

Elyria-Swansea. 

76 I-70 East Final Environmental Impact Statement and Section 4(f) Evaluation, Volume I, Section I 0, Colorado 

Department ofTransportation, January 2016, http://www.i-70east.com/FinalEIS/T-70EastEIS FEIS-Volume l .pdf. 

34 
To ensure continued involvement, Respondent formed project working groups focused on 

particular areas of concern, as well as meetings specific to each neighborhood, including ElyriaSwansea.77 The groups consisted ofinterested members ofthe communities who then worked 

with transportation and project specialists to help evaluate the project alternatives and impacts. 

When this and other methods failed to identify a preferred alternative after the 2008 Draft EIS, 

Respondent formed the Preferred Alternative Collaborative Team (PACT), consisting of 

government agencies at all levels as well as representatives from community residents, 

businesses and interest groups. In 2011 , this effort too failed to reach consensus on a project 

alternative beyond general agreement that the project alignment should remain in the current I-70 

footprint. 

With the assistance ofthe City ofDenver, Respondent participated in a series of working group 

sessions, prompting re-examination ofthe previously eliminated alternatives and the eventual 

development ofa hybrid alternative that both met project needs and addressed the documented 

concerns ofthe public and stakeholders, the preferred Partial Cover Lowered Alternative. Since 

then, involvement has continued with targeted meetings, notably with Elyria-Swansea 

stakeholders, to discuss impacts to Swansea Elementary School and other local issues. 

Respondent conducted telephone town hall meetings in English and Spanish, at least one of 

which addressed project alternatives/impacts and resulted in 2600 participants. Finally, 

Respondent provided an information kiosk near the Swansea Elementary School to advise the 

community ofproject contacts, announcements and opportunities for involvement. It also opened 

project offices within the project corridor to provide infonnation and undertake specific outreach 

tasks, such as addressing right of way issues. Respondent committed to maintaining an office 

during construction to ensure fast and efficient public communication. 

Respondent's project website, available in both English and Spanish,

78 provides details on past 

public engagement and solicits input from the public. The site's visualization techniques include 

maps, schedules, project documents, high definition "fly over" videos and updated technical 

studies and summaries, among others. The Respondent displays photos to display its public 

involvement with headings such as "Walk-ins Welcome" and "Your Opinion is Important." The 

Respondent also created a 29-minute video that provides a history ofGlobeville and ElyriaSwansea, including its use for heavy industry and disenfranchisement during construction of the 

interstate system. The video features audio clips from residents and stakeholders expressing their 

love of and concern for the community, and not all ofwhom were or are project supporters. 

Even with an extensive record ofpublic involvement activities, FHW A did discover during its 

investigation that there was potential for improvement. For example, FHWA interviewed a 

number ofwitnesses who expressed confusion about the right of way process and whether it 

would impact their residence. One witness shared that information on right ofway relocation 

was not distributed to her landlord, the property owner. Another said she was unaware of any 

right ofway specific meetings in either Spanish or in English. Witnesses generally agreed that 

the impacted residents were concerned about two things: 1) Respondent did not provide 

77 E.g. CDOT and City and County ofDenver 1-70 East Elyria and Swansea Joint Public Meeting Summary, 

http://www.i-70east.com/meetingminutes/ElyriaSwansea/ESNPMeeting 11-20-13 MeetingSummarv.pdf. 78 See hnp://www.i-70east.com/index-es.hnnl. 

35 
sufficient updates or new information on right ofway; and 2) affected persons would not have 

enough time to find affordable housing and move. 

Though overall not constituting an adverse impact, FHWA will make recommendations to the 

Respondent to ensure that public involvement is meaningfully engaging the public through all 

aspects and phases of a project. 

6. Summary ofBenefits and Mitigation of Impacts 

The Complainant suggests that, as a small minority community bisected by I-70, the ElyriaSwansea neighborhoods will realize fewer project benefits compared to other affected 

populations in the Project area, as well as the City ofDenver. When detennining the level of 

adverse impact, the countervailing benefits accruing to impacted communities from a proposed 

project or policy are to be weighed against the harms.79 When recipients take actions to mitigate 

impacts, they must be balanced against the adverse impacts to detem1ine ifthe project as a whole 

is adverse. 

The weight ofthe evidence shows that many ofthe project benefits, which include the Project 

cover features, appear directly targeted toward Elyria-Swansea. Furthermore, as previously 

stated in this LOF, the preferred alternative will result in less adverse impacts to noise and 

reduced exposure to air pollution when compared to all alternatives, particularly the "no action" 

alternative. While it is possible the Project may have an adverse and disparate impact on the 

neighborhood due to the number ofresidential relocations in Elyria-Swansea, the Respondent 

has made commitments to mitigate that impact to the extent possible. The Respondent has 

committed to an extensive list ofmitigation features targeted toward the natural and human 

environments. A summary ofthe mitigation is found in Figure 17. 

Figure 17 

Summary ofBenefits; Impacts and Miti~ation 

Benefits all users Benefits to all 

affected 

neighborhoods 

Impacts 

- M itigation • 

... 

Less congestion on 

free lanes by 

addition of 

managed lanes 

Enhanced, improved 

north/south 

connectivity 

Relocation of Provide $2 million in 

residences and funding to develop 

businesses. affordable housing 

units in the Elyria and 

Swansea Neighborhood 

through available programs 

Piloting hiring preference 

programs for work on the 

project 

Helping essential businesses 

remain in the same 

79 See, e.g., NAACP v. Wilmington Med. Ctr., 657 F.2d at 1340 (3d Cir. 1980); see also United States v. Bexas 

County, 484 F. Supp. 855, 859 (W.D. Tex. 1980). 

36 
Improving safety 

due to fewer 

interchanges, 

longer ramps and 

less traffic 

weaving 

1-lm_p_a_c_t_s-toi--- -------1t--- ------------ Faster east-west 

access, particularly 

for emergency 

vehicles 

Maintaining a 

freight corridor 

within the existing 

interstate 

footprint 

Improving safety 

due to lighting and 

improved 

pedestrian facilities 

receptors and air 

quality issues, 

particularly during 

construction 

Removal of truck 

stop and resulting 

source of pollution 

Preserving large 

area employer 

Preserving location 

of Elementary 

School 

community 

Participate in and fund city 

and related programs to 

facilitate access to fresh 

food; affordable housing 

Provide residents near 

highway from Brighton to 

l -OS_ n_o-is-e---; Colorado Blvd (ElyriaSwansea, primarily} with 

A/C and storm windows 

Remove the viaduct, lower 

the highway, and cover 

----_,· portions of 

Visual obstruction by i the highway to include 

safety barriers, ! space for community and 

isolating community !

I 

neighborhood I 

views ! activities 

--------------< Enlist community to 

develop project aesthetics 

and design guidelines 

Moving Highway i Redesign and reconstruct 

closer to school the school playground; this 

will include the adjacent 

parcels as part of the 

elementary school 

site and will eliminate 

Elizabeth Street between 

46th Avenue and 47th 

Avenue and 46th Avenue 

between Clayton Street and 

Columbine Street will be 

removed to allow for a 

connection between 

Swansea Elementary School 

and the landscape on the 

highway cover 

Provide new HVAC, doors, 

windows for Swansea 

37