20111003 Ver 1_Public Notice Comments_20120409

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Regulatory Division
Action ID No SAW 2010 02125
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT CORPS OF ENGINEERS
Washington Regulatory Field Office
2407 West 5 h Street
Washington North Carolina 27889
April 2012
NCDOT /Dr Greg Thorpe
Project Development and Environmental Analysis
1598 Mail Service Center
Raleigh, North Carolina 27699 1598
Dear Dr Thorpe
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Please reference your application seeking Department of the Army (DA) individual permit
authorization to impact approximately 6 76 acres of DA jurisdictional wetlands and 851 linear
feet of surface waters associated with NCDOT TIP No R 3307 Gallants Channel Bridge related
approaches and upgrades to US 70 located near the town of Beaufort Carteret County North
Carolina The purpose of this correspondence is to provide you with agency and private citizen
comments we have received on the proposed project (attached)
Our administrative process provides you with an opportunity to propose a resolution and /or
rebut any and all objections before a final decision is made In this regard I would appreciate
receiving any comments that you have regarding the attached correspondence on or before April
23 2012 If you intend to comment please give your immediate attention to this matter so
processing of your permit can be expedited
Thank you for your time and cooperation Please submit all comments to Tom Steffens of the
Washington Regulatory Field Office 2407 W 5t" Street, Washington North Carolina 27889
Should you have any questions please feel free to contact Mr Steffens by telephone at (9 10)
251 4615
Sincerely
I Digitally signed by
STEEPENS THOMAS A DN c=US oHO US Govern $473
Government ouDoD
NCRUM 1284706273 °con =STEFFENS THOMAS ANCRUM 1284706273
rr Date 2012 04 09 14 07 37 04 00
Thomas Steffens
Regulatory Project Manager

From Philip S Kemp Jr
To Steffens. Thomas A SAW
Subject Gallants channel bridge and bypass (TIP R 3307)
Date Tuesday April 03 2012 9 58 34 PM
Good morning
I am a professor with Carteret Community College and a resident of Carteret County I teach courses In
the discipline of Aquaculture Technology and support the development of new aquaculture businesses
as well as aquatic research in North Carolina I wish to express my support for the proposed Gallants
channel bridge and bypass (TIP R 3307)
I
I live in Morehead City and have a home and a dock with boats on the Newport River At CCC we have
a dock and a boat on Bogue Sound I use the roadway transportation route to and through Beaufort for
business (with and without students) and personal travel to get to Beaufort area and to the downeast
communities of Carteret County for the purposes listed previously I also use the waterway
transportation route through the Gallants Channel by small motorboat and by sailboat both for business
and for personal reasons
I have sailboats with mast heights of 20 ft and 45 ft which are tall enough to require dropping the
mast or opening the Gallants Channel bridge to traverse the channel to Beaufort As a result I plan my
route from Newport River to Beaufort through the high rise Atlantic Intra coastal Waterway (ICW)
bridge and around Radio Island rather than going through Gallants Channel waterway and waiting for
the bridge to open, which causes roadway traffic to wait as well My vessel is not a tall masted, ship
and consequently has neither the concerns for height nor draft as most tall masted ships have
Nevertheless even going into and out of Gallants Channel from the ICW and Newport River I still have
to be very careful of the shoals in the approach to and inside Gallants Channel My vessel is not tall
enough to be concerned with the high voltage electric transmission lines across Gallants Channel
however any tall masted ships traveling this route would have that concern
I have been held up on the roadway with and without students, by the opening of the drawbridge
many times and wish to support the construction of a replacement for the current draw bridge I am
aware of differing opinions regarding the type of replacement bridge that should be built
The argument for a replacement bridge to be a draw type bridge is based on the assumption that
sometime in the future there may be tall masted ships that would use marine services accessible only
by this route To address that I would like to point out that in the past when some tall masted ships
visited this area they did not travel through the current drawbridge to inside areas but stayed in the
area of the Morehead City port and shipping channel Any such ships wishing to travel through to inside
areas for marine repair services in the future would still be limited by draft due to the shoals and
narrow waterways in the Newport River and ICW areas as well as by height due to the high voltage
electrical transmission power lines across Gallants Channel as I previously explained
i
Northward from Beaufort along the ICW there is another 65 ft vertical clearance bridge at Core Creek
which would limit tall masted vessels to any passage further north along the waterway To reach
those areas requires ships to enter NC inland waters through Ocracoke Inlet as they currently do now
The total waterway distance between the Gallants Channel bridge and Core Creek bridge is
approximately 7 8 nautical miles I contend that many tall masted ships desiring marine services in this
area could lower the tops of their masts in the MHC port area to a height less than 65 ft and proceed
through fixed bridges to repair services located in Core Creek ICW area as they currently do now
Another reason for tall masted ships to visit and stay in the area may be to berth at the NC Maritime
Museum annex docks, however as stated previously this could be accomplished with facilities available
in the port and shipping channel areas of Morehead City As a result I would argue that replacing the
current drawbridge with another drawbridge is unnecessary and would add unreasonable and
unnecessary long term maintenance and personnel costs to the project
I ask that you take these reasons into consideration as you complete your permitting process to
approve this important R 3307 project

Sincerely
Philip S Kemp Jr
2333 Shore Drive
Morehead City NC 28557

To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to xpeEs my support for the proposed
Gallants channel bridge and bypass (TIP R 3307) Llwe in the eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you
�c) c� v
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To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to express my support for the proposed
Gallants channel bridge and bypass (TIP R 3307) I m he eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you

To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to express my support for the proposed
Gallants channel bridge and bypass (TIP R -3307) I live in the eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you
CA Y,

To whom it may concern
As a resident of Carteret County and Beaufort NC I wiexpress my support for the proposed
Gallants channel bridge and bypass (TIP R -3307) 11a,'e in ttie eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you
3 7
/VC Z 5s 5 �'

To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to express my support for the proposed
Gallants channel bridge and bypass (TIP R 3307) I live in the eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you
CA-

To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to express my support for the proposed
Gallants channel bridge and bypass (TIP R 3307) I 1n the eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you
CX
,a

To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to express my support for the proposed
Gallants channel bridge and bypass (TIP R -3307) I Ir"i'n the eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you

To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to express my support for the proposed
Gallants channel bridge and bypass (TIP R 3307) I k '1n" he eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles to emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you

To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to express my support for the proposed
Gallants channel bridge and bypass (TIP R 3307) I live in the eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you
L � ►�'� a� v� r �. c" �Z iJ
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To whom it may concern
As a resident of Carteret County and Beaufort NC I wish to express my support for the proposed
Gallants channel bridge and bypass (TIP R 3307) I live in the eastern part of the county and
have to use the current draw bridge to Beaufort all the time Traffic is very heavy on the bridge
and traffic is backed up at peak driving times Bridge openings make the backups worse and
cause accidents Bridge openings also interfere with fire and rescue vehicles in emergencies
The proposed bridge will allow me and other citizens down east to get to Morehead City much
faster without having to drive through downtown Beaufort saving us time and fuel
Please approve the permits to allow the bridge project to move forward
Thank you
U 130-

608 Ann Street
Beaufort, NC 28516
Tom Steffens
Washington Regulatory Field Office
2407 W 5th St
Washington NC 27889
Dear Sir
KE.CEIVED
MAR 2 2 2012
" 5 r "/" Ci )RPS ENG
s12 "4,91 1 ttOi V Fid 01,
I wish to express my strongest support for the State requested CAMA permit for the
Gallants Channel Bridge project (TOP R 3307) 1 am a 30 year resident of Beaufort
and own two business in town I have been active on the governing board of the
Beaufort Historic Association for two decades and have been a member of the Beaufort
Historic Preservation Commission for 7 years serving 2 years as Chairman As a long
term and actively involved citizen of this town I have a clear view of the needs and
interests of our community It is important that a project which greatly enhances the
lives safety and historic preservation of our citizens and community not suffer from the
more selfish and narrow interests of a few
Don t let the greater good of our town and the county of Carteret be held captive by the
demands of a few persons who happen to prefer sailing vessels with extremely tall
masts like the single tall ship that visaed the NC Port in the unsuccessful 2006 Pepsi
America Sail That event is likely never to happen here again Nor should people who
happen to like the current location of the Museum s sailing camp hold us hostage My
children all attended this camp and I am certain that the relocation solution that the NC
DOT and the Maritime Museum are working on will be fine And the Rachel Carson
preserve and Shackleford banks are located nearly 1 or 3 miles (respectively) from the
bridge project hardly in harms way
This bridge and bypass project is vital to the safety and well being of the citizens of
Beaufort and the Down East area and I have laid out the reasons ir wetter I submitted
to the Carteret County News Times published October 28 2011 1 have attached that
letter below to more fully express the economic and civic value of this bridge and
bypass project
In addition to those points in the letter I would like to emphasize two points
The current bridge is 60 years old and failing It must be replaced There is no
amount of teeth gnashing that will change this fact The bridge log for 2010 showed
3036 vessels passed through the current draw bridge causing delays for 354 311
vehicles The latest 2010 traffic count of vehicles crossing the bridge show 20 000
vehicles use this bridge daily This is 18% more traffic per average day than US 64
by pass carries into Dare county (NC DOT 2010 figures) on the long completed 4

lane superhighway from Raleigh to the Outer Banks We are suffering from this
bottleneck
2 The current bridge funnels these 20 000 daily cars on US 70 directly into the town of
Beaufort requiring a hard left red light turn to stay on US 70 (Cedar and Live Oak
Streets This heavy traffic splits in two the National Historic District which
encompasses the downtown area from the waterfront across US 70 and north to
Town Creek This traffic runs adjacent to the Beaufort Historic District which
includes the Carteret Courthouse It is a disgrace that all this traffic runs through this
small historic town through or adjacent to our Historic Districts It degrades the
community and reduces the incentives for historic preservation Who wants to invest
tens or hundreds of thousands of dollars in a home restoration when your front yard
view is lumber trucks and delivery vans speeding by a mere 20 feet away? Further
the historic black community lies principally on the north side of this US 70 corridor
while the historic white community lies on the south side This busy highway has
created a wrong side of the railroad tracks situation in our small town Moving this
heavy traffic onto the proposed bridge and bypass will heal this scar dividing our
community and pedestrian ways and bike paths will replace the urban road that
currently is Cedar Street Mt Zion AME Church will no longer have to cone off the
north lane of Cedar Street every time they have a funeral People will be able to
walk from home to work from office to the courthouse across Cedar Street without
taking their lives in their hands
Please rapidly approve the necessary permits for this important bridge and bypass to be
finished Thank you for your consideration of these points
Sincerely
Freder k McCune
k
October 27 2011
TO Editor CCNT
The editorial and letter in last Friday s paper about the Gallants Channel project
contained so much misinformation and illogical conclusions that one scarcely knows
where to begin to respond
First the $73 million project is not dust for a bridge but for a new bridge over Gallants
Channel to replace the worn out draw and a complete 4 lane bypass around Beaufort
The bypass is the critical component to this project Currently 20 000 vehicles a day
(NC DOT figures) thunder through Beaufort over the current draw bridge and over

Cedar and Live Oaks streets This heavy traffic includes loaded 18 wheeler tractor
trailers and heavy delivery trucks One look at this heavy traffic corridor is all you need
to see it is the least attractive part of Beaufort This US highway splits the National
Historic District and separates the historically black community from the rest of
downtown Pedestrians take their lives in their hands trying to cross the highway to
visit attorneys go to the county or town offices or go to churches or stores
Most of this traffic is not stopping in Beaufort it is through traffic headed east and west
The bypass will move this heavy traffic flow around our historic town cutting down travel
time from Down East to points west and back This is an excellent thing for Beaufort
and for Down East commuters
With only a little imagination you can see Cedar Street returned to a tranquil two lane
road with water access at the end where the old draw was located There would be
room for bike paths benches and green areas All of downtown Beaufort would be
reunited in a pedestrian and bike friendly environment
Downtown businesses would prosper as Beaufort is a destination for visitors It does
not rely on 20 000 vehicles a day blasting through to peddle gasoline and fast food
The closed fast food store and gas stations in downtown Beaufort bear witness to this
fact The notion that running heavy trucks through our historic town is good for
business is absurd on its face
Frankly I am tired of hearing a certain few people who have no business interests in
downtown Beaufort asserting that the bypass will hurt Beaufort business I own two
businesses downtown so I have some expertise in the matter and I am here to tell you
that the bypass will be good for our businesses and our town You only have to visit
recently bypassed Edenton NC to see that it is a thriving destination town Imagine the
positive effects Beaufort too will experience with more quiet more green space more
non - automotive access and a pedestrian friendly Cedar Street
Now the bridge I don't care if the new bridge is 45 feet with a draw or 65 feet without
Heck it could be a gold plated bridge with gargoyles if money was no object But the
fact of the matter is that everything has a cost and unless we suddenly get a hundred
million of that elusive Federal stimulus money this thing will be built with an eye to cost
control
Here s the number $25 million That is the number the DOT stated would be the
additional cost for a 45 foot bridge with a draw built into it versus a fixed 65 foot span
Now here's what the fixed span opponents don t like talking about Progress Energy
also crosses Gallants Channel with 100 000 volt power lines which are 87 feet above
the water Nothing over 77 feet is permitted near these high voltage lines or lethal
arcing could occur
So the proposed 65 foot fixed span is only 12 feet lower than the maximum
permitted height we currently have That s over $2 000 000 per foot of additional

clearance to build the 45 foot bridge with a draw Is that worth its And a 45 foot draw
bridge still is a draw bridge with the same problems the existing draw has as far as
allowing emergency and life saving vehicles to pass unimpeded
Further the editorial argues that the 65 foot bridge will kill jobs since tall masted boats
(the very few with masts between 65 feet and 77 feet) will not be able to pass into the
Newport River Well where are all these boats? Why don t we have a robust marine
business of 75 foot masted boats right now? We have had a 77 foot clearance for
decades yet these imagined boats are still not here' I don t know of any tall masted
boats that have needed to go through the channel since the Tall Ships debacle in 2006
That event is highly unlikely to ever be repeated so claiming that this extra 12 feet of
clearance is vital to a unlikely hypothetical event is just silly
And even if say 5 new jobs were created to handle tnese 65 to 77 foot masted boats
the extra $25 million required to build the draw bridge would work out to $5 000 000
PER JOB That kind of money makes the Federal stimulus package look cheap
In fact the new bridge and bypass is a job creator Jobs will be created to reconfigure
Cedar and Live Oak streets New sidewalks and green spaces will be created
Buildings will be built to take advantage of proximity to the courthouse and the
downtown business district We will see real downtown improvements creating real
jobs
And finally, there s the port The editorial veers into hand wringing about increasing port
tonnage and 65 000 trucks a year Could this be the real issue behind the issue ? It
seems that the fixed bridge is being fought by people who don t like anything about the
port It is the height of hypocrisy to decry the bridge as a Jobs killer but then attack the
port which actually has real Jobs today and could provide many more
am not a fan of the port It is ugly and it would probably be better if turned into a
convention/water access /cruise ship area or something else that generates Jobs and tax
revenues But the port is here and it does have a large payroll Trying to throttle it or
shrink it by attacking the bridge project is very anti Job in anvone s book If you don t
like the port it would be more honest to actually go fight the port and turn all that
waterfront into something better for Carteret County rather than using the Gallants
Channel bridge as a proxy for anti port sentiments
I have a letter from then State Senator Bev Perdue agreeing with me that we need to
get the Gallants Channel project going The date on the letter is 1999 and we are still
waiting for our bridge and bypass Beaufort has desperately needed this project to
create jobs to heal our Historic District to rejoin our communities and to improve traffic
flow The 65 foot bridge and bypass is the best compromise in these tight budget
times Let s get this important project done as soon as possible to make Beaufort a
better place
Frederick McCune

USFWS Comments txt
From Gary_Jordan @fws gov
Sent Monday March 05 2012 10 37 AM
To Steffens Thomas A SAW
Cc Travis Wilson @ncwildlife org
Subject PN SAW 2010 02125 Carteret County R 3307
Ifor,
I have reviewed this PN and I have no objections to the issuance of the
permit As you know I provided input throughout the Merger Process I don t
have any further concerns or comments
Gary Jordan
Fish and Wildlife Biologist
US Fish and Wildlife Service
PO Box 33726
Raleigh NC 27636 3726
Phone [phone] ext 32
Fax [phone]
garyjordan @fws gov
Page 1

MEMORANDUM
TO Tom Steffens Corps of Engineers
THROUGH Anne Deaton, DMF Habitat Section Chief`
FROM Jessi Baker DMF Marine Habitat Biologist
SUBJECT US 70 Improvements from Radio Island to Olga Road, Carteret County
DATE March 28 2012
The North Carolina Division of Marine Fisheries (DMF) submits the following comments
pursuant to General Statute 113 131 DMF has reviewed the revised CAMA Major permit
application from the NCDOT regarding the proposed US 70 Improvements including the
replacement of the bridge over Gallants Channel
The in water construction of this project is not scheduled to be completed outside of a
moratorium The in water work moratorium utilized by DMF is in place to protect fish species
during the most productive portion of their growing season Dredging during this time period
would result in significant adverse impacts to the fish and fish habitats in this area
DMF will approve this project only if the requirement of the in water work moratorium of April
1" to July 31St is included as a permit condition Please feel free to contact Jessi Baker at (252)
808 8064 or iessi baker @ncdenr gov if you have any further questions or concerns
5285 Hwy 70 West Morehead City North Carolina 28557
Phone [phone] FAX [phone] Internet www ncdmf net
Ar Eqd I Oppor um(} 1 A firmahve Action Emolo/er
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Not thCaro tna
Naturalll

Date 3/712012 Due Date 3/31/2012 County CARTERET \
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Jessd O'Neal j Kevin Hart
APA 03 2012 LLL..III
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\ From Jeenno Hardy !ON
Habitat Protection Section " \
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Comments to this project are below or attached `
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SIGNED \ � DATED � f Z,
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NQ Division of Mauve Fisheries Habitat Protection 3ectror\ NorthCalobva
5285 fiwy 70 \iffiest 106 head Oty, Notth Carolina 285 - 7 t , "G �CI
Phone ,252 80MG66 � FAX [phone] Intemet viww nedinf net
A4 Cquat Opppo)isafijty J Affit -Mauve Action Cmployes —W / Aec;ydel i 10 /4 pos GanrurnO P rr

O t0T OF co *4
UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
° NATIONAL MARINE FISHERIES SERVICE
Southeast Regional Office
263 13th Avenue South
St Petersburg Florida 33701 5505
[phone] FAX [phone]
http //sero nmfs noaa gov/
April 2012
(Sent via electronic mail)
Colonel Steven A Baker Commander
US Army Corps of Engineers Wilmington District
69 Darlington Avenue
Wilmington North Carolina 28403 1398
Attention Tom Steffens
Dear Colonel Baker
F /SER4 RS /pw
NOAA s National Marine Fisheries Service (NMFS) reviewed Action ID No SAW 2010 02125
dated March 1 2012 The North Carolina Department of Transportation (NCDOT) proposes to
increase the traffic carrying capacity of US 70 through the Town of Beaufort by replacing the
existing drawbridge over Gallants Channel and related approaches with a longer high rise fixed
bridge and improving US 70 to a multilane facility The proposed 3 395 foot bridge would carry
a four lane divided roadway with 12 foot travel lanes, 8 foot bridge offsets a 4 foot raised
island and a 1 foot offset on each side In addition improvements to Turner Street include a 40
foot three lane curb and gutter section with two 12 foot travel lanes and a 12 foot center turn
lane A 585 foot bridge with 8 foot offsets is proposed to replace the 61 foot box culvert on
Turner Street Total project length is 3 6 miles The Wilmington District s initial determination
is the proposed project would adversely impact essential fish habitat (EFH) or associated
fisheries managed by the South Atlantic Fishery Management Council Mid Atlantic Fishery
Management Council or NMFS As the nation s federal trustee for the conservation and
management of marine estuarine and diadromous fishery resources the following comments
and recommendations are provided pursuant to the authorities of the Fish and Wildlife
Coordination Act and the Magnuson Stevens Fishery Conservation and Management Act
(Magnuson Stevens Act)
Essential Fish Habitat in the Project Area
The site of the proposed project includes estuarine emergent vegetation marsh edge and
intertidal mudflats the South Atlantic Fishery Management Council (SAFMC) identifies these
habitats as EFH for white shrimp (Litopenaeus setiferus) and brown shrimp (Farfantepenaeus
aztecus) Coastal salt marshes are EFH for these species because larvae and juveniles
concentrate and feed extensively within these habitats Consequently growth rates are high and
predation rates are low which makes these habitats effective nursery areas for shrimp The
� t
7 �
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�'ktM OF

waters of Town Creek and Gallant Channel are not officially designated as a primary nursery
area however the habitats within the project area provide nursery services SAFMC provides
detailed information on types and locations of EFH in a comprehensive amendment that applies
to all fishery management plans prepared by SAFMC
Other species of commercial recreational or ecological importance found in the project area
include red drum blue crab Atlantic croaker spot Atlantic menhaden striped mullet and
weakfish Several of these species are prey for fish managed by SAFMC (e g king mackerel
Spanish mackerel and cobra)
Impacts to Essential Fish Habitat
Based on the information provided in the public notice and during NCDOT Merger Team
meetings NMFS believes NCDOT has adequately avoided and minimized impacts to wetlands
that support NOAA trust resources The unavoidable impacts to coastal habitats would be offset
by 1 56 acres of on site restoration from causeway removal on Turner Street While NMFS
supports the approach we cannot conclude it is acceptable until we have had an opportunity to
review the monitoring plan that will gauge whether the performance of the mitigation is meeting
restoration targets Compensatory mitigation for the unavoidable impacts to riparian non
riparian and isolated wetlands and streams would be accomplished through the North Carolina
Ecological Enhancement Program NMFS will abstain from commenting on this portion of the
project
EFH Conservation Recommendations
NMFS finds the proposed project would adversely affect EFH and federally managed fishery
species Section 305(b)(4)(A) of the Magnuson Stevens Act requires NMFS to provide EFH
conservation recommendations when an activity is expected to adversely impact EFH Based on
this requirement NMFS provides the following
EFH Conservation Recommendation
Authorization of the project shall be held in abeyance until NMFS has reviewed and approved a
detailed mitigation plan that includes monitoring that will be done to gauge whether causeway
removal on Turner Street is generating sufficient benefits to offset the impacts from replacing the
drawbridge and realigning the highway
Section 305(b)(4)(B) of the Magnuson Stevens Act and its implementing regulations at 50 CFR
600 920(k) requires your office to provide a written response to our EFH recommendations
within 30 days of receipt If it is not possible to provide a substantive response within 30 days
in accordance with our findings with your Regulatory Functions Branch, an interim response
should be provided to NMFS A detail response must then be provided prior to final approval of
the action Your detail response must include a description of measures proposed by your
agency to avoid, mitigate or offset the adverse impacts of the activity If your response is
inconsistent with our EFH conservation recommendations your must provide a substantive
discussion justifying the reasons for not following the recommendation The detail response
should be received by the NMFS at least ten days prior to final approval of the action

Thank you for the opportunity to provide these comments Related questions or comments
should be directed to the attention of Mr Ronald Sechler at our Beaufort Field Office 101 Pivers
Island Road Beaufort North Carolina 28516 9722 or at [phone]
1616
COE Thomas A Steffens @usace army mil
USFWS Pete _Benjamin @fws gov
NCDCM Doug Huggett@ncmail net
EPA Fox Rebecca @epa gov
SAFMC Roger Pughese @safmc net
F /SER4 David Dale @noaa gov
F /SER47 Ron Sechler @noaa gov
3
/ for
Sinnccerely/
f e;U �t/A
Virginia M Fay
Assistant Regional Administrator
Habitat Conservation Division

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET SUITE 220 Facsimile 919 929 9421
CHAPEL HILL NC 27516 2356
March 15, 2012
Via US and Electronic Mail
Mr Stephen Lane
N C Dept of Natural Resources
Division of Coastal Management
400 Commerce Avenue
Morehead City, NC 28557
stephen lane @ncdenr gov
RE R -3307 NCDOT Application for CAMA Major Development Permit for Gallants
Channel Bridge/Beaufort Bypass
Mr Lane
Please accept these comments on R 3307, the Gallants Channel Bridge Beaufort Bypass
( "Beaufort Bypass') portion of the Super 70 corridor The Southern Environmental Law Center
submits these comments on behalf of the North Carolina Coastal Federation and the Cypress
Group of the North Carolina Sierra Club As described in more detail below, the Division of
Coastal Management should deny the North Carolina Department of Transportation s
( "NCDOT ") permit application because it segments one portion of the larger project for review
and fails to adequately address the complete environmental effects of the overall project
The Beaufort Bypass is a segmented portion of a larger project
The Bypass is one part of a larger project, and its environmental impacts can only be
understood in that context The full project is designed to create a 4 lane highway from north of
Havelock to the Morehead City port The project begins north of Havelock with the proposed
Havelock Bypass, the project then continues with the Northern Carteret Bypass and completes
with the Beaufort Bypass currently under consideration in this CAMA permit These three,
interdependent projects together form one piece of the larger "Super 70" highway vision that
aims to improve the US 70 corridor from Raleigh to Morehead City
The Havelock Bypass portion of the project is currently being actively studied by
NCDOT SELC submitted comments on the recent Draft Environmental Impact Statement
prepared for that project highlighting the flaws and shortcomings of the NCDOT's analysts
The comments, which are attached and incorporated here by reference, highlight the connection
between the Havelock Bypass, Northern Carteret Bypass, and the Beaufort Bypass SELC
Havelock Comments at 20 -23 (Nov 21, 2011) The Beaufort Bypass, and its environmental
effects, can only be properly evaluated in that context
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NCDOT's scant Application reflects this segmentation The Application states that the
purpose of this portion of the freeway is "to increase the traffic carrying capacity of US 70
through the town of Beaufort " NCDOT Application for CAMA Permit at 1 (Nov 9 2011)
(emphasis added) ( "App ") To do so, it proposes the construction of a "4 -lane divided roadway"
that will terminate north of Beaufort on existing Highway 70 Unsurprisingly, the Northern
Carteret Bypass s eastern terminus, as currently estimated on the attached Super 70 Corridor
map, would align with the eastern terminus of the Beaufort Bypass and serve the Corridor's
stated vision of "transform[ing] US 70 into a freeway from Interstate 40 to the coast "
Bypassing Beaufort, rather than serving the town as the current bridge does is logical
only if both the Havelock Bypass and Northern Carteret Bypass are assumed to be built
Otherwise funneling port traffic away from US 70 west to existing US 70 east of Beaufort or to
NC 101 is illogical NCDOT's Maritime Study admits as much, stating that "[a]fter construction
of the Gallants Channel Bridge, there would be an opportunity to follow NC 101 but this
roadway is a rural two lane road and would not effectively reduce travel time NCDOT NC
Maritime Strategy Draft Final Report at 18 (Feb 15, 2012) ( "Maritime Strategy') Until the
Northern Carteret Bypass and Havelock Bypass are complete, "all traffic would have to continue
through Morehead City " Id In short, standing alone, the Beaufort Bypass serves neither
Beaufort nor its intended purpose as part of Super 70
When viewed within the context of the Super 70 Corridor in Carteret County, the
Application's claim of independent utility is not only inaccurate, it contradicts the overall project
purpose Restating the federal regulation the Application states that "[t]he project has logical
termini and independent utility " But the Super 70 "vision' is a "freeway" connecting Morehead
City and Raleigh Even considering Carteret County in isolation, the Beaufort Bypass cannot
meet that vision without both the Havelock Bypass and the Northern Carteret Bypass Without
those two projects, the Beaufort Bypass would serve to direct heavy port traffic to rural highways
that — according to NCDOT — cannot accommodate that use, indicating that without the two
additional parts of the complete project, the eastern point of the proposed 4 -lane freeway is not a
logical terminus, and that the Beaufort Bypass has no independent utility
Similarly NCDOT's assertion that "[t]he project is usable and a reasonable expenditure
of funds even if no additional transportation improvements are made in the area" is
unsupportable The Beaufort Bypass simply cannot serve the purpose that it is designed and
intended to serve under the Super 70 "vision" without the Havelock Bypass and Northern
Carteret Bypass NCDOT's recent Maritime Study clearly states that the three projects are
interdependent, noting that "[t]he Gallants Channel Bridge project that is now underway will
provide an alternative route to US 70," but that "[u]ntil the Northern Carteret Bypass and
Havelock Bypass are completed, this link would not be a viable alternative route to and from
MHC " Maritime Strategy at 18
Finally, by moving forward with the Havelock Bypass and Beaufort Bypass in advance of
the Northern Carteret Bypass, NCDOT has ensured that these projects will "restrict consideration
of alternatives for other reasonably foreseeable transportation improvements " App at 3, 23
C F R § 771 111(f) Both the Havelock and Beaufort bypasses have been designed in a manner
that assumes the development of the Northern Carteret Bypass in line with the NCDOT's
2

preferred route The two projects, if approved and constructed as proposed, would "stand like
gun barrels pointing" at the wetlands, wildlife, and national forest land in the path of the
Northern Carteret Bypass Named Individuals of the San Antonio Conservation Soc y v Tex
Highway Dep't, 400 U S 968 971 (1970) In addition, the commitment that building the
Beaufort Bypass makes to truck based traffic from the port limits consideration of other options
for managing port traffic, including upgrades to existing US 70 combined with rail
improvements See SELC Havelock Comments at 29 33
Courts have rejected similar attempts to segment projects into smaller portions to avoid a
comprehensive review Breaking a project "`into small component parts" to avoid reviewing
them together "is to engage in illegal `segmentation "' New River Valley Greens v U S D O T ,
No 97 -1978, 1998 U S App LEXIS 22127, **8 9 (4th Cir Sep 10, 1998) (quoting 40 C F R
1508 27(b)(7)) A hallmark of segmentation is an initial proposed action involving "such a large
and irretrievable commitment of resources that it may virtually force a larger or related protect to
go forward notwithstanding the environmental consequences ' Id , see Western N C Alliance v
N C Dep t of Transp , 312 F Supp 2d 765, 773 75 (W D N C 2003) (finding division of a
transportation project into parts that had no independent utility or logical termini and that would
force the undertaking of future actions, similar to the present project, resulted in segmentation
and failure to assess cumulative impacts in violation of NEPA), North Carolina v City of
Virginia Beach, 951 F 2d 596 (4th Cir 1991) (In determining whether illegal segmentation has
occurred, we ask whether the completion of the first action has a "direct and substantial
probability of influencing [the] decision" on the second ), Fla Wildlife Fed'n v U S Army
Corps of Eng'rs 401 F Supp 2d 1298, 1318, 1321 (S D Fla 2005) (finding illegal
segmentation where the "inescapable conclusion from th[e] record is that' the project "was
conceptualized as an integrated whole, progressing in phases, and that' the first phase `was
never intended to stand alone" and that the claim that the first phase had "independent utility"
was "developed post hoc as an avenue to limit and expedite permit review ")
Because these three bypasses are inextricably linked, and interdependent, their effects
cannot be evaluated separately To do so segments the analysis and violates the federal
regulation that NCDOT recites in its Application, 23 C F R § 771 111(f)
CAMA requires a full consideration of the "overall protect purpose" and "cumulative
effects "
Further, the exclusion of the effects of the Havelock Bypass and the Northern Carteret
Bypass renders NCDOT's Application incomplete under CAMA and therefore DCM must reject
the permit application CAMA requires the agency to deny a permit where "there is a practicable
alternative that would accomplish the overall project purposes with less adverse effect on the
public resources " N C Gen Stat § I I 3 120(a)(9) DCM must also deny an application the
project would "contribute to cumulative effects that would be inconsistent with the guidelines set
forth in this subsection " N C Gen Stat § 113A 120(a)(10)
By omitting the Havelock Bypass and Northern Carteret Bypass as well as the Super 70
"vision," NCDOT has mischaracterized the "overall project purpose " As a result, the agency
has not provided adequate information to investigate the environmental effects of the project,

including direct, indirect, and cumulative effects Further, due to that omission, NCDOT has
failed to look at potential practicable alternatives that could "accomplish the overall project
purposes with less adverse effect on the public resources "
Because the Application focuses solely on one third of the project, the Beaufort Bypass
and excludes impacts from the remainder of the project, it fails to consider important cumulative
effects of the entire protect The Havelock Bypass, for example threatens substantial impacts to
wetland and stream resources as well as habitat for the endangered red cockaded woodpecker
The Northern Carteret Bypass's impacts have not been evaluated, but it is expected that
considerable wetland impacts will be involved
Moreover, developing a new - location freeway through Carteret County may include
interchanges and accompanying development that could result in significant indirect and
cumulative effects In addition to those effects, NCDOT's recently released Maritime Study
emphasized that the North Carteret Bypass, which would be accessed by the Beaufort Bypass,
"would enhance access for freight movement to the Port of Morehead City," suggesting that
increases in port activity could be an indirect effect of the bypasses Maritime Strategy at 105
And by NCDOT's assessment, those expansion activities — which are dependent on the
Havelock, Northern Carteret, and Beaufort bypasses — would affect "significant natural heritage
areas and shellfish growing areas " Maritime Strategy at 223
Consideration of the effects of these interdependent projects makes clear that NCDOT's
conclusion that "the contribution of the project to cumulative effects resulting from current and
planned development patterns should be minimal" is unsupportable App at 8
Finally, as discussed more fully in our comments on the Havelock Bypass, there are
practicable alternatives to building a new - location freeway connecting north of Havelock to
Morehead City SELC Havelock Comments at 29 -33 By impermissibly narrowing the focus of
the Beaufort Bypass, NCDOT fails to address the overall project purpose of these three projects
and, therefore, fails to address practicable alternatives
For these reasons DCM should deny the requested CAMA Mayor Development Permit
Please contact me at (919) 967 -1450 if you have any questions regarding these comments
Sincerely,
eoffrey R Gisler
Staff Attorney
Enclosures
cc (via email)
Elizabeth Greene, Cypress Group, NC Chapter of Sierra Club
Molly Diggms, NC Chapter of Sierra Club
Todd Miller, North Carolina Coastal Federation
4

Gary Jordan, USFWS
John Hammond, USFWS
Michael Schafale, NHP NCDENR
Karen Compton, USFS
Gary Kauffman, USFS
Administrator John F Sullivan, FHWA
Ronald Lucas FHWA
Bill Brazier, USCG
Secretary Gene Conti, NCDOT
Leigh McNairy Board, NCDOT
Chris Militscher, USEPA
Durwood Stephenson, Chair, Super 70 Commission
Bill Biddlecome, USACE
David Wainwright, DWQ
Travis Wilson, NCWRC
Ronald Sechler NMFS
5

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET SUITE 220 Facsimile 919 929 9421
CHAPEL HILL NC 27516 2356
November 21, 2011
Mark Pierce
Project Planning Engineer
NCDOT Eastern Project Development Unit
1548 Mail Service Center
Raleigh, NC 27699 1548
mspierce @ncdot gov
Re Comments on Draft Environmental Impact Statement for Havelock Bypass
Dear Mr Pierce,
On behalf of the North Carolina Wildlife Federation, the Cypress Group of the North
Carolina Chapter of the Sierra Club, and North Carolina Coastal Federation the Southern
Environmental Law Center submits the attached comments on the above referenced Draft
Environmental Impact Statement ( "DEIS "), prepared by the North Carolina Department of
Transportation (` NCDOT' ), and the Federal Highway Administration ( "FHWA ") (collectively
the "Transportation Agencies') The DEIS analyzes the impacts of the proposed alternatives for
the Havelock Bypass ( "Bypass" or "highway')
In our comments, we identify a number of issues related to the proposed Bypass that we
believe require significantly greater disclosure and analysis to comply with the National
Environmental Policy Act ( "NEPA ") and other federal and state laws prior to the issuance of the
Record of Decision and potential permitting of this project The key shortcomings of the DEIS
include the following
• The DEIS fails to adequately consider the impact of the protect on the management of
the Croatan National Forest One of the key environmental impacts of the proposed
highway is the effect on the U S Forest Service's ability to carry out prescribed burning in
proximity of the proposed highway The DEIS's evaluation of the Forest Service's ability to
use this essential management technique is cursory, vague, and fails to fully evaluate the
various potential impacts of the project including the effect of restricted management on
habitat for the endangered red cockaded woodpecker and rare plant communities
• The DEIS omits a 4(f) analysis Section 4(f) of the Department of Transportation Act is
intended to ensure that valuable public land functions — specifically, recreation and wildlife
habitat — are not unnecessarily impaired by highway projects Here, the proposed bypass
threatens a portion of the Croatan National Forest that is used for recreation and designated
as wildlife habitat yet the DEIS does not include a 4(f) analysis
• The DEIS excludes analysis regarding wetland and stream impacts that is necessary to
evaluating the project under the Clean Water Act The DEIS must, but fails to, provide
an analysis of the value of streams and wetlands that would be affected, the potential impacts
of degradation of those streams and wetlands, and the efforts that have been made to avoid
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and minimize those adverse impacts That information is required before the Least
Environmentally Damaging Practicable Alternative can be selected Based on the scant
evidence in the DEIS Alternative 3 cannot be selected as the LEDPA
The DEIS fails to substantiate the economic or transportation ,justification for travel
unimpeded by stoplights between Raleigh and the port at Morehead City Rather than
providing an economic or transportation justification to support the expense and
environmental disruption of the preferred new location bypass, the DEIS generally states that
US 70 needs to be upgraded to "improve traffic operations for regional and statewide traffic
along 70" and "[t]o enhance the ability of US 70 to serve the regional transportation function
in accordance with the Strategic Highway Corridors Plan" The bypass may move the
congestion that is currently along the existing route to the termini and interchange of the
bypass, frustrating the project goal of improved traffic operations The bypass may also
leave local communities stuck with congestion along the existing route Quantifiable data on
harm to local economies from loss of through traffic, or unrelieved congestion and
quantifiable data on local and through trip times with and without the bypass are necessary to
evaluate whether the project will meet the project's stated purpose
The DEIS fails to adequately consider a reasonable, cumulative upgrade alternative
NEPA requires, but the DEIS does not provide, detailed analysis of a reasonable range of
alternatives Rather than conducting detailed study on only new location bypass alternatives,
the Agencies should have given greater consideration to upgrading the existing corridor,
including but not limited to a combination of NCDOT's own US 70 Access Management
Study and a superstreet alternative
The DEIS fails to consider the cumulative impacts of foreseeable transportation
projects closely linked to the Havelock Bypass NEPA requires that the DEIS evaluate the
impact of reasonably foreseeable projects in its cumulative impacts analysis for the proposed
bypass This bypass is one of several interrelated projects along Highway 70 in Eastern
North Carolina In particular, the cumulative impacts analysis of the Havelock Bypass
should have also considered the impacts of two expensive and environmentally destructive
projects, the Northern Carteret Bypass and the Gallants Channel Bridge These two projects
are close in proximity to the Havelock Bypass, and directly relate to access to Morehead
City
In addition to the myriad substantive flaws in the analysis of impacts and alternatives, the
DEIS fails to provide updated analysis, relying instead on outdated prior study As described in
this summary and the detailed comments attached, the Transportation Agencies must revise their
analysis of alternatives and impacts according to the recommendations set forth herein and issue
a supplemental DEIS for public review and comment
Sincerely,
D.Z/ I�A-
J David Farren Senior Attorney
Geoff Gisler, Staff Attorney
Chandra T Tayloi, Senior Attorney
2

cc Tim Gestwicki North Carolina Wildlife Federation
Mary Alsentzer Cypress Group, NC Chapter of Sierra Club
Molly Diggins, NC Chapter of Sierra Club
Todd Miller, North Carolina Coastal Federation
Gary Jordan, USFWS
John Hammond, USFWS
Michael Schafale, NHP, NCDENR
Karen Compton, USFS
Gary Kauffman, USFS
Administrator John F Sullivan, FHWA
Secretary Gene Conti, NCDOT
Leigh McNairy, Board, NCDOT
Chris Militscher, USEPA
Durwood Stephenson, Chair, Super 70 Commission

INTRODUCTION
Project Description
The proposed U S 70, Havelock Bypass, S T I P ID No R 1015 is a new location,
almost 10 -mile, four -lane divided, controlled access freeway around the southwest side of the
City of Havelock and the Cherry Point United States Marine Corps Air Station (MCAS) in
Craven County, North Carolina 1 This is one of several projects that are part of the Super 70
effort, one that envisions freeway access with no stops from Raleigh, North Carolina to
Morehead City Z Existing U S 70 through Havelock is a multilane arterial with a total of
fourteen signalized intersections along the route 3 The existing route serves a majority of the
commercial business in Havelock 4
Project setting
Under the detailed study alternatives, the Havelock Bypass would directly impact 189 to
240 acres of forest lands and isolate a 746 to 1,909 acre portion of the Croatan National Forest
from the remainder of the forest fundamentally altering the long term management of the
isolated section of the forest and potentially affecting the forest's ability to carry out two of its
primary functions — providing wildlife habitat and recreational opportunities Yet the DEIS fails
to studiously evaluate the proposed impact of building the proposed highway on forest
management — specifically with respect to prescribed burning Prescribed burning is well
recognized as being essential to maintaining the longleaf pine ecosystem that the highway would
fragment Apart from mentioning a "conceptual" agreement to burn, the DEIS is nearly silent on
the procedural difficulties inherent in a burning program, how the highway would affect those
difficulties, or what the potential consequences are for the RCW population and the broader
longleaf community — including rare plant communities in designated significant natural heritage
areas Nor does the DEIS include a Section 4(f) analysis of the impact to wildlife and
recreational areas on national forest land
Similarly, the DEIS lacks the detailed analysis necessary to adequately evaluate the
potential impact to streams and wetlands Although the DEIS identifies streams and wetlands
that would be affected it does not include the analysis under the Clean Water Act that is
essential to comparing the various alternatives and selecting the Least Environmentally
Damaging Practicable Alternative
The DEIS is also flawed with respect to its transportation analyses Bypassing small
towns in order to create unfettered access to another location is not novel, and most of the
'DEIS at S 2
2 http / /www ncdot org/projects/US70corridor/
' DEIS at 1 8
4 Id
s Id at 4 33
6 Id at 4 66
2

problems with these bypasses are typical Substantial cost to the state and reduction in sales to
existing business are two common foibles This particular bypass is beset with many more
First, this project serves little independent transportation utility There is scant data in the
DEIS on travel times for local traffic, and the description of project benefits does not state that it
will improve those times Rather, the DEIS touts reduction in travel time to "Carteret County
beaches and the Port of Morehead City, " clearly a benefit for those passing through rather than
those living in town Safety to long distance motorists is listed as a benefit of the project' but
safety to local motorists is given little to no attention in the DEIS 9 While the project is said to
improve access for area commuters to the military base, corridors that would have included an
interchange at the area that currently serves the base, Slocum Road, were dismissed from
consideration 10 Slocum Road connects directly to MCAS, intersects U S 70 and has a poor
level of service, including the 4th highest number of accidents in Havelock 11 The Havelock
Bypass will do nothing to improve this intersection
In addition to providing few, if any benefits to the locality the overall objective of the
project to achieve uninterrupted service between Raleigh and Morehead City will be eventually
thwarted by the growth that will occur at each end of the bypass — creating slowdowns where
people want to get on and off Experience from other locations indicates that these connecting
points may create local land use problems and require traffic management actions that will
prevent the Bypass from achieving this overall goal Yet the DEIS does not identify or evaluate
these effects
The economic justification for the project is seriously flawed as well The Super 70
project is based upon an unsupported background assertion that freeway access from the capital
to the port at Morehead City will somehow create economic development for the eastern North
Carolina that lies between In fact, the port at Morehead City is small, and the amount of freight
that enters and exits the facility has steadily declined since 1990 Nothing has been shown to
support the idea that bypassing economically depressed communities in eastern North Carolina
to quicken trips between Raleigh and already thriving coastal communities will benefit the
economy
The road itself is costly and the economic justification for it is absent The environmental
impacts are significant, and the environmental analysis of those impacts is lacking For these
reasons and those detailed herein, the Agencies should issue a supplemental DEIS that fully
addresses these impacts and includes careful evaluation of viable upgrade alternatives to the
existing corridor before proceeding to the Final EIS phase
Id at 1 7
8 Id
9Id at 31
10 Id at 2 19
" Id at 1 21

II As Proposed, the Havelock Bypass Would Threaten the Continued Existence and
Recovery of the Red - Cockaded Woodpecker, Violating Sections 7(a)(1) and 7(a)(2)
of the Endangered Species Act
The Endangered Species Act ( "ESA ") imposes substantive requirements on each of the
federal agencies involved in the consideration of the proposed Havelock Bypass and the
management of red - cockaded woodpecker ( "RCW ") populations on the Croatan National Forest
Section 7(a)(1) includes "a specific, rather than a generalized duty to conserve species "12
Conserve means "to use and the use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the measures provided
pursuant to this chapter are no longer necessary X13 Therefore, FHWA, U S Forest Service
( "USFS "), U S Fish and Wildlife Service ( "FWS ") and the U S Army Corps of Engineers
( "Corps ") each have a legal obligation to advance the recovery of the RCW
Section 7(a)(2) requires each federal agency to "insure that any action authorized, funded,
or carried out by such agency is not likely to Jeopardize the continued existence of any
endangered species or threatened species "14 As a result, FHWA and the Corps must
affirmatively demonstrate that the proposed bypass will not Jeopardize the continued existence of
the RCW
As discussed below, the DEIS fails to address the potential impacts of the proposed
highway in sufficient detail to allow the federal agencies involved to carry out their
responsibilities under the ESA — particularly with respect to future prescribed burning
Therefore, any action taken based on the information and analysis provided in the DEIS would
violate the ESA
A The RCW is endangered because of, and continues to be threatened by, loss
of suitable habitat
The reasons leading to the RCW's endangered status — habitat loss due to clearing,
fragmentation and fire suppression — make proper management of existing habitat on public
lands essential to recovery of the species At one time, the old growth longleaf pine that RCW
depend on dominated the southeastern coastal plain Among the causes of that habitat decline
fire suppression has had particularly far reaching effects The RCW Recovery Plan describes its
impacts as severe and numerous" because of the resulting changes in forest composition and
structure 15 Specifically, fire suppression has stifled reproduction of longleaf pine, leading to
shortages of old secondary growth forests
12 Fla Key Deer v Brown 364 F Supp 2d 1345 1361 (S D Fla 2005)
Is 16 U S C § 1532(3)
14 16 U S C § 1536(a)(2)
u U S Fish and Wildlife Service Recovery Plan for the red cockaded woodpecker (Picoides bot eahs) second
revision at 4 (2003) ( Recovery Plan )
ro

The threats that caused the RCW to be endangered continue and all have the same root
cause, shortage of suitable habitat Threats caused by the lack of habitat include
1 insufficient numbers of cavities and continuing net loss of cavity trees,
2 habitat fragmentation and its effects on genetic variation, dispersal and
demography
3 lack of foraging habitat of adequate quality, and
4 fundamental risks of extinction inherent to critically small populations
from random demographic, environmental, genetic, and catastrophic
events 16
Fire suppression plays a key role in each of these threats It is a "profound threat" to
RCW populations and "has been a leading cause of loss of woodpecker groups on both public
and private lands "17 Importantly, the negative effects of fire suppression extend to foraging
habitat as well as nesting and roosting habitat 18 Even if nesting and roostinf habitat is protected,
"lack of fire in the foraging habitat can reduce group size and productivity ' 9 To reverse these
habitat impacts, "[ w]ddespread and frequent application of early mid growing season fire
throughout lands managed for red cockaded woodpeckers is essential to the recovery of the
species "20 Indeed, the 2002 CNF Land and Resource Management Plan ( "LRMP ") recognized
that "[p]ast fire suppression and widespread planting of loblolly pine has greatly reduced the
amount of longleaf pine habitat on the forest over the last 100 years "21
Habitat fragmentation is also a substantial threat to RCW Because they are group
breeders RCW are particularly sensitive to fragmentation 22 "Fragmentation and isolation of
groups within a population can substantially increase that population's risk of extinction "23
Degraded foraging habitat 1s also a threat to RCW s long term viability and recovery
"Foraging habitat affects population densities, it may be a secondary factor currently limiting
populations and will likely become a primary limiting factor once abundant nesting habitat is
provided "24 Even when cavity trees are protected adequate foraging habitat 1s "an important
concern for long term viability "25
These threats to suitable habitat are not only the reason the RCW 1s endangered they
continue to threaten the existence and recovery of the species As reflected in the LRMP, the
most significant challenge facing the population on the CNF 1s managing habitat "Maintaining
a viable population of RCW on the Croatan 1s dependent not only on having sufficient suitable
16 Recovery Plan at 5
17 Id
18 Id
19 Id
2° Id at 6
21 Id at 10
22 Id at 7
23 Id at 8 (emphasis added)
24 Id
25 Id
7

habitat for nesting and foraging through forest management, but having a suitable spatial mix
and arrangements of habitat through time "26
B Recovery of the RCW depends on the recovery of primary populations,
including the CNF population
The recovery of RCW is dependent on the recovery primary and secondary populations
across the historic range 27 The recovery of these populations is necessary to make RCW a
viable species, one that "can reasonably be expected to avoid extinction over a long period of
time "28 The recovery populations are widely distributed throughout the historic range of the
species That dispersal serves "several critical ecological objectives," including "reduc[ing]
threat of species extinction from catastrophic events such as hurricanes "29 In addition, the
"secondary and primary core populations together create a network which when population
goals are reached, may facilitate the natural dispersal among populations that is critical to long
term genetic viability "30 Promoting natural dispersal is essential because "the vast majority of
red cockaded woodpecker populations are threatened by demographic stochasticrty and will
remain so for the foreseeable future "31 Demographic stochasticrty, the natural fluctuation of
populations due to changes in reproduction and death rates, is a serious threat to small, isolated
populations
The CNF population is one of the 13 primary populations with recovery goals of "350
potential breeding groups at the time of and after delisting," and is therefore essential to the
recovery of the species 32 Its importance is, in part, because the national forest is Its hub 33
Critically recovery of the "species depends primarily on the conservation of populations on
federal lands "34 The LRMP recognizes the pivotal role of the CNF populations, stating that
RCW population on the CNF, Camp Lejeune and Holly Shelter is one of the populations that is
"needed to recover the species "35
But the CNF population is currently falling behind recovery goals The Recovery Plan
expects populations to increase "at a rate of 5 percent per year "36 Based on that expectation, the
Croatan should have had 101 potential breeding groups ( "pbgs ") in 2010 According to the
DEIS, the population was well below that number, with only 58 pbgs
This failure to establish a large stable population that meets the Recovery Plan s
expectations threatens the existence of the species Until the CNF population attains its recovery
26 U S Department of Agriculture Forest Service
Management Plan at 71 (2002)( LRMP )
27 See Recovery Plan at 140 41
2E Id at 22
29 Id at 150
30 Id at 146
31 Id
32 Id at 149
33 See id at 134
34 Id at 133
35 LRMP at 71
36 Recovery Plan at 162
Southern Region Croatan National Forest Land and Resource
8

goal, it will be vulnerable to "the set of risks inherent to critically small populations "37 Those
risks include demographic stochasticity environmental stochasticity, catastrophes, and genetic
drift and inbreeding 38 Each of the risks varies depending on the size of the population
Demographic stochasticity depends on spatial structure of habitat, but may threaten populations
as large as 100 groups if satial structure is poor 39 Importantly, "small, low density populations
always seem to decline "41 Populations must be even larger to avoid the threat of environmental
stochasticity 41 At least one study has "suggested that populations with an effective size of 50
individuals or less would be vulnerable to inbreeding effects "42
Hurricanes present an additional threat, particularly to the CNF population As
demonstrated by Hurricane Hugo's destruction in the Francis Marion National Forest, a single
event has the capacity to eliminate small, spatially restricted populations 43 The recovery
population at CNF is small enough, and the breeding groups are sufficiently compact, that loss of
a complete subpopulation, and perhaps the entire population from a single storm remains a
serious risk
C Establishing a fire regime that replicates natural burning patterns is
necessary for the recovery of the CNF population
Installing a fire regimen that mimics natural cycles is essential to establishing a viable
population of RCW on the CNF and recovering the species As described in the Recovery Plan,
"a viable population is one that is self - sustaining over a long period "44 Creating a self -
sustaining population on the CNF requires connecting the population by providing suitable
habitat in the area that would be affected by the proposed bypass is essential to the recovery of
the CNF population and the species Implementing prescribed burning in a manner that mimics
natural, growing season fires is essential to providing that habitat
The importance of fire to RCW habitat cannot be overstated As discussed above, fire
suppression has played a mayor role in the degradation of habitat and the resulting decline in
populations Fire is critical to each aspect of RCW habitat and resulting individual fitness 45
Fire increases productivity of groundcover, improving flower production, synchronicity and
pollination as well as reducing hybridization 4 That fire - maintained groundcover in turn
supports more arthropods — e g ants, roaches, beetles — than areas with a hardwood midstory 47
As widely recognized, regular growing season burns effectively control midstory hardwoods and
shrub growth, and does so without damaging groundcover or soil structure as heavy machinery
37 Id at 8
3a Id at 24
39 Id at 25
40 Id
41 Id at 26
41 Id at 27
43 See id 30
44 Id at 22
41 Id at 52 (fig 1)
46 Id at 69 113
47 Id at 70
9

does 48 Critically, re &ular fire reduces fuel levels, minimizing the risk of catastrophic fire that
destroys cavity trees 9
In sum, "prescribed fire is a fundamental solution to the conservation of red cockaded
woodpeckers and their ecosystems "50 It "is and will continue to be the primary means of
restoring and maintaining fire in southern pine ecosystems 51 That is true in RCW habitat
throughout that Southeast and on the CNF specifically 52 "Prescribed burning is an essential
management tool for the conservation and recovery of red - cockaded woodpeckers "53 Restoring
the RCW s longleaf habitat "requires frequent and consistent application of fire to control
competing pine species and other woody competitors' 54
The necessity of prescribed burning has been demonstrated in North Carolina through
comparison of population growth rates in the Sandhills, Lejeune, and Croatan Data has "rates
have been higher in recent years in the Sandhills and Lejeune, following reintroduction of
growing season fire, and lower in the last several years on Croatan, since burning during the
growing season there has been reduced "55 This increased performance with more - frequent
burning programs comes as no surprise, the Recovery Plan recommends that managers "strive
for a program of frequent early to mid growing season burns to maintain and enhance quality of
nesting and foraging habitat " 6 To be sure "restoration of good quality habitat is vital to the
recovery of the species "57
D Expansion of Subpopulation 3 is essential to the recovery of CNF population
Just as restoring the habitat generally is essential to RCW's continued existence and
eventual recovery, restoring habitat that would be affected by the proposed bypass is essential to
restoring the CNF population — one of the critical recovery populations for the species
Beginning in 1992, the CNF has been working to unify its fragmented populations 58 As
depicted on the map showing Management Prescriptions and Locations under the 2002 Land and
Resource Management P1an,59 RCW habitat is divided on the CNF RCW habitat management is
prescribed for segments of the forest closest to Camp Lejeune, the southern section of the forest
the portion of the forest east of Cherry Point, the northeastern segment of the forest, and within
the proposed corridor for the Havelock Bypass The proposed corridor cuts through what is
known as Subpopulation 3 which is centrally located among the areas designated for RCW
habitat management
48 Id at 106
49 Id at 41 LRMP at 38
50 Recovery Plan at 71
51 Id at 105
52 LRMP at 36
53 Recovery Plan at 105
54 LRMP at 38
55 Recovery Plan at 20
56 Id 202
57 Id at 111
56 LRMP at 23
59 DEIS Figure 3 2
10

Because of its central location, Subpopulation 3 is essential to the long -term plans for
unifying these subpopulations 60 As the DEIS recognizes dispersal between populations that is
necessary for that unification depends on the development of "habitat bridges' linking
populations 61 Its central location is critical in connecting isolated populations because when
"groups are isolated and dispersal behavior disrupted, risk of population extinction increases "62
The area that would be affected by the proposed bypass is one of these habitat bridges, making
"[c]ontinued and increased habitat management [] critical to the growth of Subpopulation 3, and
the linking of the CNF's fragmented populations 63
The potential impacts to Subpopulation 3 are considerable According to the DEIS, the
proposed project would directly remove 816 acres of suitable or potentially suitable habitat
under Alternate 1, 88 51 acres under Alternative 2, and 168 55 acres under Alternative 3 64 As
noted above, without prescribed burning, habitat not directly affected will also be substantially
degraded and ultimately lost Although the DEIS does not quantify the habitat that could be lost
if prescribed burning were precluded, that habitat would certainly include the portion of the
forest between the Bypass and Havelock That area would encompass 1,909 42 acres of habitat
under Alternative 1, 746 25 acres of habitat under Alternative 2 and 1,083 80 acres of habitat
under Alternative 3 Therefore, the proposed project has the potential to destroy between 834 76
and 199102 acres of suitable or potentially suitable habitat within Subpopulation 3, without even
considering the degradation of habitat west of the proposed Bypass if burning is precluded in that
section of the forest
Given the difficulty identified above, it must be presumed that the proposed Bypass will
preclude burning this habitat and result in the extirpation of Subpopulation 3 The loss of
Subpopulation 3, or even the degradation of its habitat, would prevent the CNF population from
meeting its recovery goals and imperil the species Under the Recovery Plan, the CNF must
contribute 169 pbgs for the Coastal North Carolina population to meet its recovery goal of 350 65
As noted in the DEIS, "the USFS quantified the amount of potentially suitable RCW habitat on
the CNF with a range of 137 to 169 pbgs as its population goal "66 Therefore, due to the limited
available habitat and its role in connecting the CNF subpopulations loss of the habitat necessary
to support Subpopulation 3 would jeopardize the CNF population and the RCW
E Proposed bypass alternatives would fragment habitat, preclude prescribed
fire, and degrade remaining habitat
Prescribed burning will not occur if the Havelock Bypass is built, existing habitat will be
degraded, Subpopulation 3 will collapse, and the CNF population will dwindle, threatening the
long term existence and recovery of the RCW This conclusion is inescapable considering the
history of burning in the CNF the difficulty in carrying out prescribed burns near highways and
60 See DEIS at 4 67
61 DEIS at 4 67
62 Recovery Plan at 8
63 DEIS at 4 67
' Id at 4 63
65 Recovery Plan at 166
66 DEIS at 4 68
11

developed areas, NCDOT's lack of definitive commitment to close the proposed bypass for
burning and the effect of not carrying out prescribed burns on RCW habitat
As the DEIS notes, the USFS has not recently met its prescribed burning goals 67 To be
sure, the clusters and HMAs in the project area have not been adequately burned to promote
good quality RCW habitat and to promote the growth of Subpopulation 3 unify the CNF
population, or meet recovery goals 68 By failing to do so, the USFS may not be meeting its
requirements under the Endangered Species Act to conserve the species 69 The DEIS fails to
evaluate the potential impacts of the proposed project in light of this historic failure to properly
manage the affected area for RCW recovery Given this history, it is clear that the substantial
additional difficulty that the bypass will present for prescribed burning will ensure that the
habitat within the project area will not be burned
The added complexity brought to the prescribed burning program by the proposed bypass
comes into clearer focus by considering the issues that must be evaluated before a prescribed
burn can proceed The minimum standards that the Forest Service must abide by are outlined in
the Interagency Prescribed Fire Planning and Implementation Procedures Guide ( "Interagency
Guide') The Interagency Guide describes 21 elements of a Prescribed Burning Plan that must
be evaluated before any prescribed burning can move forward Even after the plan is prepared
and approved, the Interagency Guide requires the burning agency to go through a "Go/No Go
Pre Ignition Approval Checklist' that includes assessments of specific issues related to burning,
ranging from smoke management and weather to public notices 70 The DEIS recognizes some of
these difficulties, noting that "decisions to burn are determined at the last minute based on wind
speed and direction, humidity "71 The document fails however to discuss how the added
complexity of coordinating with NCDOT and closing the highway would affect this already
complicated process It does admit that "it would be logistically difficult to close the highway on
short notice," suggesting that, even without an appropriate analysis and' hard look," the NCDOT
and FHWA recognize that constructing the bypass would preclude prescribed burning 72
Nor has NCDOT committed to closing the proposed bypass to allow for prescribed
burning The DEIS states that NCDOT has "conceptually" agreed to close the proposed
bypass,73 but does not include any commitment to transfer discretion to the USFS or present any
plan for doing so In fact the DEIS later acknowledges that no formal plan has been developed
and that "[a] plan is being developed in anoint effort between the CNF and NCDOT" and
concedes that ` it would be logistically difficult to close the highway on short notice "74
The vagueness with which the DEIS discusses closing the road is critical not just because
prescribed burning is essential to maintaining habitat, but also because NCDOT has previously
67 DEIS at 4 71
61 See td at 4 67
69 See 16 U S C § 1536(a)(1)
70 See Interagency Prescribed Fire Planning and Implementation Procedures Guide Appendix 2 (July 2008)
71 DEIS at 4 74
72 Id at 4 74
73 Id at S 15
74 Id at 4 74
12

refused to commit to doing so 75 In short, NCDOT's conceptual agreement to consider closing
the highway cannot be relied up on in this analysis particularly in light of the project's purpose —
to create a non -stop connection between Raleigh and Morehead City Without a binding,
irrevocable commitment that puts road closure within the discretion of the USFS rather than the
NCDOT, and enforcement mechanisms to ensure that the road is closed to allow for burning on
with frequency that mimics natural burn patterns, it would be arbitrary and capricious to base an
analysis of environmental impacts on closing the road to allow for burning
In addition, it is not clear that, even if NCDOT closes the highway, the Forest Service
will be able to burn east of the road The DEIS describes NCDOT and the USFS's effort as
attempting to `minimize the likelihood that the Bypass will further complicate prescribed
burning in the project area "76 In the past, the Forest Service has stated that even if the highway
were closed, it still could not burn between the Bypass and Havelock,77 which would result in the
loss of 834 -1,991 acres of suitable or potentially suitable RCW habitat Thus, even if NCDOT
and USFS were to develop a plan to close the road, it would be insufficient to demonstrate that
prescribed burning would be implemented on forest land between the Bypass and Havelock
While the USFS's ability to carry out prescribed burning if the highway is built is, at best,
speculative, the DEIS acknowledges that the adverse effects of a failure to do so are certain and
significant The DEIS frequently notes that failure to burn will further degrade and fragment
RCW habitat It states
• "[I]f habitat management is restricted due to the project, fragmentation or degradation of
suitable and/or potentially suitable habitat could impact the dispersal corridor created by
Subpopulation 3 "78
• "Habitat quality is directly related to habitat management Management within and
around the project area is already hampered by its proximity to Havelock and by
fragmented ownership Smoke generated by prescribed burning is an ongoing concern on
the CNF "79
• "Thus the ability of the CNF to properly manage habitat is vital to the fitness of
RCWs ' S0
• "Alternates 1 and 3 would cause the most difficulties for managers conductor prescribed
burns because they would separate RCW habitat from the CNF to the west "8
• "If the USFS is unable to use a prescribed burn east of the Bypass, RCW existing habitat,
whether suitable, potentially suitable or future potential has the ability to degrade over
time "82
• "Indirect and cumulative impacts may result from traffic noise, development of some
private properties along the highway corridor and /or restriction of necessary management
75 See Notes by Gary Jordan 10/18/2010 Meeting with USFS NCDOT FHWA and JCA Notes by Gary Jordan
10/6/2010 Meeting with USFS in Raleigh (Attachment 1)
76 DEIS at 4 71
77 See Email from Gary Jordan FWS to Mark Pierce NCDOT (Oct 7 20 10) (Attachment 2)
78 DEIS at 4 70
79 Id at 4 73
80 Id
" Id at 4 74
82 Id
13

activities (e g , burning) Such impacts could individually or collectively adversely affect
RCW dispersal to /from the area and inhibit unification of the CNF RCW population '83
These sections of the DEIS emphasize what is broadly known about the importance of fire in
maintaining RCW habitat and necessarily recognize that, without fire, the Havelock Bypass will
have the same impacts that have put the RCW on the endangered species list — loss of habitat due
to fragmentation, degradation, and fire suppression
F Authorizing the proposed bypass based on the information and assumptions
included in the DEIS would violate sections 7(a)(1) and 7(a)(2) of the
Endangered Species Act
The ESA requires every federal agency to conserve listed species and Prohibits any
agency from jeopardizing the continued existence of any endangered species 4 The DEIS fails
to provide the information and analysis to satisfy those requirements To be sure, it excludes
perhaps the most critical piece of information, the conceptual agreement between NCDOT and
USFS that would presumably allow prescribed burning to take place east of the proposed
highway Without that document and an analysis of its effects on each alternative, the DEIS's
analysis of potential impacts is substantially incomplete As the document recognizes, whether
or not prescribed burning can be done on the fragmented sections of forest land will substantially
affect the impacts of Alternatives 1, 2, and 3 on the RCW as well as the remainder of the CNF
population due to the role of Subpopulation 3 in unifying the overall population The omitted
prescribed burning assessment is, therefore, an essential part of the analysis
Courts have made cleai that federal agencies cannot gamble the continued existence of
endangered species on "conceptual" plans like the one this DEIS relies upon The ESA is "the
most comprehensive legislation for the preservation of endangered species ever enacted by any
nation "85 Thus, to meet its rigorous standards, "a far more subtle calculation than merely
totaling the number of acres to be asphalted is required where the environmental impact of a
project is at issue "86 Where, as here, federal agencies fail to demonstrate that an endangered
species "can survive the additional loss of habitat caused by the indirect effects of the highway,"
they violate the ESA 87 Particularly relevant here "reliance on the proposed actions of other
agencies does not satisfy the FHWA's burden of insuring that its actions will not jeopardize the
continued existence" of the RCW S8 Unlike the conceptual plan proposed here "[m]itigation
measures under the ESA must be reasonably specific, certain to occur and subject to deadlines or
other forcible obligations ' 89 By comparison the proposed plan to close the highway and
implement prescribed burning on fragmented segments of forest land is not specified certain to
occur, or subject to any enforceable obligations Therefore, authorizing construction of the
Havelock Bypass based on the information and analysis in the DEIS would violate the ESA
" Id at 4 75 see id at 6 64
84 16 U S C § 1536(a)(1) (2)
85 Tenn Valley Auth v Hill 437 U S 153 180 (1978)
86 Nat 1 Wildlife Fed n v Coleman 529 F 2d 359 373 (5th Cir 1976) (quoting D C Fed n of Civic Ass ns v Volpe
459 F 2d 1231 1239 (D C Cir 1972))
87 Id
" Id at 374
S9 Fl Key Deer 364 F Supp 2d at 1355
14

III The DEIS Violates NEPA By Failing to Thoroughly and Critically Analyze Impacts
of the Proposed Bypass
The National Environmental Policy Act of 1970 ( "NEPA "),90 forms the foundation of "a
national policy of protecting and promoting environmental quality "91 NEPA has two
fundamental aims First, it serves "to sensitize all federal agencies to the environment in order to
foster precious resource preservation "92 Second, it "ensures that the public and government
agencies will be able to analyze and comment on the action's environmental implications "93
NEPA is implemented by regulations developed by the Council of Environmental Quality
( "CEQ ") and by regulations developed in each individual federal agency The regulations
require that an Environmental Impact Statement ( "EIS ") be developed for all 'major Federal
actions significantly affecting the quality of the human environment "94 An EIS requires
agencies to take a "hard look" at environment impacts, and "an agency's hard look should
include neither researching in a cursory manner nor sweeping negative evidence under the
rug "95
In keeping with NEPA's twin aims to provide information both to decision makers and
to the public and other resources agencies, NEPA procedures insure that environmental
information is "available to public officials before decisions are made and before actions are
taken "96 Accordingly, an EIS must be prepared "early enough so that it can serve practically as
an important contribution to the decisionmaking process and will not be used to rationalize or
justify decisions already made "97 While agencies will typically have a preferred alternative in
mind as they begin the NEPA process, the statute "requires that the ultimate decisionmaker
remain open to reconsidering any or all aspects of the proposed action based on the
environmental impact identified in the FEIS 08
This DEIS fails to comply with NEPA because it does not adequately examine the direct,
indirect and cumulative impacts of the proposed project, nor does it adequately analyze a
reasonable range of alternatives
A The DEIS fails to take a hard look at direct, indirect, and cumulative impacts
to longleaf pine habitat, streams, and wetlands
The DEIS fails to take the requisite "hard look" at various environmental issues,
including
90 42 U S C § 4321 et se
91 Hughes River Watershed Conservancy v Glickman 81 F 3d 437 443 (4th Cir 1996)
92 Natl Audubon Soc y v Dept of the Navy 422 F 3d 174 184 (4th Cir 2005)
93 Id
9' 42 U S C § 4332(c)
9s 422 F 3d at 194
96 40 C F R § 1500 1
9740CFR § 15025
98 Concerned About Jet Noise, Inc v Dalton, 48 F Supp 2d 582 607 (E D Va 1999)
15

• Indirect effect of not carrying out prescribed burning The DEIS repeatedly states
that habitat may be degraded if prescribed burning is precluded by the proposed bypass
It fails to analyze which areas are more likely to degrade, how that degradation would
affect existing communities or the long -term effects on the RCW population Moreover,
it does not evaluate the differences in these effects between the various alternatives
• The effect of roads on burning in other areas of the Croatan The DEIS omits any
discussion of difficulties encountered due to roads and development in other parts of the
Croatan These experiences could provide valuable information regarding the impacts of
the proposed Bypass on the prescribed burning program and must be evaluated
• Details of the proposed road closure agreement and the frequency of burning that
would be allowed pursuant to it It is clear that the ability to burn is one key element in
the evaluation of the environmental effect of the proposed Bypass Yet the DEIS
excludes the proposed agreement to close the road and fails to address how road closure
needs would change with each alternative
• Potential for increased wind damage Wind damage is identified by the RCW recovery
plan as one of the primary threats to cavities The DEIS fails to address the potential for
the proposed bypass to increase the threat of wind damage In addition, it fails to address
how the proposed highway would affect the population s vulnerability to hurricanes, as
specifically recommended by the Recovery Plan
• Consideration of ecosystem interactions in longleaf pine savannas The DEIS does
not adequately address the interconnectedness of soils, groundcover, midstory, and
canopy organisms in evaluating potential impacts to the longleaf pine ecosystem As
discussed above with respect to the ESA, the various levels of the system are
interdependent and their respective health depends on ecosystem based management The
DEIS fails to provide this holistic analysis
• Evaluation of impacts to Proposed, Endangered, Threatened, and Sensitive (PETS)
species The DEIS fails to analyze the highway's impacts on PETS species In the
Environmental Consequences section of the DEIS, the document defers to future
consideration of impacts to these species through the special use permit process NEPA
does not allow that type of deferral, the EIS must take a hard look at these potential
impacts
Ages of trees directly impacted The DEIS fails to address the future impact of trees
removed due to direct impacts The RCW Recovery Plan emphasizes the importance of
older secondary growth trees to the species' recovery Yet the DEIS does not reveal the
age of the trees involved their value as potential future cavity trees or compare the
potential impacts of the alternatives
Conformance with the Recovery Plan The RCW Recovery Plan includes a series of
"Recovery Tasks" to facilitate recovery of the species and Management Guidelines to
implement those tasks The DEIS fails to consider these tasks and guidelines in total or
evaluate the impact of the proposed highway on the USFS's ability to carry out their
requirements Significantly, the DEIS does not address how, with the potential loss of
Subpopulation 3, the Croatan population will meet its recovery goals
Reliance on conducting additional analyses after the selection of the LEDPA The
DEIS frequently, and unlawfully, defers evaluating environmental impacts of the
proposed project until the LEDPA is selected This approach is directly contradictory to
16

NEPA's purpose and mandate — to require consideration of environmental impacts before
an agency's focus turns to a single alternative
• Effect of construction on powerline corridors The powerline corridors in the project
area contain some of the last vestiges of groundcover plant communities that were once
more widespread in the Croatan The DEIS does not address the potential impact to these
areas and their rare plant communities during the construction period of the proposed
highway Storing equipment and materials in these corridors threatens long term
disturbance of these systems
• Analysis of stream and wetland impacts The DEIS analysis of stream and wetland
impacts is cursory and does not provide the information necessary to evaluate compliance
with the Clean Water Act or the state's 401 certification rules In addition to presenting
the overall wetland and stream impacts, the DEIS should differentiate impacts between
the projects and compare the quality of impacts Although it provides some raw
information regarding quality of wetlands, the DEIS must analyze that information
comparing the different alternatives The DEIS does not provide the information
necessary to determine compliance with the Clean Water Act and the 404(b)(1)
Guidelines 99
• Compliance with the Land and Resource Management Plan The DEIS dismisses
compliance with the CNF LRMP by summarily stating that the USFS is currently failing
to meet its goals and that "[t]he reasons for failure to attain these goals are independent of
the Bypass " Without support, the DEIS states that "[t]he construction and operation of
the Bypass should not prevent the USFS from meeting its goals if current management
limitations are overcome " DEIS at 4 73 The DEIS not only fails to provide
background to support this conclusion, the document frequently contradicts it The
Croatan's habitat management failures in recent decades are, in large part, due to
infrequent burning and habitat fragmentation The proposed highway threatens to
fragment, degrade, and preclude burning on an essential portion of habitat in forest,
making the achievement of established goals substantially more difficult The DEIS must
evaluate compliance with the LRMP and take the hard look required by NEPA
B The DEIS Fails to take a hard look at the indirect economic impacts of the
proposed project
CEQ regulations require the Agencies to consider the "indirect effects" of a proposed
action Indirect effects are defined as those effects that are ` caused by the action and are later in
time or farther removed in distance, but are still reasonably foreseeable " Effects includes
ecological (such as the effects on natural resources and on the components, structures, and
functioning of affected ecosystems) aesthetic, historic cultural, economic, social, or health
whether direct, indirect or cumulative 100 The DEIS fails to include sufficient analysis of the
indirect economic effects of the proposed project in two important ways First, the DEIS fails to
adequately examine the impacts the Bypass would cause to existing local businesses Second,
the DEIS fails to examine the induced development that may occur at the Bypass interchanges,
which are located at both ends of the bypass and at Lake Road 101
99 40 C F R § 230 10 et seg
100 40 C F R § 1508 8(b)
"' DEIS at S 6
17

The analysis of impacts to local business is unsupported and superficial
First, the DEIS does not adequately examine the economic consequences to existing
businesses that the Bypass will cause The DEIS states that the Bypass will' likely create
substantial economic benefits for the regional and local economy," but fails to substantiate the
claim with any quantitative data 102 Likewise, the DEIS states that "[n]egative economic impacts
are expected to be minimal" for "local highway oriented businesses but fails to substantiate the
claim with data 103 In reali% bypasses may cause negative economic impacts for businesses
located along the old route 04 Further, smaller communities are more likely to suffer adverse
economic consequences, and some may never recover '0' The DEIS states that property values
may decrease along the bypass but increase near the interchange, but provides no firm economic
data to support the claims 06 The analysis also states that businesses that "receive a large
portion of their income from drive by customers" will suffer minimal economic harms as a result
of the project, without going into detail 107 Such claimed analysis is clearly insufficient to satisfy
the requirements of NEPA, particularly when the effects of bypasses on other communities are
considered
On average, retail sales decrease when a bypass is built around a community 108 Already,
from 1990 to 2006, retail sales have decreased in Craven County In 1990, 4,481 people were
employed in retail By 2006, the number decreased to 4,187 109 So, while the DEIS shows
employment growth in Craven County from 1990 to 2006, in the breakdown by sector, retail
suffered 110 This decrease in retail trade will likely be exacerbated by the bypass Research has
shown that retail businesses that cater to pass - through traffic, such as gas stations and fast food
restaurants, are the most likely to be impacted by reduced traffic 111 There are few opportunities
to relocate in the project area, as much of the land is National Forest While businesses that cater
to visitors attracted to the community are less likely to be negatively impacted from bypasses,
Havelock is disadvantage by not having much tourism 112
The consequences of this type of bypass are also revealed in studies that interview
business owners A majority of business owners surveyed in towns where a bypass had been
constructed believed the bypass had a mayor effect on their sales with a majority believing sales
had decreased 113 More than three quarters believed sales would have been better if the bypass
had not been built 114 Two thirds thought bypasses had a negative effect on the town as a
102 Id at 1 14
113 Id at 4 11
104 Economic Effects of Highway Relief Routes on Small and Medium Sized Communities at 1 93
105 Cahfornia Bypass Study The Economic Impacts of Bypasses Vol 1 Planning Reference at 3 Economic
Impacts of Highway Bypasses on Communities — Summary at 4
106 DEIS at 4 11
107 Id
108 Impact of a New Bypass Route on the Local Economy and Quality of Life at ii
109 DEIS 3 9 Table 3 9
110 Id
111 California Bypass Study The Economic Impacts of Bypasses Vol 1 Planning Reference at 3 Economic
Effects of Highway Relief Routes on Small and Medium Sized Communities at 98
112 California Bypass Study The Economic Impacts of Bypasses Vol 1 Planning Reference at 3
113 Case Studies of the Economic Impact of Highway Bypasses in Kansas at 60 64 68
114 Case Studies of the Economic Impact of Highway Bypasses in Kansas at 64 68
18

whole 115 Because the DEIS fails to adequately address the potential negative economic
consequences induced by the bypass, the DEIS should be revised to address these deficiencies
and fully study the issue
2 The DEIS does not evaluate the effects of Induced Growth
Of particular relevance to this project, are the indirect effects of induced growth 116
Induced growth effects include patterns "of land use, population density or growth rate, and
related effects on air and water and other natural systems, including ecosystems " 117
Consideration of induced growth and related issues "furthers the National Environmental Policy
Act's information and public awareness goals " 118 The DEIS fails to adequately examine the
indirect effect of induced growth that is likely to occur at the termini of the Preferred Alternative
and existing US 70 and at the intersection with Lake Road
Studies have found that bypasses tend to spur economic development where the new road
intersects with the existing road 119 The termini are northwest of Havelock at the intersection of
existing 70 with Hickman Hill Loop Road, and southeast of Havelock at the intersection of
existing 70 and McCotter Boulevard 120 In this case, the two termini are located outside the City
of Havelock in Craven County which does not regulate land use 121 If development is allowed
to occur around the termini unchecked by land use regulations, in addition to the economic
impact, it may likely lead to additional congestion at the termini that the Bypass is seeking to
avoid 122 The development induced at the termini may cause Craven County to request traffic
signals be installed to mitigate safety concerns, which will cause deterioration in traffic
Service 123 This exact scenario was documented in Texas, forcing the Texas Department of
Transportation to consider upgrades to the newly constructed bypass 124
The DEIS also notes that the Bypass will induce development near its interchange with
Lake Road 125 Development near interchanges is typical of bypass projects 126 However, the
induced economic development tends to cater to customers located outside of town, and not to
town residents 127 Retailers opening along a bypass tend to be new businesses instead of
relocated businesses because many existing businesses will choose to shut down instead of
relocate 128 The DEIS notes that there is a moderate potential that the bypass will cause
115 Case Studies of the Economic Impact of Highway Bypasses in Kansas at 64 68
116 40 C F R § 1508 8(b) Mullin v Skinner 756 F Supp 904 917 (E D N C 1990) ( It is an irrefutable reality that
the easier it is to get somewhere the more people will be inspired to do so )
117 40 C F R § 1508 8(b)
118 City of Carmel by the Sea v United States DOT 123 F 3d 1142 1162 (9th Cir 1997)
119 Economic Effects of Highway Relief Routes on Small and Medium Sized Communities at 97
... Id at 2 8
121 Id at 1 13 3 26
122 Id at 3 17
129 Id at 1 12 3 17
124 Economic Effects of Highway Relief Routes on Small and Medium Sized Communities at 98
125 DEIS at 4 94
126 California Bypass Study The Economic Impacts of Bypasses Vol I Planning Reference at 4 Case Studies of
the Economic Impact of Highway Bypasses m Kansas at 55
127 Case Studies of the Economic Impact of Highway Bypasses in Kansas at 55
128 Impact of a New Bypass Route on the Local Economy and Quality of Life at n
IL61

extensive land use change, but fails to detail these changes 129 While the City of Havelock has
stated that a comprehensive plan is necessary to deal with development along the bypass, no such
plan exists yet 13
The City of Clayton has been forced to deal with the issue of development along a bypass
in the 18 months since the US 70 Clayton Bypass opened 131 The City has found it necessary to
develop a special plan to handle development at the interchanges and termini of the bypass, but
developing the plan has caused strife within the community 132 A development has already been
proposed for one of the interchanges along the Clayton Bypass 133 The developers have already
requested NCDOT expand the local road to accommodate traffic between the development and
the bypass 134
The DEIS acknowledges how development requires improvements to existing US 70 to
accommodate anticipated increases in traffic 135 It then fails to take a hard look at the impact of
the same type of development that will happen as a result of the bypass, and the subsequent
inability of the preferred alternative to meet the goals of the protect Studies have shown that
bypasses like the proposed protect will induce development of some sort at its termini and
interchanges However, the DEIS fails to adequately examine the extent of this development, its
effects on the project's ability to meet the stated purpose and need or its environmental
consequences Such failings including the economic justification for and the economic impacts
of the Havelock Bypass should be studied in greater detail in a revised DEIS
C The DEIS fails to take a hard look at the cumulative effects of other land use
impacts in the vicinity of the project
When preparing an EIS, an agency must consider the cumulative impacts of its proposed
project 136 "The purpose of the cumulative impact analysis is to provide readers with a complete
understanding of the environmental effects a proposed action will cause „137
A cumulative impact is defined as
129 DEIS at 4 95
"0 DEIS at 4 14 4 94 to 4 95
131 http / /www claytonnewsstar com/2011/08/07/1396887/council approves bypass overlay html
132 http / /www claytonnewsstar com/2011/08/07/1396887/council approves bypass overlay html
http / /www claytonnewsstar com/2011 /07/20 /1577740 /encouragmg development should html
133 http / /www claytonnewsstar com/2011/09/25/1515165/development coming to nc 42 html
134 http / /www claytonnewsstar com /2011/09/25 /1515165 /development coming to nc 42 html
135 DEIS at 1 12 As the commercial district along US 70 in Havelock generates more business more traffic signals
become warranted to safely allow access to and across the route Each new signal delays through traffic and
deteriorates traffic service along the route Without improvements to accommodate the anticipated increases in
traffic the level of traffic service along US 70 will continue to deteriorate
136 40 C F R § 1508 25(c)(3) Cumulative impacts are distinct from cumulative actions Cumulative actions are
those which when viewed with other proposed actions have cumulatively significant impacts and should therefore
be discussed in the same impact statement 40 C F R § 1508 25 This requirement prohibits segmentation and
requires those actions which are all really part of the same protect to be considered together rathet than separated
into multiple NEPA documents Meanwhile cumulative impacts are impacts from past present and future actions
that may have an incremental impact on resources and are not necessarily elements of the same project
137 N C Alliance for Transp Reform, Inc v U S DOT 151 F Supp 2d 661 698 (M D N C 2001)
20

[t]he impact on the environment which results from the incremental impact of
the action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non Federal) or person
undertakes such actions Cumulative impacts can result from individually
minor but collectively significant actions taking place over a period of time 138
Therefore, reasonably foreseeable actions must be Included when considering cumulative
Impacts
A "reasonably foreseeable" action is one that is "sufficiently likely to occur that a person
of ordinary prudence would take it Into account in reaching a decision "139 An action that is
"highly speculative or Indefinite" is not reasonably foreseeable 140 In addition, a future action is
reasonably foreseeable if it is "`imminent,' `Inevitable,' or one that can be sufficiently concrete
that consideration of its effects would be `useful to a reasonable decision -maker "'141
Projects that are not yet finalized can be "reasonably foreseeable " In Western N C
Alliance, NCDOT prepared an EA for a highway pro�ect that expanded an existing highway and
was in the vicinity of three future NCDOT projects 1 2 The EA did not include the future projects
In Its cumulative impact analysis 143 The court stated that even though the designs were not
finalized, funding had not been allocated, and no environmental documents had been prepared,
the planning that had taken place for those projects was sufficient to "meaningfully evaluate"
their cumulative impacts 144
Like the EA challenged in the Western N C Alliance, the Havelock Bypass DEIS falls to
consider cumulative Impacts from other closely related NCDOT projects As the DEIS explains,
the Havelock bypass "is one of five US 70 projects east of Raleigh planned to Improve the US 70
corridor and to enhance statewide travel '1 5 Two of these projects will directly link with the
Havelock Bypass if the full Super 70 vision is Implemented These are the Northern Carteret
Bypass and the Gallants Channel Bridge
The Transportation Agencies appear to confuse the requirements for the consideration of
cumulative "impacts' with the consideration cumulative actions NEPA regulations require
an EIS to Include all connected and cumulative actions to ensure that projects are not improperly
segmented lab This makes certain that agencies considering a mayor action look at all related
138 40 C F R § 1508 7 (emphasis added)
139 Western N C Alliance v N C Dept of Transp 312 F Supp 2d 765 771 (E D N C 2003) (quoting Sierra Club
v Marsh 976 F 2d 763 767 (1 st Cir 1992))
140 Id (quoting Sierra Club 976 F 2d at 768)
141 N C Alliance for Transp Reform 713 F Supp 2d at 522 (M D N C 2010) (quoting Sierra Club v Marsh 976
F 2d 763 768 (1st Cir 1992) (stating that projects must have sufficient specificity to make their consideration
useful ))
142 Western N C Alliance 312 F Supp 2d at 771 73
143 Id
144 Id (holding that future projects were reasonably foreseeable where right of way acquisitions had been scheduled
and the NCDOT had decided on minimum design specifications)
14s DEIS 1 15
lab 40 C F R § 1508 25(a)
21

projects at once, rather than dividing a project into smaller segments to decrease the significance
of the environmental impacts 147 Cumulative actions are defined as those "which when viewed
with other proposed actions have cumulatively significant impacts and should therefore be
discussed in the same impact statement " and cover only proposed federal actions, rather than
non federal actions 148
The requirement that agencies not address major federal actions in a segmented manner is
distinct from the requirement under NEPA to address cumulative impacts As explained above, a
cumulative impact is defined as "the impact on the environment which results from the
incremental impact of the action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non Federal) or person undertakes such
other actions " 149 Cumulative impacts are therefore not limited to federal actions, they must
simply result from reasonably foreseeable actions A "reasonably foreseeable" action or impact
is one that is "sufficiently likely to occur that a person of ordinary prudence would take it into
account in reaching a decision 150 Because the Northern Carteret Bypass and the Gallants
Channel Bridge project are reasonably foreseeable their impacts should be accounted for in the
Havelock Bypass DEIS
The proposed Northern Carteret Bypass is a 33 1 mile four lane divided freeway in
Carteret County 151 It will directly link the Havelock bypass to the Gallants Channel Bridge
project in Beaufort 152 The purposes of the project include improving traffic safety, operations,
and access between Havelock and Morehead City, as well as improving access to the port at
Morehead city 153 Current cost estimates vary between $181 and $295 million, depending on
whether a superstreet or freeway is chosen 154 However, depending on the route chosen, costs
could go as high as $390 1 million 155 The project is currently unfunded 156 NCDOT is awaiting
a record of decision for the Havelock Bypass before planning a route for the Northern Carteret
Bypass 157
147 See, e a Wetlands Action Network v U S Army Corps of Eng_rs 222 F 3d 1105 1118 (9th Cir 2000)
148 40 C F R § 1508 25(a)(2) Similar actions which when viewed with other reasonably foreseeable or proposed
agency actions have similarities that provide a basis for evaluating their environmental consequences together such
as common timing or geography An agency may wish to analyze these actions in the same impact statement It
should do so when the best way to assess adequately the combined impacts of similar actions or reasonable
alternatives to such actions is to treat them in a single impact statement 40 C F R § 1508 25(a)(3) (emphasis
added)
14940CFR § 15087
150 Western N C Alliance 312 F Supp 2d at 771 (quoting Sierra Club v Marsh 976 F 2d 763 767 (1st Cir 1992))
151 North Carolina Department of Transportation Program Development Branch Northern Carteret Bypass
Feasibility Study 2 (July 22 2009)
152 http / /www ncdot org/projects/US70corridor/
153 Northern Carteret Bypass Feasibility Study at 2
154 US 70 Corridor Commission March 12 2009 Meeting Minutes at 3
155 Northern Carteret Bypass Feasibility Study at 10
156 US 70 Corridor Project Status Map http / /www ncdot org/prglects /US70corridor/
157 US 70 Corridor Commission January 13 2011 Meeting Minutes at 3 US 70 Corridor Commission October 14
2010 Meeting Minutes at 6
22

The final mayor section of Super 70 is a 2 2 mile replacement for the Gallants Channel
Bridge from Morehead City to Beaufort, TIP R 3307 158 Planning is complete and design is
underway for a 65' fixed span bride based on preliminary approval from the US Coast Guard,
and should be completed in 2012 1 9 Construction was originally scheduled to begin in 2015, but
was accelerated by 2 5 years and is now scheduled to start in July 2012 160 The project is a high
priority for several governmental organizations in the area 161 The project is expected to cost
between $73 4 and $105 million and is funded by the State Highway Trust Fund 162 The Gallants
Channel Bridge /Beaufort Bypass project includes the relocation of the current bridge between
Morehead City and Beaufort and the construction of five miles of connecting highway to link up
with existing US 70, and the Northern Carteret Bypass 163
The only mention of the North Carteret Project in the Havelock Bypass DEIS is that it is
a bypass from "Havelock to Beaufort paralleling the NC 101 corridor" that "is programmed for a
feasibility study only' 164 The Gallants Channel Bridge project is completely omitted from the
DEIS
In May 2007 internal NCDOT emails, the agency discussed whether the Northern
Carteret Project (sometimes referred to as the Havelock Connector) be included in the Havelock
Bypass cumulative impacts analysis The emails contained arguments of a federal agency that
the Northern Carteret project was reasonably foreseeable, despite it not being a part of the
Transportation Improvement Program at the time 165
Because the Havelock Connector/Northern Carteret Bypass and Gallants Channel Bridge
projects will both link to the Havelock Bypass, are also part of the US 70 Corridor Project and
are omitted from detailed study in the DEIS, the DEIS should be revised to include them and to
sufficiently evaluate the environmental impacts of the project
158 NCDOT Project Details TIP R 3307 available at http //www ncdot org/projects /search /details html #id =1678
US 70 Corridor Project Status Map http / /www ncdot oig/projects /US70coriidor US 70 Corridor Commission
July 2011 Director s Report at 6
159 US 70 Corridor Project Status Map http //www ncdot org/projects/US70corridor July 2011 Director s Report
at 2 May 12 2011 Meeting Minutes at 2 October 14 2010 Meeting Minutes at 6 August 12 2010 Meeting
Minutes at 7
160 US 70 Corridor Project Status Map http //www ncdot org/projects /US70cori idor July 14 2011 Business
Meeting Minutes at 2 January 13 2011 Meeting Minutes at 3
161 July 2011 Director s Report at 6 (Down East Rural Transportation Planning Organization) March 12 2009
Meeting Minutes at 4 5 (Carteret County Board of Commissioners Craven County Board of Commissioners Down
East Rural Transportation Planning Organization Havelock City Counsel)
162 US 70 Corridor Project Status Map http //www ncdot oig/prolects /US70corridoi
163 http / /www ncdot org/projects/US70corridor/
164 DEIS at 1 15
165 May 16 2007 email from Mary E Frazer NCDOT to Steve Simon USFS quoting email from Mary E Frazer
NCDOT to Mark Pierce NCDOT Steve Simon has been very insistent that we include other road projects
especially the (Havelock Connector) in the discussion of cumulative impacts The cumulative impacts regs that
USFS is using are from NEPA same as we use However Steve argues that the [Havelock Connector] is
reasonably forseeable even though it is not on the TIP schedule and is concerned about how this creates potential
for a lawsuit He says that USFS will NOT accept the EIS without consideration of these cumulative effects How
shall we proceed?
23

D The DEIS fails to take a hard look at the effects of the project on air quality
An EIS should rigorously examine air quality impacts of a proposed project The DEIS
for the Havelock Bypass fails to do so Rather than conducting a thorough investigation into the
impacts of the proposed project on air quality, the DEIS contains stock language on the effects of
various air pollutants on health and the environment 166 The use of stock language on air quality
and air pollutants is not the "hard look" required by NEPA and does not enable informed
decision making
Further, the only air quality analysis tailored to the Havelock project is a study performed
in 1995 This study has not been updated in the 16 years since it was produced This is contrary
to CEQ regulations requiring agencies to "insure the professional integrity, including scientific
integrity, of the discussions and analyses in environmental impact statements "167 The
regulations also state that "[a]ccurate scientific analysis" is essential to implementing NEPA 16s
IV The DEIS Violates NEPA By Failing to Thoroughly Analyze a Reasonable Range
of Alternatives to the Bypass
The N C Department of Transportation first proposed the Havelock Bypass in the City of
Havelock's 1979 thoroughfare plan 169 A TIP number was assigned in 1983, and preparations
for an Environmental Impact Statement began in 1992 170 In December 1996, before the
Environmental Assessment ( "EA ") was completed, the Preferred Alternative was selected 171 In
1997, the decision was made to prepare an Environmental Assessment instead of an
Environmental Impact Statement 1 The Environmental Assessment was approved in January
1998 and the Preferred Alternative selected in 1996 was selected as the Least Environmentally
Damaging Preferred Alternative in August 1998 173 While a Mitigated Finding of No Significant
Impact ( "FONSI ") was developed, it was abandoned when the Federal Highway Administration
determined that an Environmental Impact Statement ( "EIS ") was indeed necessary 174
When the decision was made to write a DEIS, the document "would also include updated
traffic projections and analysis, more community impact studies, and indirect and cumulative
impacts studies "175 Largely this has not happened
166 See March 20 2007 email from David G Modlin TGS Engineers to Mark Pierce NCDOT ( it is my
understanding that KO will not be producing an air quality analysts and that you will be cutting and pasting the
standard verbiage to be used in the DEIS Report )
16740CFR § 150224
168 40 C F R § 1500 1(b) see N C Alliance for Transp Reform, Inc v United States DOT, 151 F Supp 2d 661
695 (M D N C 200 1) (holding that an air quality analysis that used outdated technology violated NEPA where the
agency s decision not to update the FEIS with more accurate air quality data prevented decision makers and the
public from more fully understanding the effect on air quality that the [proposed project] would have )
69 DEIS at 1 1
17o Id at 11 to 1 2 1 5
171 Id at 2 33 2 34
172 Id at 1 2 234
173 Id at S 7 1 2 to 1 4 2 34
174 Id at 1 3 1 4 234
175 Id at 2 34
24

The Improve Existing US 70 Alternatives were dismissed by NCDOT in 1996 based on
traffic operation analyses 176 While NCDOT claims to have "revisited" the alternatives in the
DEIS, no new data was used in the consideration 177 Likewise, many of the possible corridors
for the bypass were eliminated from consideration in 1995, before the right of -way impact
evaluation took place in 1998 178
NEPA requires agencies to analyze all environmental impacts of their proposed action 179
The analysis of environmental impacts is essential to the NEPA process because it "forms the
scientific and analytic basis" for comparisons between different alternatives 180 The DEIS for the
Havelock Bypass fails to fulfill this fundamental requirement of NEPA Many environmental
impacts are dealt with summarily, and in some cases completely ignored Those impacts which
are documented are often based on outdated information, and therefore do not provide a sound
basis for comparison among alternatives
A NEPA requires a meaningful alternatives analysis
NEPA directs agencies to prepare a "detailed statement" of alternatives to the proposed
federal action 181 CEQ regulations require agencies to "[r]igorously explore and objectively
evaluate all reasonable alternatives 18'1' "informed and meaningful consideration of
alternatives - including the no action alternative is an integral part of the statutory scheme'
1 a3
The agency must "[d]evote substantial treatment to each alternative considered in detail,
including the proposed action, so that reviewers may evaluate their comparative merits "184 Only
those alternatives that are deemed to be unreasonable can be eliminated from the study 1
Detailing all realistic possibilities forces the agency to consider the environmental effects of a
project and to evaluate those against the effects of alternatives 186
Thus, a highway project DEIS "should consider all possible alternatives to the proposed
freeway, including changes in design, changes in the route, different systems of transportation
and even abandonment of the project entirely "187 "Each alternative should be presented as
thoroughly as the one proposed by the agency, each given the same weight so as to allow a
reasonable reviewer a fair opportunity to choose between the alternatives '188 By dismissing
functional alternatives without thorough review the Havelock Bypass DEIS falls short of
meeting this required legal standard
176 Id at 2 20 to 2 21 2 27
177 Id at 2 20 to 2 21 2 27 2 34
1711 Id at 2 19 2 27
179 40 C F R § 1502 16
"0 40 C F R § 1502 16(d) Accordingly the impacts must be discussed in proportion to their significance
Citizens Against Burlington, Inc v Busey 938 F 2d 190 200 (D C Clr 199 1)
181 42 U S C § 4332(C)(m)
182 40 C F R § 1502 14(a)
183 Friends of Southeast Future v Morrison 153 F 3d 1059 1065 (9th C1r 1998)
M 40 C F R § 1502 14(b)
115 40 C F R § 1502 14(a)
186P1edmont Heights Civic Club Inc v Moreland 637 F 2d 430 436 (5th C1r 1981)
187 Keith v Volpe 352 F Supp 1324 1336 (D Cal 1972)
188 Rankin v Coleman 394 F Supp 647 659 (E D N C 1974)
25

B The DEIS improperly restricted the detailed analysis to three alternatives
The DEIS describes only three alternatives in detail Each of these Involves a new
location bypass being constructed through the Croatan National Forest Functional alternatives,
like Transportation System Management were eliminated at an early stage in proceedings Two
variations on upgrading the existing US 70 highway corridor were considered, with one being
eliminated at a very early stage, and the other not being considered as a detailed study
alternative Of the three alternatives that were considered in detail, Alternative 3 was selected 189
The decisions about alternatives were made as early as 1996, well before FHWA and NCDOT
began to work on this Draft EIS
Discussion of alternatives other than a new location bypass occupy only eight pages of
the DEIS The DEIS rejects all reasonable alternatives to the proposed action on the basis that
they are incapable of meeting the goal of "enhancing the ability of US 70 to serve the regional
transportation function in accordance with the Strategic Highway Corridors Plan190," which is, in
short, to build a freeway
C The DEIS focus on the US 70 Corridor Project artificially narrows the basis
for selection of alternatives
NEPA regulations require the Agencies to provide a statement specifying "the underlying
purpose and need to which the agency is responding in proposing the alternatives Including the
proposed action' 191 An agency may not "narrow the objective of its action artificially and
thereby circumvent the requirement that relevant alternatives be considered," 192 rendering the
EIS a "foreordained formality "193 One of the primary purposes of the project is to enhance the
ability of US 70 to serve the regional transportation function in accordance with the Strategic
Highways Corridors Plan 194 Here the DEIS becomes a formality because of the focus on
completing the bypass as a part of the US 70 corridor project, and the justification for the US 70
Corridor project Itself is questionable
The Super 70 project, also called the U S 70 Corridor project was designated as one of
North Carolina's priority long range, statewide transportation projects in 2004 195 The Super 70
commission aims to provide freeway access that extends from 140 to the port in Morehead
City 196 The principle goals of the Highway 70 corridor are to "enhance the economic prospects
of North Carolina's southeast region by providing efficient movement of travelers and goods
along the corridor from the central region of the state to important shipping ports and vacation
169 DEIS at 2 33
190 Id at 2 2
'9'40 CFR § 1502 13
192 City of New York v Dep t of Transp 715 F 2d 732 743 (2d Cir 1983)
t93 Citizens against Burlington, Inc at 196
194 DEIS at 1 7
195 Kleckley James U S Highway 70 in Eastern North Carolina Improvement Impact on Local Economies and
Inter Modal Transportation Bureau of Business Research East Carolina University (March 2011) p 1
196 This partnership is represented by the US 70 Corridor Commission whose vision is to transform US 70 into a
freeway from Interstate 40 to the coast http / /www super70corridor com/
Pill

destinations on the coast, and to increase travel safety "197 The goals of the US 70 Corridor
project are unrealistic and unlikely to be achieved by completion of the Havelock Bypass
First the construction of the new location bypass without upgrading the existing route
through Havelock has not been shown through quantifiable data to improve safety within the US
70 Corridor Then, long term freeway access with no lights from Raleigh to Morehead City is
also unlikely, as the induced growth at the termini of the Havelock Bypass will likely result in a
need to control access, thus requiring a re introduction of traffic signals Next, the economic
goals of the Super 70 Corridor project are unlikely to be achieved, as getting travelers to the port
and vacation destinations on the coast, has not been shown to create enough commerce along the
route to offset the loss of commerce to bypassed businesses Further, getting freight to and from
the small port at Morehead City has not been shown to significantly contribute to economic
growth in southeastern North Carolina 198 The viability of the port as an economic engine for the
state is highly questionable based on this data, and the DEIS does not show otherwise
For these reasons, The US 70 Corridor Project artificially narrows the selection of
alternatives, and is unproven in its potential to benefit eastern North Carolina
D The DEIS fails to provide quantifiable data to determine if the detailed study
alternatives actually meet the project goals of safety and improved mobility
The DEIS fails to provide sufficient data on Levels of Service at
intersections along the existing route including safety
First, while the DEIS claims that levels of service are improved by selecting the preferred
alternative over the no -build alternative, it does not provide sufficient data to substantiate the
claim Level of Service ( "LOS ") is the effect of a number of factors such as speed, travel time
traffic interruptions, freedom to maneuver, driving comfort, convenience and safety 199 Six
levels are defined from A to F, with A being the most desirable level 200 In this case, the data on
levels of service at intersections should assist the decision -maker in discerning how a particular
intersection functions It provides a basis for comparing whether changes will allow it to
function at a higher level of service
The DEIS states that two of the fourteen intersections with traffic signals were operating
at undesirable levels of service in 2008, but only provides level of service information for four of
197 Kleckley James U S Highway 70 in Eastern North Carolina Improvement Impact on Local Economies and
Inter Modal Transportation Bureau of Business Research East Carolina University (March 2011) p 2
198 Port business at Morehead has declined Over the last ten years traffic to the port trended downward reaching a
low point in 2009 At its highest point over the past decade in 2001 2 757 176 tons of cargo came through the port
In 2010 1 768 712 tons of cargo entered the port Not surprisingly the number of ships and barges passing through
the port have also varied and trended downward over the last ten years At its high point in 2001 177 ships and 521
barges entered the port whereas in 2010 only 122 ships and 465 barges entered North Carolina Port Authority
Statistics available at
http / /www ncports com/userfiles /MHC %20FY% 202010 %20STATS %20WEBSITE %20UPDATE pdf
199 DEIS at 1 17 to 1 18
zoo Id at 1 17 to 1 18
27

the intersections and not the other ten 201 Based on the information provided in the DEIS, the
decision making agencies cannot know whether these four intersections are the root cause of
congestion or whether factors at the other ten contribute to the problem
The DEIS also notes that "None of the existing signalized intersections will
accommodate the forecasted design year 2035 design hour traffic at an acceptable level of
service" under a no build scenario, but also show that after construction "the existing route,
while improved from the no build option, will still experience poor traffic operations with local
traffic use by the design year "202 The statement that existing US 70 would be "improved from
the no build option" is misleading Under the No -Build scenario the intersections would provide
a level of service of F seven instances out of eight, with the eighth providing LOS E
Constructing the bypass would raise only one of these instances from F to D 203
The selection of the detailed study alternatives is also not supported through the data on
safety in the project study area The DEIS must consider alternatives to the proposed action that
may partially or completely meet the proposal's goal and it must evaluate their comparative
merits 204 One of the proposed goals of the proposal is to improve safety, but the preferred
alternative has not been shown to significantly advance that purpose relative to other potential
investments For instance Craven County had the highest number of crashes of all the Super 70
counties over 3 years at 1,194 205 The Bypass area has a crash rate of 150 18 / 100 MVMT
above the county average along US 70 of 116 29 206 However, the Bypass would only avoid one
of the four most dangerous intersections along US 70 in Craven County, US 70 and NC 101 /
Fontana Boulevard / Miller Boulevard in Havelock 207 The other three, US 70 and Williams
Road in James City, 208 US 70 and Grantham Road in James Crty,209 and US 70 and US 17 in
New Bern 210 would be unaffected Likewise, the Bypass would only avoid one of the two most
dangerous sections of US 70, between Webb Street and Shepard Street in Havelock 211 While
the DEIS notes that crash rates along existing US 70 exceeded the state averages for four lane
roads with partial or fully controlled access, the DEIS provides no quantifiable data that a new
location bypass will actually reduce accident rates along this section of road 212
2 The narrow goal of uninterrupted service "for the project area is not
supported by data on through and local trip tames
The narrow purpose espoused in the DEIS foreordains the selection of a new location
bypass as the recommended alternative It is rooted in an artificially constricted conception of
201 Id at 1 6 1 19
202 DEIS at 1 20 2 28 to 2 29
203 Id at 1 20 2 29
204 Natural Resources Defense Council v Callaway 524 F 2d 79 93 (2d Cir 1975)
205 US 70 Corridor Commission Crash Summary 2004 2007 Craven County at 2
206 Id at 1 2
207 Id at 2
208 Id
209 Id North Carolina Department of Transportation Traffic Safety Systems Section 2010 North Carolina Highway
Safety Improvement Program (April 20 10) (hereinafter 2010 HSIP) at 25
210 2011 HSIP at 53
211 Crash Summary 2004 2007 Craven County at 2
212 DEIS at 1 7
28

the project need namely, US 70's diminished ability "to function as envisioned in the Strategic
Highway Corridors Plan "213 The DEIS chooses to find needs in the claim that "[t]he lack of
access control substantially reduces the mobility of this corridor and that [ t]raffic signals
prohibit uninterrupted service[ ]' 214
While there may be a need identified in the statement — to improve the safety and
mobility of the corridor — the language chosen by the Transportation Agencies blames the
absence of uninterrupted service as the root of the problem without adequate justification
Instead of seeking to improve mobility along the corridor, with a variety of solutions, the
Transportation Agencies have chosen to seek uninterrupted service, necessarily requiring a
bypass The DEIS thus views the absence of a freeway in the corridor as a specific need to
remedy
Because the DEIS frames the problem of US 70 as the lack of a freeway, the analysis that
follows including the project purpose, necessarily restricts itself to this narrow framework
Although the project purpose cites a need "to improve mobility" within the study area, the DEIS
specifies that the solution must provide "uninterrupted service" as well to "meet the goals and
long term visions of the Strategic Highway Corridors Plan ( "SHC ") "215 Of course the SHC
Plan "is ultimately envisioned as a controlled access, median divided freeway[ ] "216 In short, the
project's purpose is to improve mobility by building a freeway The project's purpose does not
include improving mobility by adopting any alternative other than a freeway This condition
thus collapses the project purpose into the narrow goal of building a freeway The DEIS appears
to advance the notion that the SHC concept and other "tools to influence" planning should
displace an objective analysis of alternatives under NEPA They do not
The DEIS does not support this narrow goal with any specific, empirically verifiable data
such as average travel times between the Port of Morehead City and Interstate 95, average trip
times between Raleigh and beaches in Carteret County or local commute times In the eight
references to travel times in the DEIS the document states simply that travel times will be
reduced by construction of the Havelock Bypass 217 The study does not include actual current
travel times vs projected future travel times for the Bypass or for any other alternative Further,
while there are at least seven mentions of how traffic lights slow traffic on the existing route,
there is no comparison of how the existing route could be improved by enhanced timing
signalization 21
E The DEIS fails to adequately consider a cumulative, reasonable upgrade
existing alternative
The consideration of alternatives is "the heart of the environmental impact statement "219
The EIS must consider alternatives to the proposed action that may partially or completely meet
213 Id at 1 6
214 Id at 1 6
211 Id at 1 6
216 Id
217 Id at17 1 14 48 49 411 417 481 and 489
211 Id at 1 6 2 3 2 8 4 8 4 11 and S4
219 40 C F R § 1502 14
29

the proposal's goal and it must evaluate their comparative merits 220 Considering alternatives
that only partly meet the project goals allows the decision maker to consider whether meeting
part of the goal with less environmental impact may be worth the tradeoff with a preferred
alternative that has greater environmental impact 221 A feasible alternative to the proposed
action, that can still address the project goals of improving safety in the corridor and enhancing
mobility, should be considered That alternative combines access management, converting some
segments of the existing corridor to a "superstreet 'design and increased rail capacity
Incorporation of short term and long term suggestions from its own US 70
Access Management Study in the DEIS
In July 2005, NCDOT released the "US 70 Access Management Study' 222 for the portion
of US 70 running from Clayton to Morehead City, NC The study "evaluate[s] existing
operational characteristics and safety concerns along the corridor and develop[s] a conceptual
access management plan that reinforces the primary function of this strategic corridor for
providing mobility between regional destinations " 223 The study underscores the importance of
access management as a tool for improving roadway performance It states that "[o]ne of the
most useful tools employed by transportation professionals for protecting mobility within these
types of corridors is access management whereby the location spacing design and operation of
driveways median openings and street connections are controlled in a systematic predictable
manner "224 Importantly the study states that in general "no single improvement will solve
transportation issues along US 70, but together, the phased improvements recommended in the
plan facilitate a safer, more systematic, predictable and efficient transportation corridor "225
Six of the segments examined in the study are located in Craven County Three of these
segments (Craven 1, Craven 2 and Craven 3) are located west of the proposed bypass The three
remaining segments (Craven 4, Craven 5 and Craven 6) either connect to the proposed bypass or
will be circumvented by the bypass 226
The study provides short term and long term recommendations for each segment Short-
term recommendations include median closures, mainline directional crossovers, signal removal,
median U turns, raised medians and signal coordination The long term recommendations for
Craven 4 Craven -5 and Craven 6 assume the building of the Havelock Bypass (e g
"connections to TIP# R 1015 Havelock Bypass ") They also, however make numerous
recommendations including service road extensions, closure of access points and median
openings ramp over interchanges installation of raised medians, signal removal and cross parcel
220 Natural Resources Defense Council v Callaway 524 F 2d 79 93 (2d Cir 1975)
221 North Buckhead, 903 F 2d at 1542
222 Kimley Horn and Associates Inc 2005 US 70 Access Management Study Clanton to Morehead City, NC July
2005
223 Kimley Horn and Associates Inc 2005 US 70 Access Management Study Clayton to Morehead City, NC July
2005 p 1
224 US 70 Access Management Study p 1 2 (emphasis added)
225 US 70 Access Management Study p 22
226 Maps of these segments are available at www ncdot org/ projects/ US70corridor /download/phase2_maps_17
22 pdf and www ncdot org/projects/US70con idor /download/phase2_maps_23 27 pdf
30

access streets The study states specifically that "coordination of traffic signals in the more
urban areas of the corridor could demonstrate improved travel times and safety along US 70 55227
Similar enhancement measures are addressed in a cursory fashion in the Transportation
System Management ( "TSM ") section of the DEIS The Agencies describe TSM measures as
traffic signal timing optimization, speed restrictions, access control and physical improvements
such as turning lanes, high occupancy vehicle ( "HOV ") lanes and intersection realignments 228
After setting out what TSM measures are, the DEIS goes on to dismiss the measures as being
unable to reduce traffic congestion enough to improve the levels of service on US 70 to an
acceptable level, but provides no data to substantiate the statement In fact, discussion of TSM
in the DEIS is less than four pages
As a measure that forms part of a viable alternative to building a bypass around US 70 in
Havelock the DEIS should include additional data about the costs and effectiveness of access
management The Agencies should update and expand the US 70 Access Management Study
and further analyze the measures proposed by that study, and they should outline the costs and
effectiveness of access management measures associated with more minor improvements such as
closing median breaks and rerouting driveway access along US 70 Combined with other
measures, access management could improve mobility more than a bypass alternative at a lower
cost, but there is no way of knowing with any certainty on the basis of the cursory description
offered in the DEIS
2 The DEIS fads to consider upgrading the existing route through a
superstreet alternative
While the DEIS considered an Improve Existing alternative, it did not fully examine all
upgrade options for the existing road One option not considered was upgrading the existing US
70 to a superstreet 229 A superstreet would meet all or most of the underlying aims of the
purpose and need 230 Superstreets are specifically designed to handle congestion caused by
traffic signals and left turning traffic 23 Because a superstreet does not impact adjacent
businesses in the same manner as many other upgrades, they are less likely to cause the negative
economic impacts associated with restricted access options or a bypass 232 They can be built
without traffic signals, although signals may be necessary in busy locations At a cost of
$105,000 per intersection they are much less expensive than a bypass and can save money in the
long run 213
227 US 70 Access Management Study p 20
22' DEIS at 2 2
229 Superstreet Benefits and Capacities at iv 1
230 http //www ncdot org/ doh / preconstruct/ tpb /shc /pdf/Superstreet_Brochure pdf
231 Guidance on the Safe Implementation of Unconventional Arterial Designs at 1 4 16
232 Superstreet Benefits and Capacities at 1 Economic Effects of Access Management Techniques in North
Carolina at iv vi
233 Guidance on the Safe Implementation of Unconventional Arterial Designs at 4 10 Superstreet Benefits and
Capacities at 128
31

Superstreets can provide traffic benefits when other alternatives are unavailable or
unfeasible, and have been shown to reduce travel time in multiple situations 234 In fact, a study
commissioned by the NCDOT concluded that superstreets are "a viable option for upgrading
arterials where low volume, two lane roads meet a high- volume, divided, four , six , or eight -
lane arterial "235 The study noted that superstreets are `best suited for divided arterials with high
through and left turn volumes on the mayor road "236 That study also recommended "building
superstreets as a corridor rather than a single, isolated intersection where possible' 237 In sum,
the study concluded that superstreets are a viable option for roads such as US 70 though
Havelock As such, superstreets in combination with other upgrades should be considered in the
revised DEIS as an alternative upgrade to the existing roadway
3 The DEIS fails to adequately consider rail to reduce demand on US 70
thereby improving level of service
a Freight rail
While further Improvements to infrastructure are planned to start in Morehead City to
facilitate Increased freight travel by rai1,238 railroads are only mentioned as a mode of
transportation in three locations in the DEIS In each Instance, the DEIS states that there are two
freight railroads operating in the project area, one privately owned and one owned by the federal
government, and that neither offer passenger service 239 The US 70 Commission recognizes the
need for rail service between the port in Morehead City and Global TransPark to avoid
congestion on US 70 240 For example, one planned Improvement is for North Carolina Railroad
( "NCRR ") to Install a second line along more sections of track and to upgrade signals 241 These
upgrades would allow freight trains to reach speeds of up to 79 MPH 241 NCDOT is also
studying whether to relocate existing train tracks from their downtown locations to follow the
Super 70 corridor 243 Still, in the DEIS, rail is dismissed from consideration as a component of a
multi modal transportation system without any analysis There are currently 3,230 miles of
freight railroads In North Carolina 244 Freight rail employs 2,237 people in North Carolina with
average wages and benefits of $92 300 245 Adjusted for inflation, the cost of freight rail in the
U S has dropped by more than 50% over the past 30 years 246 As a result, freight rail rates in the
234 Superstreet Benefits and Capacities at 1 54 124
235 Superstreet Benefits and Capacities at 128
236 Superstreet Benefits and Capacities at 128
237 Superstreet Benefits and Capacities at 128
238 Highway 70 Corridor Commission March 17 2011 Meeting Minutes at 5
239 DEIS at 1 10 to 111 2 7 3 30
240 March 17 2011 Meeting Minutes at 5
241 Id
242 Id at 6
243 Id at 5
244 Association of American Railroads Freight Railroads in North Carolina at 1
245 Id at 1
246 The Economist American Railways High Speed Railroading (July 22 20 10) available at
http / /www economist com /node /16636101 Association of American Railroads The Cost Effectiveness of
America s Freight Railroads at 1 (2011)
32

U S are the lowest in the world 247 Because of the benefits of freight rail and its potential to be
enhanced in the project study area, it should have been more thoroughly studied in the DEIS
b Passenger rail
The DEIS correctly notes that there are two railroads currently servicing Havelock and
that neither offers passenger service at this time 248 However, Amtrak announced in a
presentation to the Super 70 Highway Commission in January of this year that it was considering
expanding service into eastern North Carolina 249 The company is considering two dedicated
thruway routes in eastern North Carolina, one of which would stop in Havelock 250 That train
would depart Raleigh and stop in Wilson, Greenville Kinston, New Bern, and Havelock before
endin in Morehead City 251 Amtrak predicts a first -year ridership of 13,000 trips for this
route 52 Amtrak has specifically cited the military population of eastern North Carolina as a
reason for considering expansion into the area 253 Amtrak has seen a 54% increase in ridership
in North Carolina in the past five years, reaching 800 000 boardmgs and de- boardmgs in North
Carolina in 2010 254 As was noted at the presentation a majority of Amtrak services travel at
relative high rates of speed, which would make them a time effective alternative means of
transportation for vacationers travelling between Raleigh and the beach 255 The Amtrak plan
received interest from the Super 70 Highway Commission and has been endorsed by local
governmental agencies 256 Because the Amtrak plan is supported by the Super 70 Highway
Commission, because it could alleviate through traffic congestion on the existing corridor and
because it could provide access for travelers to Morehead City and Carteret county beaches,
passenger rail should have been considered in greater detail in combination with other upgrade
existing alternatives
V Alternative 3 Cannot Be Selected as the Least Environmentally Damaging
Practicable Alternative
The stated project purpose — to build a freeway— essentially restates the specific project
design desired from the outset by the Transportation Agencies rather than identifying the
primary underlying purpose of the project As such, it is too narrow to support consideration of
the reasonable range of alternatives required by the National Environmental Policy Act
Consequently it is also insufficient to support the identification and permitting of the least
damaging practicable alternative that meets the underlying purpose of the project, as required
under Section 404 of the Clean Water Act
247 Carolina Railroad Company Track Improvements available at http / /www ncrr com/ncrr track html at 2
24" DEIS at 1 10 2 7
249 Super 70 Corridor Commission Meeting Minutes (January 13
Minutes (March 13 2011)
250 Super 70 Corridor Commission Meeting Minutes (January 13
251 Super 70 Corridor Commission Meeting Minutes (January 13
252 Super 70 Corridor Commission Meeting Minutes (January 13
253 Super 70 Corridor Commission Meeting Minutes (January 13
254 Super 70 Corridor Commission Meeting Minutes (January 13
255 Super 70 Corridor Commission Meeting Minutes (January 13
256 Super 70 Corridor Commission Meeting Minutes (January 13
Minutes (March 13 2011)
33
2011) Super 70 Corridor Commission Meeting
2011)
2011)
2011)
2011)
2011)
2011)
2011) Super 70 Corridor Commission Meeting

Under Section 404 of the Clean Water Act, permits for dredged or fill material must be
evaluated through the application of the 404(b) Guidelines 257 Those Guidelines provide that a
permit application must be denied if there is a practicable alternative to the proposed project that
has a less adverse effect on the aquatic ecosystem if the proposed project would result in
significant degradation, or if there is not sufficient information to make a reasonable judgment
that the project will comply with the guidelines 258 A permit application must be rejected if it
meets any of these conditions
The DEIS omits the information that is necessary to conduct the analysis required by the
404(b)(1) Guidelines Those Guidelines require the DOT to evaluate the effect of the proposed
project on substrate, water circulation, turbidity, contamination, and aquatic ecosystems and
organisms 259 The DEIS's discussion of the potential impacts of the proposed highway is
cursory, superficial, and fails to make an effort to compare and contrast these potential impacts
between alternatives Without support it summarily states that "[n]o substantial adverse long
term impacts on water quality are anticipated as a result of any of the alternatives for the
proposed project "260 The project cannot be authorized based on the DEIS because "[t]here does
not exist sufficient information to make a reasonable judgment as to whether the proposed
discharge will comply with the[] Guidelines "261
In addition, the DEIS fails to document any efforts that have been made to avoid and
minimize impacts to streams and wetlands within the alternative corridors Protection of aquatic
ecosystems under the Clean Water Act and the state program is based on a sequential analysis of
avoiding impacts that can be avoided, minimizing impacts that cannot, and mitigating for harm
from unavoidable impacts 262 Yet the DEIS assumes that the proposed impacts for each
alternative are justified without providing any analysis demonstrating that appropriate avoidance
and minimization of impacts has implemented The LEDPA cannot be selected based on the
DEIS because the alternatives analysis "does not include all appropriate and practicable
measures to minimize potential harm to the aquatic ecosystem "26
Moreover based on the information contained in the DEIS, Alternative 3 cannot be
selected as the Least Environmentally Damaging Practicable Alternative ( "LEDPA ") Notably,
the DEIS does not eliminate either Alternative 1 or 2 as impracticable According to the DEIS
Alternative 2 affects significantly fewer wetlands ( >30 %) than Alternative 3 overall 264
Alternative I affects fewer streams and wetlands both overall and within the Croatan 265
Although significantly more analysis under the 404(b)(1) Guidelines is necessary to evaluate the
difference in these impacts it does not appear that Alternative 3 can be selected as the LEDPA
21' 33 U S C § 1344(b)
258 See 40 C F R § 230 12(a)
21940CFR § 230 11
260 DEIS at 4 49
26140 C F R § 230 12(iv)
262 See 15A N C Admm Code 02H 0506
26' 40 C F R § 230 12(111)
264 DEIS at 4 51
265 Id
W, I

because "[t]here is a practicable alternative to the proposed discharge that would have less
adverse effect on the aquatic ecosystem "266
VI The DEIS Unlawfully Excludes a 4(f) Analysis
Under federal law, the U S DOT "shall not approve any program or project which
requires the use of any publicly owned land from a public ark, recreation area, or wildlife and
waterfowl region of national, State or local significance "2F7 The EIS appropriately identifies
this restriction on DOT action, but then inappropriately restricts its scope and determines that it
is inapplicable to the proposed project As discussed below, DOT must conduct a 4(f) analysis
before any impacts to the Croatan National Forest can be approved because each of the proposed
corridors would affect designated wildlife areas, gameland, and significant natural heritage areas
that are protected by the statute
Section 4(f) recognizes the importance of public lands and requires their essential
purposes to be protected As FHWA's regulations implementing the statutory requirements
detail, the prohibition on impacts to public lands apply to any lands "which function for, or are
designated in the plans of the administering agency as being for, significant park, recreation, or
wildlife and waterfowl refuge purposes "26 8 This recognition of that public lands that either
function or are designated for the protected purposes fall under the statute's protections has been
recognized by the Second Circuit It held that the plain language of the statute had "no
requirement that the public parklands to which it applies be permanently designated as such, and
we decline judicially to engraft such a requirement on the statute given the Congressional policy
expressed in the statute that parklands be afforded heightened protection' 269 In other words,
land is a Section 4(f) resource if it is "`designated or administered, formally or informally[,]' for
a purpose identified in section 4(f) " 270
To be sure any of the three proposed corridors studied in detail in the DEIS would
significantly affect public lands that function for, or are designated as, wildlife and recreational
areas These public lands require a 4(f) analysis because of their recognition as RCW habitat
black bear habitat gamelands, and significant natural heritage areas
Most notably, the area that would be affected by the proposed highway functions as
habitat for RCW and large portions has been designated as habitat management areas for future
expansion of RCW populations As noted in the DEIS, the proposed bypass would affect six
current RCW colonies and four recognized HMAs These areas an HMAs are critical to meeting
the LRMP s long range goal of "[r]ecover[mg] a viable population and would directly affect the
266 40 C F R § 230 12(1)
267 23 U S C § 138(a)
26' 23 C F R § 774 11(d)
269 Stewart Park and Reserve Coalition v Slater 352 F 3d 545 555 564 (2nd Cir 2003) )
270 Mullin v Skinner 756 F Supp 904 924 (E D N C 1990) (quoting Coleman 529 F 2d at 370) see also Stewart
Park 352 F 3d at 550 557 (holding that the uninterrupted and purposeful use by the public of the affected lands
for hunting fishing hiking biking birdwatchmg horseback riding and numerous other outdoor pursuits for
almost 30 years made that land a 4(f) resource despite being originally acquired for transportation purposes and
never permanently designated as parkland)
35

objective of "[m]aintam[mg] the existing 12,000 acres of longleaf pine forest type as pine
savanna »271 '
Moreover, portions of the property are designated as black bear sanctuary by the` N C
Wildlife Resources Commission As part of the LRMP, the Forest Service has identified a coal
of providin "suitable habitat conditions for long term viability of the black bear population on
the CNF "272 To do so, the plan aims to provide "landscape linkages to other bear habitat and
potential foraging areas on public and private land "273 The sanctuary land that would be
affected by the proposed highway currently connects public and private land, providing this type
of landscape linkage In its recent draft Black Bear Management Plan, the N C Wildlife
Resources Commission reports that nearly a quarter of all black bear harvest on game lands in
the Coastal Bear Management Unit occurred in the Croatan 274
As the DEIS acknowledges, two natural areas that have been specially recognized by the
N C Natural Heritage Program would be affected by the proposed project, though the extent
depends on the chosen alternative The Southwest Prong Flatwoods Natural Area is recognized
as being state significant, meaning it is among the best occurrences of that type of wildlife
community in North Carolina The Havelock Station Flatwoods and Powerhne Corridor Natural
Area has been recognized as regionally significant, meaning that it is among the most
outstanding examples of that wildlife community in the surrounding region
The portions of the Croatan that would be affected by the project also hold recreational
value Recreation is, in fact, one of the Forest Service's priorities under its current plan The
LRMP identifies increasing non traditional recreational opportunities such as biking and
equestrian as well as expanding hunting, fishing, and wildlife related recreational opportunities
as two issues to be addressed in management decision making 275 The DEIS recognizes these
uses, describing the forest as "gameland open to fishermen and hunters with the proper licenses
and permits "276
In addition, staff at both the FWS and FHWA has recognized that this project must
undergo 4(f) review because of its impacts on the Croatan National Forest In 1998, the FWS
criticized the EA for being incomplete for failing to address Section 4(f) based on the
"understanding that National Forests have been established using Federal funding and among
their purposes are use and enjoyment of recreational opportunities by the public "277 More
recently, an FHWA engineer observed that `[t]here seem to be 4f issues associated with this
project Given that the proposed bypass will destroy portions of USFS lands designated►for
recovery of the federally endangered RCW how would this not be a 4f issue ? "27
271 LRMP at 46
272 LRMP at 48
273 Id
274 North Carolina Wildlife Resources Commission
2011)
27s LRMP at 50 51
276 DEIS at 3 50
Draft Black Bear Management Plan 2011 2021 at 39 (June 8
277 Letter from J Hefner FWS to D Robinson NCDOT (Apr 20 1998) DEIS Appendix AI
278 Memo from R Lucas FHWA (July 13 20 10) (Attachment 3)
W

The proposed project would significantly and detrimentally impact public lands that
function, and are designated in the Forest Service's LRMP, for the purpose of recreation and
wildlife protection, and are designated as state and regionally significant natural communities
FHWA staff has rightly asked, "how would this not be a 4f issue9" Based on the established
uses present in the Croatan National Forest and the designations of sections of the forest as
natural areas wildlife management areas, gameland, and black bear sanctuary, DOT must fully
evaluate the proposed project under 4(f)
CONCLUSION
We urge the Transportation Agencies to revise their analysis of alternatives and impacts
according to the recommendations set forth herein and to issue a supplemental Draft
Environmental Impact Statement for public review and comment
Sincerely,
J David Farren, Senior Attorney
Geoff Gisler, Staff Attorney
Chandra T Taylor, Senior Attorney
37