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HomeMy WebLinkAbout20110023_Other Agency Comments_20110329\ ?' (9) IN REPLY REFER TO Regulatory Division Subject: Action ID. 199303077 Dr. Gregory J. Thorpe, Ph.D. l L- C)v23 DEPARTMENT OF THE ARMY c,? WILMINGTON DISTRICT, CORPS OF ENGINEERS l Washington Regulatory Field Office Post Office Box 1000 Washington, North Carolina 2788 M March 25, 2011 Environmental Management Director, PDEA North Carolina Department of Transportation 1548 Mail Service Center Raleigh, North Carolina 27699-1548 Dear Dr. Thorpe: Please reference the March 16, 2011, Merger 01 Design-Build question and answer meeting and the subsequent March 17, 2011, e-mail from Beth Smyre requesting comments on the Environmental Permits Scope of Work that is currently included in the draft design-build Request for Proposal (RFP) for the NC 12 Replacement of Herbert C. Bonner Bridge, TIP No. B-2500; Dare County; North Carolina. During the meeting it became apparent there was considerable confusion over issues relating to SAV habitat, SAV presence, SAV survey requirements, SAV mitigation, and work restrictions relating to possible in-water work moratoriums, etc. -This proposed project has been ongoing for the last 21 years because of multiple highly controversial and complex issues. Over that time there have been many alternatives studied, major changes in alternative locations and numerous Environmental Documents. Because of.this long process, the many changes, the necessary approvals required from several Federal and State agencies, and the Corps legal requirements as a major permitting agency, we want to insure that all the necessary steps have been satisfactorily completed prior to permit submittal so that no unexpected delays are realized. In regards to that we have the following comments: 1. As the Lead Federal Agency for this project, it appears FHWA has, for the most part, satisfied the requirements of the National Environmental Policy Act (NEPA) and the requirements set by the Council on Environmental Quality (CEQ) (40 CFR [Code of Federal Regulations] 1505.2). However, as we continue to move forward as a cooperating agency with separate permitting authority, we want to insure that the requirements as expressed in 33 CFR parts 320-324, and the applicable statutes have been fully satisfied. These include the Fish and Wildlife Coordination Act; the National Historic Preservation Act; the Endangered Species Act; the Coastal Zone Management Act; and the Magnuson-Stevens Fishery Conservation and Management Act. ' 2. Other issues identified in the past that still need approval or continued coordination to keep the project moving forward are: a) the permitting of terminal groin, b) right of way acquisition on Pea Island for the southern approach of the bridge, c) special use permits from FWS and the NPS, d) mitigation approvals for SAV and wetland impacts, and, e) storm water approval. 3. Due to its long and complicated planning history and the process by which different Federal Agencies satisfy their statutory requirements, we believe that the requirements found in the Magnuson-Stevens Fishery Conservation and Management Act (EFH) may still be unresolved. Project Commitments were made in regards to NOAA`s National Marine Fisheries Service (NMFS) responsibilities under Section 7 of the Endangered Species Act but the commitments made in regards to EFH are unclear. Most of NMFS's comments for the project were based on the Phased Approach/Rodanthe Bridge Alternative. Their emphasis was on impacts to the surf zone and near shore ocean of phases II-IV. It is unclear to us if the NMFS comments made on the phased approach also included the parallel bridge alternative as at that time they still expressed their strong support for the Pamlico Sound Bridge Alternative because it best supported the purpose and need for the project with the least impact to important estuarine and marine resources. To our knowledge NMFS did not comment on the Environmental Assessment, signed in May, 2010, which changed the Preferred Alternative from the Phased Approach to the Parallel Bridge Corridor with NC 12 Transportation Management Plan. On pages 2-23 and 2-28 of the EA, it states that in a letter dated October 27, 2008 from NOAA Fisheries, NOAA did not object to the finding that the overall effect of the project on EFH-was not anticipated to be adverse. However, we have been unable to find any documentation that NMFS presented EFH conservation recommendations to NCDOT or FHWA beyond what was stated in the above mentioned letter or assurances that the requirements of the Act have been fully satisfied. In NMFS's October 27, 2008 letter they summarize that they believe direct impacts to SAV and estuarine marsh (as it was relating to the Pamlico Sound Bridge Alternative) could be adequately addressed through sequential mitigation. Based on this, we believe NMFS would have the same requirements for impacts to SAV's and estuarine marsh for Phase I of the current preferred alternative. Regardless of the consultation process that NC DOT and FHWA utilized for this project, that documentation that we currently possess, including the referenced EA, do not indicate that the requirements of the Act have been satisfied. 4. In the event EFH concerns have not been addressed, we would have no choice but to initiate separate consultation with NMFS to ensure our statutory requirements are met. It is our recommendation that FHWA and NCDOT update the 2008 EFH Assessment to focus exclusively on the impacts to EFH for Phase 1 of the project. At which time future phases of the project are known, a separate EFH Assessment would have to be completed for each phase. Given the uncertainty regarding this issue, we believe it would be beneficial to schedule a meeting between NCDOT, FHWA, NMFS, and the Corps to discuss this matter and resolve it in the most efficient and expeditious way. We believe this would also expedite the Design-Build process by providing the 3 design-build contractors with adequate information on which to base their bids. As a major permitting and cooperating agency, we appreciate the opportunity to coordinate with you prior to the submission of the permit application. The Wilmington District is committed to providing the highest level of support to the public. To help us ensure we continue to do so, please complete the Customer Satisfaction Survey located at http://pert.nwp.usace.army.mil/survey.html to complete the survey online. If you have any questions regarding our comments, please do not hesitate to contact me at the Washington Regulatory Field Office, telephone (910) 251-4558. Sincerely, 1W) V'Xv. . William J. Biddlecome Regulatory Project Manager Copies Furnished: Renee Gledhill-Earley North Carolina State Historic Preservation Office 4617 Mail Service Center Raleigh, North Carolina 27699-4617 Mr. Doug Huggett Division of Coastal Management North Carolina Department of Environment, And Natural Resources 400 Commerce Avenue Raleigh, North Carolina 28557-3421 Mr. Ron Sechler National Marine Fisheries Service 101 Pivers Island Road Beaufort, North Carolina 28516 Mr. Pete Benjamin U.S. Fish and Wildlife Service Fish and Wildlife Enhancement Post Office Box 33726 Raleigh, North Carolina 27636-3726 3 Mr. Chris Militscher U.S. Environmental Protection Agency C/O FHWA, Raleigh Area Office 310 New Bern Avenue, Room 206 Raleigh, North Carolina 27601 Mr. Travis Wilson Eastern Region Highway Project Coordinator Habitat Conservation Program 1142 I-85 Service Road Creedmoor, North Carolina 27522 Mr. Brian Wrenn Water Quality Section North Carolina Division of Environment and Natural Resources 1650 Mail Service Center Raleigh, North Carolina 27699-1650 Ms. Jennifer Derby, Chief Wetlands Section-Region N Water Management Division U.S. Environmental Protection Agency 61 Forsyth Street, SW Atlanta, Georgia 30303 Mr. Clarence Coleman, PE Federal Highway Administration 310 New Bern Avenue, Suite 410 Raleigh, North Carolina 27601-1418 Mr. Mike Murray U.S. Department of Interior National Park Service Cape Hatteras National Seashore 1401 National Park Drive Manteo, North Carolina 27954 Mr. Mike Bryant U.S, Fish and Wildlife Service Pea Island National Wildlife Refuge P.O. Box 1969 Manteo, North Carolina 27954 4 r.