UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE NEW RIVER VALLEY GREENS;
THE SIERRA CLUB; THE NEW RIVER
VALLEY ENVIRONMENTAL COALITION,
Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF
TRANSPORTATION; FEDERICO F. PENA,
Secretary of Transportation;
FEDERAL HIGHWAY ADMINISTRATION;                                     No. 96-2545
RODNEY SLATER, Administrator,
Federal Highway Administration,
Defendants-Appellees,

and

ROBERT E. MARTINEZ, Administrator,
Virginia Department of
Transportation,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-95-1203-R)

Argued: August 12, 1997

Decided: November 17, 1997

Before RUSSELL and HALL, Circuit Judges, and MICHAEL,
Senior United States District Judge for the
Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Matthew Dean Pethybridge, PAINTER, KRATMAN,
PETHYBRIDGE, WINDELL & CRENSHAW, Blacksburg, Virginia,
for Appellants. Edward John Shawaker, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON
BRIEF: Lois J. Schiffer, Assistant Attorney General, John T. Stahr,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

I. Chronology

A. Factual

In June 1990, the Virginia Department of Transportation
("VDOT") began planning the construction of a five mile stretch of
highway in the Ellett Valley near Blacksburg, Virginia. As envi-
sioned, the road would relieve local traffic congestion along U.S.
Route 460, provide a more direct route from Roanoke to Blacksburg,
and serve as a test facility for development of a new "intelligent vehi-
cle/highway system." This stretch of highway, nicknamed the "Smart
Road," ultimately would include sensors in the road and possible
magnetic levitation and monitoring systems to assist drivers in vehicle
navigation.

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Because the highway was to be constructed and financed, in part,
with Federal monies, the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321 et seq. , applied to the project. Pursuant
to the Act's requirements, VDOT promulgated a Draft Environmental
Impact Statement ("DEIS") on August 20, 1991, made it available to
the public the next day, and, thereafter, held public hearings on it to
receive citizen commentary. On March 5, 1993, VDOT issued the
project's Final Environmental Impact Statement ("FEIS") which the
Federal Highway Administration ("FHWA") approved on March 26,
1993.

On May 2, 1994, the United States Fish and Wildlife Service
("FWS") informed the FHWA that a certain endangered plant, the
smooth coneflower, had been found in the project area. As a result of
the discovery, VDOT proposed a 750 foot shift in the final route of
some two miles of the Smart Road. On June 5, 1995, the FWS issued
a biological opinion concluding that this slight relocation of the road
along the new "southern alignment" would pose no threat to the con-
tinued well-being of the endangered flower.

In response to this partial redirection of the road, the defendants
issued an "Addendum" to the FEIS in September 1995. The Adden-
dum's purpose was to assess whether the altered alignment of the
road would produce any significant new environmental repercussions.
The Addendum concluded that because the environmental implica-
tions of the road's partial realignment were minor, preparation of a
Supplemental Environmental Impact Statement ("SEIS") was unnec-
essary under the NEPA. The Addendum was released on October 5,
1995.

B. Procedural

The plaintiffs, environmental activists in the Blacksburg area,
brought this action on November 15, 1995. They alleged, inter alia,
that defendants1 violated the NEPA by preparing the Addendum to
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1 By Order of April 10, 1996, the district court dismissed The Honor-
able Robert E. Martinez, Virginia Secretary of Transportation, as a party
to the suit. The United States Department of Transportation, the FHWA,
and their employees remain defendants.

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the FEIS in lieu of a SEIS and by originally using inadequate bird,
wildlife and plant surveys in drafting the FEIS.

On February 23, 1996, the district court issued a pretrial Order
which, among other things, established May 8, 1996 as the court's
deadline for the plaintiffs to file any motion to supplement the admin-
istrative record and established June 10, 1996 as the deadline for the
parties to file any motion for summary judgment. On June 10, 1996,
the New River Valley Greens ("Greens") filed a motion for summary
judgment and a supporting memorandum of law, attached to which
were three affidavits from purported "experts" stating the need for a
SEIS. On July 8, 1996, the FHWA moved to strike the affidavits and
other exhibits appended to the Greens' summary judgment motion.
The court by Order of August 9, 1996 granted the motion to strike,
finding that the plaintiffs' attempt to supplement the administrative
record with the affidavits was untimely and in violation of the pretrial
order.

On October 1, 1996, the district court granted defendants' July 3,
1996 motion for summary judgment2 as to all counts in the complaint.
By the same Order and accompanying Memorandum Opinion, the
court denied plaintiffs' motion for summary judgment. Plaintiffs take
the instant appeal from that decision.

II. Standards of Review

As to questions of law, including the district court's grant of sum-
mary judgment to defendants, review is de novo . Scarborough v.
Ridgeway, 726 F.2d 132, 135 (4th Cir. 1984). Summary judgment
here issued following the district court's review of an informal agency
decision. Thus, the "arbitrary and capricious" standard of district court
review under the Administrative Procedure Act ("APA"), 5 U.S.C.
§ 706(2)(A), applies to this court on review of a grant of summary
judgment. Overstreet v. Kentucky Central Life Ins. Co., 950 F.2d 931,
938 (4th Cir. 1991); United States v. Carolina Transfer Co., 978 F.2d
832, 835 (4th Cir. 1992). As to factual conclusions reached by the dis-
trict court, review is for clear error. Hendricks v. Central Reserve Life
Ins. Co., 39 F.3d 507, 512 (4th Cir. 1994).
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2 Defendants had received an extension of time from the court to file
the motion.

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III. The National Environmental Policy Act's Mandates

A. Supplemental Environmental Impact Statement

Section 102 (2)(C) of the NEPA, 42 U.S.C. 4332(2)(C) requires the
preparation of Environmental Impact Statements,"in every. . . major
Federal action[ ] significantly affecting the quality of the human envi-
ronment. . . ." Federal regulations interpreting the NEPA state, in per-
tinent part, that agencies:

          [s]hall prepare supplements to either draft or final environ-
          mental impact statements if . . . [t]here are significant new
          circumstances or information relevant to environmental con-
          cerns and bearing on the proposed action or its impacts.

40 C.F.R. § 1502.9(c)(1) (emphasis added).

Plainly, not every new circumstance is a "significant new circum-
stance" requiring a SEIS. Rather, as this court has stated, "`the new
circumstance must present a seriously different picture of the environ-
mental impact of the proposed project from what was previously envi-
sioned.'" Hughes River Watershed Conservancy v. Glickman, 81 F.3d
437, 443 (4th Cir. 1996) (emphasis added) (quoting Hickory Neigh-
borhood Defense League v. Skinner, 893 F.2d 58, 63 (4th Cir. 1990)).
Hughes requires only that agencies continue to take a "hard look" at
the environmental consequences of their proposed projects even after
preparation of an initial environmental impact statement; the case
does not stand for the proposition that any change to a project man-
dates the preparation of a SEIS. 81 F.3d at 443 (citing Marsh v. Ore-
gon Natural Resources Council, 490 U.S. 360, 374 (1989)).

Here, the route of the Smart Road was shifted a mere 750 feet
southward over the course of a two mile stretch in order to accommo-
date the endangered smooth coneflower. While certain other new
circumstances3 may have resulted from the modified route, they
hardly presented the "seriously different picture of the environmental
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3 Plaintiffs cited below as other"significant new circumstances" result-
ing from the slight modification in the Smart Road route: (1) noise
impacts to twenty-nine residences as opposed to the twenty-five cited in
the FEIS, (2) the relocation of six families rather than the two mentioned
in the FEIS, and (3) an increase from 120 to 140 acres of Agricultural
and Forestal land to be acquired for the project.

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impact" of the project necessary to demand the preparation of a SEIS.
Indeed, were the NEPA actually to require a SEIS when a modified
project's new environmental impact is patently insignificant, it ". . .
would render agency decisionmaking intractable, always awaiting
updated information only to find the new information outdated by the
time a decision is made." Marsh, 490 U.S. at 373.

Because the Smart Road's environmental impact remained virtu-
ally unchanged after the road's shifted alignment, the defendants'
decision to prepare an Addendum to the FEIS rather than a SEIS was
neither arbitrary, capricious nor contrary to the requirements of the
NEPA. Consistent with Hughes, supra, the defendants met their obli-
gation to continue to take a "hard look" at the environmental conse-
quences of the Smart Road when they issued the Addendum to the
FEIS.

B. The Adequacy of the Final Environmental Impact Statement

Plaintiffs allege that the defendants' analysis of the Smart Road's
impact on birds, wildlife, and plants was arbitrary and capricious
because the scientific data incorporated into the FEIS came from
atlases and other reference sources several years old at the time. Spe-
cifically, with respect to the bird data collected for the FEIS, the
Greens argue that data from an atlas was between five and ten years
old at the time of the FEIS. Reliance by the defendants on such
slightly dated information, however, cannot be said, as a matter of
law, to have been irrational, arbitrary or capricious. The plaintiffs
adduced no evidence below that local bird populations had changed
so drastically between publication of the data in the reference sources
and that data's incorporation into the FEIS as to render the data inher-
ently unreliable or archaic.

With respect to wildlife, the plaintiffs do not point to any actual
effect on fauna that was not considered in the FEIS. 4 Finally, after
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4 In a November 6, 1991 letter to the defendants, for example, the FWS
comments that no further explication of the area's well-known wildlife
is required. The letter was incorporated into the FEIS at section VII. Of
course, once the existence of the endangered coneflower later was made
known to defendants, the Addendum was appended to the FEIS. As well,
two alternative routes for the road, alternatives 7 and 10, which might
have impacted endangered species of local fish in the Roanoke River, in
fact, were not chosen.

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issuance of the FEIS and after the discovery of the coneflower, no
fewer than four additional plant surveys were conducted. These addi-
tional plant surveys, likewise, cannot be said to have been inadequate,
as a matter of law.

C. Plaintiffs' Untimely Attempt to Supplement
           the Administrative Record

This court defers to the right of a district court to set and enforce
the discovery deadlines. Here, the court established May 8, 1996 as
the deadline for the parties to submit evidence to supplement the
administrative record. The Greens violated the February 23, 1996
scheduling order when they filed the three affidavits at issue on June
10, 1996, more than one month late. For this reason, the district court
acted within its sound discretion when it granted defendants' motion
to strike this untimely submitted additional evidence.

IV. Conclusion

For the foregoing reasons, we hold that the district court properly
granted summary judgment in favor of defendants and against plain-
tiffs on all NEPA claims. It is so ordered.

AFFIRMED

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