20010404_EHR 1225_20100726

STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF DURHAM GCT 00 EHR 1225
LARRY DALE MCKEEL, `'-
Petitioner, t? u
AND )
ROBERT MORRISON GETCHELL, )
Petitioner-Intervenor
V )
NORTH CAROLINA DEPARTMENT OF )
ENVIRONMENT AND NATURAL RESOURCES)
DIVISION OF WATER QUALITY, )
Respondent )
AND )
NORTH CAROLINA DEPARTMENT OF
)
TRANSPORTATION, )
Respondent-Intervenor )
RECOMMENDED DECISION
This contested case was heard by the Honorable James L. Conner, II, Administrative Law
Judge, on May 23, 24, 25 and June 4, 2001, in Raleigh, North Carolina. The parties filed
proposed recommended decisions on August 16, 2001. On September 25, 2001, Chief Judge
Mann entered an Order extending the time for filing this Recommended Decision to October 10,
2001, pursuant to 26 NCAC 03 .0126(d).
APPEARANCES
For Petitioner: _ Larry Dale McKeel, pro se, 3559 Hamstead Court, Durham, North
Carolina 27707
For Petitioner-Intervenor: Nicole Gooding-Ray, Melany Earnhardt, North State Legal
Services, P.O. Box 670, Hillsborough, North Carolina 27278
For Respondent: Jill B. Hickey, As Attorney General, Department of Justice,
Environmental Section, P.O. Box 629, Raleigh, North Carolina
27602-0629
For Respondent-Intervenor: Fred Lamar, Lisa C. Glover, Assistant Attorneys General,
Department of Justice, Transportation Section, 1505 Mail Service
Center, Raleigh, North Carolina 27699-1505
ISSUES
This matter involves issuance by the North Carolina Department of Environment and
,Natural Resources, Division of Water Quality (DWQ), of 401 Water Quality, Certification,
Number 3293 (the -"Certification"), to the North Carolina Department of Transportation
(NCDOT), for a 22 mile freeway in Wayne and Wilson Counties, North Carolina, on June 23,
2000.
The issues to be decided-are, as set out by the parties in the Pre-Trial Order:
1. Whether Petitioner and Petitioner-Intervenor can show that DWQ exceeded its authority
or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily and
capriciously, or failed to act as required by law or rule in determining that there was no
practical alternative to the proposed project?
2. Whether Petitioner and Petitioner-Intervenor can show that DWQ exceeded its authority
or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily and
capriciously, or failed to act as required by law or rule in determining that the project
minimized adverse impacts to wetlands or surface waters?
3. Whether Petitioner and Petitioner-Intervenor can show that DWQ exceeded its authority
or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily and
capriciously, or failed to act as required by law or rule in determining that there would be
no cumulative impacts that would cause a violation of downstream water quality
standards?
4. Whether Petitioner and Petitioner-Intervenor can show that DWQ exceeded its authority
or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily and
capriciously, or failed to act as required by law or rule in determining that there was no
alternative to construction of a new road in a Watershed Critical Area?
5. _ Whether Petitioner and Petitioner-Intervenor can show that DWQ violated the provisions
of the North Carolina Environmental Policy Act in issuing the Certification?
WITNESSES
Petitioner and Petitioner-Intervenor presented testimony from the following witnesses, in
order of appearance:
1. Robert Morrison Gilbert Getchell, Petitioner-Intervenor
2. Henry Franklin Vick, NCDOT employee (by subpoena)
- 2
3I Cynthia Dyson Sharer, NCDOT employee (by subpoena)
4. Cynthia Lynn Bell Karoly, DWQ employee (by subpoena)
5. John Edward Hennessy, DWQ employee (by subpoena)
6. Larry Dale McKeel, Petitioner
Respondent and Respondent-Intervenor presented testimony . from the following
witnesses, in order of appearance:
(Respondent-Intervenor witnesses)
1. Henry Franklin Vick, NCDOT employee, tendered as. an expert in the field of NEPA
documents and transportation-planning. (T V.II pp. 126-127) - - - - -
2. Joseph Thomas Peacock, Jr., RK&K Consulting Engineer, tendered as an expert in
transportation design and preparation of NEPA documents for transportation projects.
(T V.II pp. 173)
3. Cynthia Dyson Sharer, NCDOT employee, tendered as an expert in the field of
preparation of NEPA documents and transportation planning. (T VIII p. 15)
4. Michael Gerard Wood, NCDOT employee, tendered as an expert in wetlands
delineation and classification. (T VIII p. 83)
(Respondent witnesses)
1. Cynthia Lynn Bell Karoly, DWQ employee
2. John Edward Hennessy, DWQ employee
3. Kenneth Schuster, DWQ employee
4. John Robert Dorney, DWQ employee
5. Kerr T. Stevens, DWQ employee
EXHIBITS RECEIVED INTO EVIDENCE
Petitioner and Petitioner-Intervenor:
1 Final Environmental Impact Statement
2 Supplemental Draft Environmental Impact Statement
3 Draft Environmental Impact Statement
17 May 4, 1992 Memo from DENHR Division of Environmental Management
27 August 10, 1995 Memo from DEHNR Division of Environmental Management
28 July 7, 1995 Memo from DENHR Division of Forest Resources
29 August 9, 1995 Memorandum from NCWRC
30 February 3, 1993 Letter from US Army Corps of Engineers
31 March 13, 1995 Letter from US Army Corps of Engineers

. 32 July 13, 1995 Letter from EPA
34 August 11, 1995 Letter from US Department of Interior
43 Aerial Map of the Preferred Alternative
44 Aerial Map of the Preferred Alternative
45' September 26, 1997 Memo from DEHNR Division of Water Quality
47 October 3, 1997 Letter from EPA
50 Revised Record of Decision
51 April 20, 2000 Letter from the Division
52 June 5, 2000 Letter from NCDOT
56 July 1993 DOT Newsletter
61 Report "Comparison of the Preferred Alternative and Alternative 4X"
63 Setpember 7, 1993 Letter from NCDOT to RK&K -
64 NCDOT Response to Petitioner's Revised Discovery Request
65 June 9, 2000 Letter to Mr. Hennessy from Dale McKeel
68 Division Response to Petitioner-Intervenor's Discovery Request
69 Division Response to Petitioner's Discovery Request
70 NCDOT Response to Petitioner-Intervenor's Discovery Request
72A Goldsboro Thoroughfare Plan
75 Photographs of US 117
76C AASHTO Green Book on Single Point Interchanges
77 Final EIS for US 70 Project
82 March 6, 2000 letter from Dale McKeel to David King
83 Public Notice from the Army Corps
85 July 20, 1995 Letter from Mr. McKeel to Mr. Vick
86 August 9, 1995 Letter from Mr. Vick to Mr. McKeel
87 August 23, 1995 Letter from Mr. _McKeel to Mr. Vick
88 September 20, 1995 Letter from Mr. Vick to Mr. McKeel
Respondent and Respondent-Intervenor:
The following exhibits were offered and received into evidence for Respondent and
Respondent-Intervenor:
R1 Final Environmental Impact Statement
R1A FEIS Table S.I "Summary of Impacts: US 117 Bypass from US 13 to US 301
RIB_ FEIS Exhibit 2.1-1 "DEIS Preliminary Corridor Segments" _
RIC FEIS Exhibit 2.1-2 "DEIS Alternative Corridors"
RID FEIS Exhibit 2.1-3 "SDEIS Alternative Corridor Locations"
RI E FEIS Exhibit 2.1-4 "FEIS Alternative Corridor Locations"
R2 March 25, 1997 letter from Michael Bell (COE) to H. Franklin Vick (DOT)
R3 April 28, 1997 letter from Michael Smith (COE) to H. Franklin Vick (DOT)
R4 October 7, 1997 letter from Chrys Baggett (DOA) to Whit Webb (DOT)
R5 Record of Decision dated December 2, 1997, with attachments
R6 Revised Record of Decision dated April 28, 1998, with attachments
R7 Memorandum to John Dorney (DWQ) from R.B. Davis (DOT) dated May 1, 1998, with
attachments
4
R8 Memorandum to R.L. Hill (DOT) from William D. Gilmore (DOT) dated July 16, 1998
R9 Letter to William Gilmore (DOT) from John Dorney (DWQ) dated August 24, 1998
R10 Memorandum to Meeting Attendees from Dewayne Sykes, PE (DOT) dated November 9,
1998, with attachments
R11 Letter to Bill Gilmore from Mike Bell dated January 19, 1999
R12 . Individual Permit Application for US 117 dated April 28, 1999
R13 Memorandum dated October 22, 1999 to Tommy Stevens from Hennessy and Domey
R13A
R13B
R13C
R1-3D
R14
R15
R15A
R16
R17
R18
R19
R21
R22
R24
R27
R28
R29
R30
R31
R33_
R34
R35
R38
R40
R41
R42
R43
regarding McKeel s request for public heanng on 401 certification, attaching
McKeel letter dated Aug. 16, 1999
Gilmore letter to Domey dated Sept. 23, 1999
COE Public Notice dated May 20, 1999
-COE Revised Public Notice dated July 29, 1999 - - - - - - -
Additional Information for Individual Permit Application for US 117 dated March 24,
2000
Letter dated April 10, 2000 to David Franklin (USCOE) from William Gilmore (DOT)
enclosing "Comparison of Preferred Alternative and Alternative 4X" dated April 7, 2000,
with enlargement of
Figure 1. "Alternative Study"
Letter to Bill Gilmore (DOT) from John Domey (DWQ) dated April 20, 2000
Letter to John Domey (DWQ) from William Gilmore (DOT) dated June 5, 2000, with
attachments
Memorandum to Kerr T. Stevens (DWQ) from Kenneth Schuster (DWQ) dated June 25,
2000 enclosing Hearing-Officer's Report
401 Water Quality Certification dated June 23, 2000
Letter from William Cox (EPA) to Col. James DeLony (COE) dated July 12, 2000
Letter to Cindy Sharer (DOT) from J.T-. Peacock dated July 24, 2000
COE 404 Permit dated August 16, 2000
Petitioner's Responses to Respondent's Discovery Requests
Petitioner's Responses and Supplemental Responses to Respondent-Intervenor's
Discovery Requests
Petitioner-Intervenor's Responses to Respondent's Discovery Requests
Petitioner-Intervenor's Responses and Supplemental Responses to Respondent-
Intervenor's Discovery Requests
Memo to Mike Bell (COE) from Michael Wood (DOT) dated May 28, 1998
Memo to Meeting Attendees from Dewayne Sykes (DOT) dated August. 3, 1998
Memo to Meeting Attendees from Dewayne Sykes (DOT) dated September 23, 1998
Memo to Roy Shelton (FHWA) from Dewayne Sykes (DOT) dated October 8, 1998
"Relocation Report" for Preferred Alternative and Alternative 4X dated May 15, 2000
NCDOT "Project Environmental Consultation Form" for R-1030, segment A
Functional Design Map - Alternative 4X
Design Map - Preferred Alternative
Design Map exhibited at Public Hearing
5
STATUTES AND RULES IN ISSUE
The substantive statutes involved are N.C. Gen. Stat. §§143-282 , 143-211., et seq., and
143B-282(1)(u), the Water Quality Certification Rules'at 15A NCAC 214.0501 et seq., the Water
Quality Rules at 15A NCAC 02B .0101 et seq., the North Carolina Environmental Policy Act at
N.C. Gen. Stat. 113A-3, et seq., the North Carolina Environmental Policy Act Rules at 1 NCAC '
25.0 et seq., the Federal Water Pollution Control Act or Clean Water Act, 33 U.S.C. 1311 et
seq., and related statutes and rules.
MOTIONS FOR SUMMARY JUDGMENT
An Amended Scheduling Order was entered in the instant case on March 8, 2001. On
April 19, 2001 Petitioner and Petitioner-Intervenor filed a Joint Motion for Summary Disposition
requesting summary judgment on all issues. Respondents filed a Motion for Partial Summary
Judgment on April 19, 2001 requesting that summary judgment be granted in their favor on
whether the Division of Water Quality complied with the provisions of the North Carolina
Environmental Policy Act (`NCEPA"). Respondent-Intervenor filed a Motion for Partial
Summary Judgment on April 19, 2001 requesting that summary judgment be granted in its favor
on whether the NCDOT complied with provisions of NCEPA or the National Environmental
Policy Act (NEPA).
After a hearing on dispositive motions held on April 24, 2001, the court denied all the
motions for summary judgment of Petitioner and Petitioner-Intervenor in an Order filed on April
26, 2001. In its April 26, 2001 Order, the court requested further briefing from the parties
concerning the applicability of the North Carolina Environmental Policy Act ("NCEPA,"
N.C.G.S. §§ 113A-1-13) to DWQ's issuance of a 401 Certification for NCDOT projects. On
May 16, 2001, after consideration of the briefs concerning the applicability of NCEPA to DWQ
under the circumstances of this case, the court found that under NCEPA, the environmental
documents prepared by NCDOT and DWQ's reliance on those environmental documents is
reviewable in conjunction with the review of DWQ's 401 Certification action.
Pursuant to N.C.Gen Stat. 150B-34 and -36, these rulings on the motions for summary
judgment are parts of this recommended decision. All such rulings are hereby incorporated
herein.
PROCEDURAL BACKGROUND -
1. Petitioner timely filed a Petition for a Contested Case on August 21, 2000
contesting the issuance of the Certification by the Division.
2. Respondent-Intervenor filed a Motion to Intervene as a Party on September 28,
2000. The undersigned issued an Order dated October 10, 2000 denying Respondent-
Intervenor's Motion.
2000.
3. Petitioner-Intervenor filed a Motion to Intervene as a Party on November 27,
6
4. Respondent-Intervenor filed a Motion to Reconsider on December 12, 2000.
5. The undersigned issued an Order dated December 28, 2000, allowing the
ixtervention of both Petitioner-Intervenor and Respondent-Intervenor.
FINDINGS OF FACT
Parties.
1. _ Petitioner Larry Dale McKeel grew up in the Little .River- Valley- in close proximity to .
the proposed highway project. (Tr. 5/24/01, p.59). His parents still live in the house where he
grew up. (Tr. 5/24/01, p.58). Mr. McKeel participated in public meetings about the proposed
highway project and has worked on the project since the .late 1980s. (Tr. 5/24/01, p.60-61). He
has written approximately seventy-five letters to various state and federal agencies regarding the
project. (Tr. 5/24/01, p.62).
2. Petitioner-Intervenor Robert Getchell lives at 1008 Guilford Street in Goldsboro,
North Carolina. (Tr. 5/23/01 p. 47). His house is in the path of the proposed highway and if the
project is built, he will lose his house and property. (Tr. 5/23/01 p.48-49). If the proposed
highway was built, Mr. Getchell would have to relocate. (Tr. 5/23/01 p. 49) Mr. Getchell
testified that he knew of no other sites available along the river where he could relocate. (Tr.
5/23/01 p. 49). Mr. Getchell operates a business, Little River Tours, which takes people on
canoe trips down the Little River. (Tr. 5/23/01 p.50). If the proposed highway project is built, it
will destroy his access to the Little River from his home. (Tr. 5/23/01 p. 50-51). Mr. Getchell
testified that he was concerned about the quality of the water if the proposed highway was built.
(Tr. 5/23/01 p. 53).
3. The Respondent is the North Carolina Department of the Environment and Natural
Resources, Division of Water Quality, (the "Division"), the state agency authorized to issue 401
Water Quality Certifications and responsible for the review of the 401 Certification application
and issuance of the 401 Certification that is the subject of this contested case.
4. The Respondent-Intervenor is the North Carolina Department of Transportation
("NCDOT"), the applicant for the 401 Water Quality Certification that is the subject of this
contested case. T
BackLyround.
5. The agency action challenged by Petitioner and Petitioner-Intervenor is the issuance
by the DWQ of a water quality certification to NCDOT pursuant to section 401 of the federal
Clean Water Act, 33 U.S.C. § 1341. The 401 water quality certification certifies to the United
States Army Corps of Engineers ("the Corps") that NCDOT's placement of fill material in 37.48
acres of jurisdictional wetlands and 41 11 linear feet of streams in Wayne and Wilson Counties
7
for the purpose of constructing improvements to US 117 from Wilson to Goldsboro (project R-
1030) will not violate State water quality law.
6. Over fifteen years ago,,NCDOT scheduled a project to make improvements along the
US 117 Corridor'between Wilson and Goldsboro, North Carolina to accommodate traffic growth
("Project R-1030"). (Tr. 5/24/01, p. 127).
7. NCDOT hired a consulting firm, Tams, Inc., to prepare a Draft Environmental Impact
Statement ("DEIS") for Project R-1030 (Tr. 5/24/01, p.127). The DEIS was issued on March 24,
1992. (Petitioner's Exhibit 3.)
8. The Intermodal Surface Transportation Efficiency Act (ISTEA) was passed by the
United States Congress in 1991: ISTEA appropriated money for an interstate connector between
I-40 and I-95.
9. A Supplemental Draft Environmental Impact Statement ("SDEIS") for Project R-
1030 was issued on April 25, 1995. (Petitioner's Exhibit 2).
10. A Final Environmental Impact Statement ("FEIS") for Project R-1030 was issued on
July 31, 1997. (Petitioner's Exhibit l). .
. 11. A Record of Decision was issued on December 2, 1997. A Revised Record of
Decision for Project R-1030 was issued on April 28, 1999. (Petitioner's Exhibit 50). -
12. NCDOT applied for a 401 Water Quality Certification from the Division in 1999. Its
application was considered complete on June 5, 2000. (Respondent's Exhibit 18).
13. On June 23, 2000, the Division issued a 401 Water Quality Certification No. 3293
(the. "Certification,"), to NCDOT for Project R-1030. (Petitioner's Exhibit 53).
Contested Issue #1- Practical Alternatives to the Proposed Project
All findings of fact herein apply to all contested issues, as appropriate. Headings
are aids to understanding only.
14. The original purpose of Project R-1030 was to evaluate the safety and traffic handling
capacity of existing U.S. 117. (Tr. 5/23/01 p. 75).
15. The DEIS created a project "study area" to allow a thorough analysis of alternatives.
Jr. 5/24/01, p.129). From this study area, the DEIS examined a number of different alternatives
and selected three for detailed study. These three alternatives were:
a. Alternative 1, which consisted of widening the existing U.S. Highway 17
with a bypass around Pikeville and Fremont (Petitioner's Exhibit 3; Tr. 5/23/01 p. 72-3);
8
b. Alternative 2, which consisted of a freeway at a new location west of
Goldsboro (Petitioner's Exhibit 3; Tr. 5/23/01 p. 73); and
c. Alternative 4, which consisted of widening the. existing U.S. 117 at the
southern end and then curving west as an expressway and then becoming a freeway (Petitioner's
Exhibit 3; Tr. 5/23/01 p. 73).
16. In order to determine whether the Alternatives met the project purpose, an analysis of
traffic capacity and safety was performed. (Petitioner's Exhibit 3).
a. Traffic Capacity was examined using a "Level of Service" ("LOS") analysis.
This analysis looks at the vehicle or traffic volumes based on the number of lanes, and as
volumes increase and the ability of the facility to handle the traffic volume deteriorates, different
Levels of Service are assigned. (Tr. 5/23/01 p. 76). The levels of service are given an `A'
through `F' designation, with A being the very highest, completely free-flowing traffic and D, E
and F having breakdowns in the travel lane. (Tr. 5/23/01 p. 76) Although NCDOT likes to
design a highway so that a level of service of B or C is maintained in the design year (usually 20
to 25 years in the future), it has built facilities at level of service D. (Tr. 5/23/01 p. 76-7)
b. The DEIS indicated that if Alternative 1 was built, it would have operated at
a LOS C (Tr. 5/23/01 p. 78); if Alternative 2 was built, it would have operated at an acceptable
level of service, except certain segments which would operate at LOS `D' (Tr. 5/23/01 p. 78-9);
and if Alternative 4 was built, it would operate at LOS A-C (Tr. 5/23/01 p. 82-83).
C. The DEIS indicated that if Alternative 2 were built, the existing US 117
would operate at various levels of service from A to F. (Tr. 5/23/01 p. 81). If Alternative 4 were
built, the existing US 117 would operate at LOS £. (Tr. 5/23/01 p. 84).
d. The DEIS also examined each alternative to determine the accident rate. (Tr.
5/23/01 p. 84). The DEIS indicated that for Alternative 1, there would be 3 fatal accidents and
262 total accidents (Tr. 5/23/01 p. 84); for Alternative 2, one fatal and 76 total; and for
Alternative 4, 1 fatal and 85 total (Tr. 5/23/01 p. 84). The DEIS did not include information on
how the alternatives would impact the safety of the existing US 117, except for Alternative 1.
(Tr. 5/23/01 p. 85).
17. State and federal agencies provided comments on the DEIS, as follows:
a. The U.S. Environmental Protection Agency ("EPA") stated a preference for
Alternative 1. (Tr. 5/23/01 p. 85-6).
b. The North Carolina Department of the Environment and Natural Resources'
Division of Forest Resources stated a preference for Alternative 1 (Tr. 5/23/01 p. 86).
C. The North Carolina Wildlife Resources Commission stated a preference for
Alternative 1. (Tr. 5/23/01 p. 86).
- 9
d. The North Carolina Department of the Environment and Natural Resources'
Division of Environmental Management commented as follows:
DEM recommends that Alternative 1 be the preferred route because it would not
impact the Little River drinking water source. It has. the lowest impact on
acreages, both natural and prime farmland, wetlands, stream crossings;
floodplains relocations and total cost.
(Tr. 5/23/01 p. 88). The Division of Environmental Management was the predecessor to the
Division of Water Quality. (Tr. 6/04/01 p. 14)
e. The United States Army Corps of Engineers ("Army Corps") also provided
comments on the DEIS as follows:
Based on our review of the existing environmental documentation, alternative 1 is
clearly the least damaging build alternative considered that would satisfy the
project need and purpose as described in the existing environmental
documentation.
(Tr. 5/23/01 p. 90).
18. The DEIS indicated that Alternative 1 would impact thirty-eight acres of wetlands,
involve seven stream crossings, cause forty-nine total relocations and cost 46 million dollars.
The DEIS indicated that Alternative 2 would impact ninety-three acres of wetlands, cross
eighteen streams, cause fifty-four relocations and cost 75 million dollars. The DEIS indicated
that Alternative 4 would impact sixty-five acres of wetlands, cross eleven streams, cause fifty
relocations and cost 69 million dollars. (Petitioner's Exhibit 3).
19. NCDOT chose Alternative 2 as its "Preferred Alternative" on May 7, 1993, stating:
After careful review of the impacts on the human and natural environments, and
after weighing comments on the project by the public and government agencies,
the NCDOT identified Alternative 2 as the preferred route.... Alternative 2 was
chosen because it provides the best design and can best handle future traffic needs
of the area. This alternative has the support of the majority of the public and
elected officials.
(Petitioner's Exhibit 2).
20. A NCDOT newsletter dated July 1993 indicated that if Alternative 1 was upgraded to
a freeway it would cause 390 relocations and if Alternative 4 was upgraded to a freeway it would
cause 158 relocations and traffic congestion and operation problems. (Tr. 5/23/01 p. 132-3,
Exhibit 56).
21. After the DEIS was issued,-NCDOT made a decision that ISTEA required the Project
R-1030 to be constricted as a freeway. Jr. 5/23/01 p. 93; Petitioner's Exhibit No. 2). A
- 10
freeway is a full controlled access facility - the only way one can get on the facility is through
interchanges. (Tr. 5/23/01 p.117). The text of ISTEA does not require Project MOO to be
constructed as a freeway. (Petitioner's Exhibit 50).
22. At the request of the US Army Corps, a: SDEIS was prepared in order to evaluate
different freeway alignments. (Tr. 5/23/01 p. 113). RK&K consultants were hired to prepare the
SDEIS. (Tr. 5/23/01 p. 126). _
23. The purpose of the project changed in the SDEIS to include that the project, function
as an interstate connector. (Tr. 5/23/01 p. 134) . The freeway alternatives were not evaluated to
determine whether they would meet this project purpose. (Tr. 5/23/01 p. 134, Petitioner's
Exhibit 2 and 3).
24. The consultants were asked to justify the selection of the preferred alternative.
(Exhibit 63, Tr. 5/23/01 p. 129). The consultants were not asked to determine -which location
within the study area would be the best for a freeway. (Tr. 5/23/01 p. 129). Instead NCDOT
outlined several alternatives for the consultants. (Tr. 5/24/01 p.177). These alternatives
included the Preferred Alternative, Alternative 1A, which was Alternative 1 from the DEIS
converted to a freeway, Alternative 4A, which was Alternative 4 from the DEIS converted to a,
freeway and a Western Alternative. (Tr. 5/23/01 p. 129-130).
25. The western alternative was eliminated in the SDEIS because it crossed the Little
River twice, it was difficult to create an interchange with 70 and it impacted a larger quantity of
wetlands than the other alternatives. (Tr. 5/24/01 p.180). The western alternative was not
studied in detail in any of the environmental impact statements (Tr. 5/24/01 p.241; Petitioner's
Exhibits 1, 2 and 3).
26. The SDEIS indicated that Alternative IA would impact forty-nine acres of wetlands,
the Preferred Alternative would impact sixty-two acres of wetlands and Alternative 4A would
impact forty-eight acres of wetlands. (Tr. 5/23/01 p. 138).
27. The SDEIS and FEIS indicate that the Preferred Alternative was the only alternative
studied that ran through the Critical Watershed Area. (Tr. 5/23/01 p. 138-9)
28. The FEIS was completed and signed by NCDOT on July 23, 1997 and by FHWA on.
July 31, _1997, and identified alternatives 1 A, 4A and the Preferred Alternative as feasible
alternatives that would meet the purpose and need of the project and function as freeway
alternatives.
29. The FEIS examined the same alternatives that were examined in the SDEIS. Jr.
5/23/01 p. 144). The FEIS indicates that the Preferred Alternative would affect sixty-two acres
of wetlands prior to wetlands delineation and forty-two after delineation; Alternative 1A would
affect forty-nine acres of wetlands (Tr. 5/23/01 p. 151) and Alternative 4A would affect 48 acres
prior to wetlands delineation and 37 with the preliminary design (Tr. 5/23/01 p. 152).
30.-Although the Preferred Alternative indicated greater impacts to wetlands than the
other two feasible alternatives, Alternatives IA and 4A were determined not to be reasonable
because of their disproportionate impacts to residences (193 for IA, 68 for 4A, and 46 for the
Preferred Alternative), businesses ,(72 for IA, 39 for 4A, and 7 for the Preferred Alternative),
churches (5 for IA, 1 for 4A, and 0 for the Preferred Alternative) and, in addition, Alternatives
IA and 4A impacted a public park (while the Preferred Alternative did not impact a public park).
31 _The-traffic analysis was updated in the, FEIS.,-,,,This. analysis indicated that if the
Preferred Alternative was built, it would operate at LOS A-C (Petitioner's Exhibit 1, p. 2-21); if
Alternative lA were built, it would operate at "satisfactory levels of service except for two
ramps and two weaving sections (Petitioner's Exhibit 1, p. 2-23); and if Alternative 4A_ were
----- -------
built, it would operate at "satisfactory levels of service (Petitioner's Exhibit 1, p. 2-24).
32. The FEIS provided an analysis of safety for the Preferred Alternative and a non-build
alternative, but did not provide an analysis of safety for Alternatives IA or 4A. (Petitioner's
Exhibit 1, p. 1-10 -1-13).
33. Federal and state agencies provided comments on the FEIS, including these:
a. Cynthia Karoly wrote a memorandum
commenting on the FEIS. (Tr. 5/24/01, p
the Division concurred with NCDOT's
Exhibit 45).
for the Division of Water Quality
10). She stated that "[a]t no time has
Preferred Alternative." (Petitioner's
b. The EPA commented:
Impacting a high quality resource with such a project is ill-advised, considering
the river's present use, quality and fisheries habitat, when alternatives are
available. Regardless of how well pollutants from construction activity are
controlled, long term degradation is likely to result because of the relatively small
watershed and exceptional quality compared to the Neuse River. If in the future
the Little River cannot meet water supply and HQW criteria, this would be
inconsistent with the goals and objectives of the Federal Clean Water Act.
(Petitioner's Exhibit 47). The EPA went on to point out a number of problems with the FEIS:
• The Preferred Alternative presents the greatest impacts to the Little River
• The Preferred Alternative is too close to the surface water
• The FEIS does not include an assessment of the secondary impacts of Economic
development
• The FEIS is not specific enough about water quality protection
• The discussion of noise mitigation is confusing
• The compensatory. mitigation of wetlands is not properly addressed
12
(Petitioner's Exhibit 47).
34. The FEIS concluded that the Preferred Alternative from the SDEIS would remain the
Preferred Alternative. (Petitioner's Exhibit 1).
35. The Record of Decision (ROD) approving the selection of NCDOT's Preferred
Alternative by FHWA was signed on November 11, 1997.
36. A revised Record of Decision (Revised ROD) was re-issued by FHWA on April 20,
1998, for the purpose of including comments from the public, and to include comments
specifically from the Petitioner, his parents and the Neuse River Foundation.
37. Both the original and the Revised Record of Decision concluded that the Preferred
Alternative would remain the Recommended Alternative. (Petitioner's Exhibit 50). .
38. The basis for FHWA's approval of NCDOT's Preferred Alternative in the ROD
includes (i) fewer total relocations for the Preferred Alternative (270 for 1A, 108 for 4A, and 53
for the Preferred Alternative); (ii) the Preferred Alternative provides the best connection with
existing US 13 - US 117 in Goldsboro; (iii) the Preferred Alternative does not impact a "Section
4(f)" park property; (iv) the Preferred Alternative does not require upgrading and widening the
existing US 13 - US 70 Bypass between US 117 Business and NC 581; and, (v) at the northern
terminus of the project, the Preferred Alternative provides a better freeway to freeway
connection and best meets the intent of ISTEA legislation which designates US 117 as an
interstate connector route.
39. The Record of Decision (Petitioner's Exhibit 50) included comments from many
different agencies on the FEIS and the Project itself. The Federal Highway Administration
commented that
Although Section 1106 of the Intermodal Surface Transportation Efficiency Act
of 1991 included special funding for an "Interstate link" between I-95 and I-40,
the law did not require that this link be built entirely to freeway standards that
would allow the highway to be incorporated into the Interstate System.
40. Mr. Henry Franklin Vick has a B.S. in civil engineering from North Carolina State
University. (Tr. 5/24/01 p. 120) He is a Professional Engineer. (Tr. 5/24/01 p. 120) Mr. Vick is
currently employed as the unit head for the feasibility studies unit of NCDOT. He has been
employed in various capacities at NCDOT including as a Project Engineer, Assistant Manager
and Manager of the Planning and Environmental Branch. (Tr. 5/24/01 p. 120)
41. Mr. Vick was involved in hiring consultants to prepare a DEIS for Project R-1030
Jr. 5/23/01 p. 69) and in the decision to choose Alternative 2 as the Preferred Alternative (Tr.
5/23/01 p. 85). Mr. Vick reviewed documents received by the state clearinghouse in response to
the DEIS (Tr. 5/23/01 p. 85); and provided oversight of preparation of the Supplemental Draft
Environmental Impact Statement (Tr. 5/23/01 p. 94) and the Final Environmental Impact
Statement Jr. 5/23/01 p. 95).
- 13
42. Mr. Vick testified that without construction of the other portions of the interstate link,
the project would not function as a link. (Tr. 5/24/01 p.148).
43. Ms. Cynthia Sharer, an employee of NCDOT, was -involved in the preparation of
Supplemental Draft Environmental Impact Statement for Project R-1030 and the preparation of
the Final Environmental Impact Statement JR 5/23/01 p. 126).
44. Cynthia Sharer testified that each of the freeway alternatives would meet the purpose
and need for the project to function as an interstate connector (Tr. 5/13/01 p. 134).
45. Cynthia Bell Karoly, an employee of the Division, reviewed the final environmental
impact statement for Project R-1-030 and wrote a memorandum for the Division of Water Quality
commenting on the FEIS. (Tr. 5/24/01, p. 10).
46. Cynthia Karoly testified that she did not know whether NCDOT took into account the
costs associated with wetland and stream mitigation in its cost estimates for construction of
different alternatives. (Tr. 6/4/01 p. 57-8)
47. During the NEPA environmental document preparation process, DWQ initially
expressed preference for Alternative 4A, rather than the Preferred Alternative, because of the
impact on the critical watershed and greater impacts to wetlands presented by the Preferred
Alternative. After NCDOT committed to implementing site-specific wetland avoidance and
minimization measures and agreed to comply with the newly issued Neuse Buffer Rules (15A
N.C.A.C. 02B.0233), DWQ issued a letter dated August 24, 1998 to NCDOT, in which it
concurred with NCDOT on the Preferred Alternative, in light of the range of impacts of the other
alternatives on the human and natural environment, including the larger number of relocations
required by the other alternatives.
48. On or about April 28, 1999, NCDOT submitted an application for a 404 permit to the
Corps and a 401 Certification to DWQ pursuant to 15A N.C.A.C. 2H.0501 et seq. for the
construction of R-1030 addressing various avoidance and minimization measures including the
identification of mitigation for wetland impacts.
49. NCDOT presented only one route, with no alternatives, to the Division in its
application, for the 401 Water Quality Certification. (Tr. 5/24/01, p.17). _
50. On or about August 16, 1999, Petitioner requested DWQ hold a public hearing
concerning NCDOT's application for a 401 Certification for R-1030. DWQ held the public
hearing on March 14, 2000 pursuant to 15A N.C.A.C. 2H.0503 and 2H.0504.
. 51. At the request of the Army Corps of Engineers, NCDOT prepared a report comparing
Alternative 4X, originally discarded in 1991, with the Preferred Alternative (Tr. 5/23/01 p. 160).
RK & K, who had prepared the Final Environmental Impact Statement, prepared this report. (TR
5/23/01 p. 160).
14
52. In a Jetter dated April 20, 2000, DWQ made an additional information request of
NCDOT based upon comments made at the public hearing. DWQ requested that NCDOT (i)
explain why it had eliminated "Alternative 4X" during the preliminary segment alternative
analysis; (ii) discuss the "Missing Link" portion of planned improvements to US 117 south of
Goldsboro; and (iii) discuss the location of the proposed project terminus-.
53. DWQ's request for information about Alternative 4X was answered by a report from
RK&K entitled "Comparison of Preferred Alternative and Alternative 4X" and dated April 7,
2000. Although Alternative 4X would avoid the critical watershed area, it would require 93
more relocations than the Preferred Alternative, would impact 18.8 more acres of wetlands, and
would cost $40 million more than the Preferred Alternative. Based on this information, NCDOT
reaffirmed its previous position-that-Alternative 4X was not reasonable and feasible. -
54. Tommy Peacock, a professional engineer with RK&K, worked on Project R-1030
while he was employed at the NCDOT. (Tr. 5/24/01 p. 173; Tr. 5/25/01 p. 127). He also
worked on.Project R-1030 at RK&K when they were awarded the contract to prepare the SDEIS
and FEIS. (Tr. 5/24/01 p. 173). Mr. Peacock indicated that RK&K spent approximately 7 1/2
years developing the design for the Preferred Alternative and approximately 3 weeks developing
the design for Alternative 4X (Tr. 5/25/01 p. 130-132).
55. In comparing Alternative 4X with the Preferred Alternative, a functional design was
used for Alternative 4X and a preliminary design was used for the Preferred Alternative (TR
5/23/01 p. 161). A preliminary design is based on better mapping and is done with control aerial
photography rather than aerial photography that has slight deviations in the scale. (Tr. 5/23/01 p.
151).
56. Efforts to minimize environmental, social and economic costs were greater for the
Preferred Alternative than Alternative 4X (Tr. 5/23/01 p. 161-2).
57. In determining impacts on wetlands, a wetland delineation was done for the preferred
alternative, but a determination, which is not as detailed a field study as a delineation, was done
for Alternative 4X (Tr. 5/23/01, p. 177). Wetland delineation would allow the agency to adjust a
highway to avoid impacts to wetlands. (Tr. 5/23/01 p. 177).
58. NCDOT later submitted the report on the Preferred Alternative and Alternative 4X to
the Division. The Division did not examine any other alternatives during its review of NCDOT's
application. (Tr. 5/24/01, p.18). The Division did not create its own alternatives during its
review ofNCDOT's application. (Tr. 5/24/01, p.17-18).
Contested Issue 42 - Minimizing Adverse Impacts to Wetlands
Quality
59. Mr. John Hennessy is the NCDOT Permit Coordinator for the Division of Water
60. Mr. Hennessy testified that every wetland is a distinct system in and of itself and
provides distinct functions that have various effects upon water quality. (Tr. 5/24/01, p.21).
- 15
61. The Division did not determine 'the existing uses of the specific wetlands impacted by
Project R-1030 (Tr. 5/24/0-1,p. 18-28; Tr. 6/04/01 p. 118).
62. Prior to submitting an application for a Section 401 Certification and Section 404
Permit, NCDOT staff walked the entire length*of the corridor of the Preferred Alternative for R-
1030 in the wetland and stream impact areas for the purpose of identifying significant water
resources.
63. A field inspection and meeting was held on June 4 and 5 of 1998 between a NCDOT
wetland specialist and various resource and regulatory agencies including personnel from DWQ
and the Corps for the purpose of obtaining consensus on the high quality resources that should be
avoided or upon which the impacts should be minimized and on special consideration for
-avoidance and minimization efforts near the crossing of Black Swamp, Great Swamp, Nahunta
Swamp and Smith Mill Run.
64. Pursuant to DWQ and Corps requests, NCDOT agreed to numerous avoidance and
minimization efforts, including: R-1030 was shifted away from the Little River such that a 25
meter buffer will be maintained between the construction footprint and the top of the slope which
falls toward the Little River; a high quality riverine wetland at station 268+00 will be bridged at
a cost of 51.8 million; the riverine wetlands at Black Swamp, Great Swamp, and Nahunta
Swamp will be bridged; Salem Church Road, a secondary road being relocated as part of the
project, was shifted to cross the wetlands at Smith Mill Run at a narrower spot; and R-1030 was
shifted east to avoid an uncommon, ephemeral wetland type at stations 18+040 to 18+200, which
wetland was eventually purchased by NCDOT.
65. Wetlands destroyed by Project R-1030 are to be replaced with a mitigation site
located at Wiggins Mill near Wilson, North Carolina. (Tr. 5/24/01, p.25). The Wiggins Mill site
is up to 18 miles away from some of the wetlands that are being replaced. (Tr: 5/24/01, p.25).
Contested Issue #3 - Cumulative Impacts
66. The SDEIS did not examine cumulative impacts associated with Project R-1030. (Tr.
5/23/01 p. 135).
67. The FEIS did not examine cumulative impacts (Tr. 5/23/Ol.p. 154, Exhibit 50).
68. The section in-the'--FE-IS dealing with secondary impacts was boilerplate language that
was used in another FEIS for the U.S. Highway 1 project. This language had no specific
application to Project R-1030 and evinced no actual consideration of cumulative or secondary
impacts associated with Project R-1030. (Tr. 5/24/01 p.158, Exhibits 1 and 59).
69. None of the Environmental Impact Statements prepared by NCDOT for Project R-
1030 examined the cumulative impacts of the U.S. 70 Bypass Project planned for Goldsboro,
North Carolina. (Tr. 5/23/01 p. 136, 154-155). Although there was an FEIS for the Highway 70
Bypass project, the Division of Water Quality did not examine this document Jr. 5/24/01, p.29).
- 16
The Highway 70 project was in the "immediate area"of R-1030, and the Division was aware of
it. (Tr. 5/24/01 p. 29).
70. None of the Environmental Impact Statements prepared by NCDOT for Project R- .
1030 examined the cumulative impacts of the U.S. 264 Bypass project planned for Wilson, North ;
Carolina. Jr. 5/23/01 p. 136,.154-155). The Division did not consider cumulative impacts from
the U.S. 264 Bypass and did not examine the FEIS for that project. (Tr. 5/24/01, p.30).
71. None of the Environmental Impact Statements prepared byrNCDOT for Project R-
1030 examined the cumulative impacts of the Global Transpark. (Tr. 5/23/01 p. 136, 154-155).
The Division did not consider cumulative impacts from the Global Transpark. (Tr. 5/24/01,
p.31). NCDOT-recognized that the-project would improve access to the Global- Transpark and -
could encourage development at the Transpark. (P. Exhibit 52, p. 4).
72. None of the Environmental Impact Statements prepared by NCDOT for Project R-
1030 examined the cumulative impacts of construction of the next part of the interstate link. (Tr.
5/23/01 p. 136, 154-155). The Division did not consider cumulative impacts from the other
segments of the interstate connector (Tr. 5/24/01, p.34). The Division of Water Quality made a
determination that project R-1030 had independent utility and was a "complete project" and
therefore, it did not examine the entire interstate connector when reviewing the 401 Water
Quality Certification: `(Tr. 5/24/01, p.34-36). The Division made this determination based on the
fact that Project R-1030 fulfilled a purpose of increasing traffic capacity. (Tr. 6/04/01, p. 113).
Mr. Hennessy testified that he had never made a decision that any project was not a "complete
project" after NCDOT had submitted its application for a water quality certification. (Tr.
5/24/01, p.36).
73. None of the Environmental Impact Statements prepared by NCDOT for Project R-
1030 examined the cumulative impacts of runoff from golf courses or runoff from agricultural
activities in the area. (Tr. 5/23/01 p. 136, 154-155).
74. There is no written documentation of any discussions or investigation into cumulative
impacts of Project R-1030 by the Division. (Tr. 5/24/01, p.36).
75. The Division of Water Quality requested more information on cumulative and
secondary impacts from NCDOT in a letter dated April 20, 2000 (Tr. 5/24/01, p.37-38, Exhibit
51). NCDOT responded with a letter dated June 5, 2000 (Tr. 5/24/01, p.38-39, Exhibit 52). This
response did not include any reference to the U.S. 70 Bypass, the U.S. 264 Bypass, runoff , or
impacts to wetlands or surface waters (Tr. 5/24/01, p.39-40). The response was primarily a
justification of the failure to do cumulative impacts analysis, and a general recitation of what
might be done in a cumulative impacts analysis. (Exhibit 52).
Contested Issue 44 - Critical Watershed Area
76. The DEIS did not mention the Little River Critical Watershed Area Jr. 5/24/01
p.161, Petitioner's Exhibit 3). However, the SDEIS did identify the critical watershed area.
- 17
77. Cynthia Karoly testified that NCDOT has complied with the Division's requests
regarding the critical watershed area because NCDOT had contacted the City of Goldsboro and
the City of Goldsboro did not express a concern with NCDOT's preferred alternative. - (Tr.
6/04/01 p. 37).
78. In addition, however, final design plans for R-1030 incorporated measures to
minimize impact to the critical- watershed including the construction of hazardous spill catch
basins, vegetated swales" to divert storm. water runoff 4through the project corridor, and
elimination of weep holes in bridges that cross creeks.
79: As discussed above, there were several alternatives which the Division did not
examine which would have avoided the Critical Watershed Area, including Alternatives 1, 1A, 4,
4A and 4X. The Division did not make its own analysis of these alternatives, but relied on
NCDOT's determination that these alternatives were not practicable.
Contested Issue 95 - NCEPA Violations
80. The Division did not issue an Environmental Assessment, Finding of No Significant
Impact or Environmental Impact Statement for Project R-1030. The Division did not publish a
Record of Decision for Project R-1030.
81. None of the documents produced by the Division were submitted to the State
Clearinghouse for circulation to state and federal agencies.
82. None of the environmental documentation prepared by either NCDOT or the Division
examined each alternative to determine whether it would satisfy the project purpose of providing
an interstate link.
83. A public hearing was held by the Division. Ken Schuster was the Public Hearing
Officer for this hearing. (Tr. 6/04/01 p. 125-6). He issued his hearing officer's report on June
25, 2000. (Tr. 6/04/01 p. 128). This was two days after the Water Quality Certification was
issued, and therefore, the decision to issue the Certification was made without the benefit of this
report, and therefore, the public's comments.
84. There is no written documentation that the Division of Water Quality ever considered
cumulative impacts relating to Project R-1030. (Tr. 5/24/01, p. 36).
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the undersigned makes the following
Conclusions of Law regarding the Contested Issues:
18
1. The Office of Administrative Hearings has jurisdiction to hear this case pursuant
to G.S. 150B-23.
2. All parties are properly before the Office of Administrative Hearings and the
Office of Administrative Hearings has jurisdiction over the parties and the Contested Issues.
a.. Petitioner is an aggrieved person who is directly and adversely affected by
the construction and operation of Project R-1030 and the Division's issuance of the Certification
and has standing to bring a petition for a contested case hearing.
b. Petitioner-Intervenor is an aggrieved person who is directly and adversely
affected by-the construction and operation of Project R-1030 and the. Division's issuance of the
Certification and has standing to bring a petition for a contested case hearing:
3. All parties have been correctly designated, and there is no question as to
misjoinder or nonjoinder of parties.
4. Petitioner and Petitioner-Intervenor bear the burden of proof on the Contested
Issues.
5. Sections 143B-282(1)(u) and 143-215.3(c) of the North Carolina General Statutes
authorize the Environmental Management Commission to issue 401 water quality certifications
pursuant to the federal Clean Water Act, 33 U.S.C. § 1341. The Environmental Management
Commission, through the adoption of rules codified at 15A N.C.A.C. 2H .0500 et seq., has
conferred the power to issue 401 water quality certifications upon the Director of the Division of
Water Quality.
Contested Issue No. 1- Practical Alternatives to the Proposed Proiect
6. 15A NCAC 2H .0506 allows the Division of Water Quality to issue a 401 Water
Quality Certification for a project affecting Class WL wetlands or surface waters if the project
has no practical alternative or impacts less than three acres of Class WL wetlands. 15A NCAC
02H .0506(f) states that
_ [a]lack of practical alternatives may be shown by demonstrating that, considering
the potential for a reduction in size, configuration or density of the proposed
activity and all alternative designs the basic project purpose cannot be practically
accomplished in a manner which would avoid or result in less adverse impact to
surface waters or wetlands.
7. There are a number of troubling aspects of the Division's consideration of
alternatives. First, the Division did not consider the potential for a reduction in size,
configuration or density when making its determination that there was a lack of practical
alternatives to the project. Second, the Division did not make its own determination of whether
the Project R-1030 needed to be in a freeway configuration in order to meet the project purposes
19
as outlined in the FEIS. This determination was made solely by NCDOT and was not mandated
by any state or federal laws. The poor justification of the need for a freeway configuration is the
most troubling of these shortcomings. Third, Alternative 4X may have resulted in fewer impacts
to wetlands. The study prepared by NCDOT was flawed because the Comparison report did not
compensate for the differences in design in the Preferred Alternative and Alternative 4X,
including amount of time spent on the design, use of wetland delineation versus determination
and use of a functional design versus a preliminary design.'- Therefore, the Division used a
flawed, analysis to conclude that Alternative 4X resulted in fewer impacts to wetlands than the
Preferred Alternative. Finally, Alternatives 1, IA and 4Awould have resulted in fewer impacts
to wetlands than the alternative chosen by NCDOT. Alternative 4 may have resulted in fewer
impacts to wetlands. Each of these alternatives met the original project purpose of increasing
_ traffic-capacity and safety on Highway 117 The Alternatives were never examined to determine
whether they met the project purpose of functioning as an Interstate link. The Division did not
consider these alternatives when making its determination that there was a lack of practical
alternatives to the project.
8. Since the Division relied on alternatives presented by NCDOT and did not come
up with its own alternatives, the alternatives analysis of NCDOT is relevant to the issues in this
case. This analysis is troubling because it underwent a major change mid-stream-from traffic
flow and safety to Interstate connector, and from highway upgrades to freeway design-without
a restart of the alternatives analysis. This made the alternatives analysis that was done very
confusing, and much like comparing apples and oranges.
9. However, despite all the troubling aspects, this court • is convinced by the
extensive testimony of DOT experts and those involved in the project that Petitioners have not
carried their burden of showing that the alternatives analysis was arbitrary and capricious,
erroneous, or otherwise invalid under the law. NCDOT had to consider a multitude of factors in
locating this project, including impact on neighborhoods, impacts on minority neighborhoods,
traffic safety issues, traffic flow issues, future connection issues, and all of the environmental
concerns discussed herein. Another specific example is that under FHWA regulations and US
DOT law, public parks must be avoided in the location of highways unless there are no prudent
and feasible alternatives. 49 U.S.C. § 303. All factors considered, NCDOT did a reasonable,
albeit not exemplary, job of considering alternatives and DWQ was reasonable-though it could
have done more-in relying on that consideration.
Contested Issue No. 2 - Minimization of Impacts to Wetlands
10. 15A NCAC 2H.0506(c)(2) allows the Division to issue a 401 Certification for an
activity only after a determination is made by that activity:
will minimize adverse impacts to the wetland based on consideration of
existing topography, vegetation, fish and wildlife resources, and
hydrological conditions under the criteria outlined in paragraph (g) of this
Rule; or impacts less than one acre of wetland within 150 feet (including
less than 1/3 acre of wetland within 50 feet) , of the mean high water line
- 20
or normal water level of any perennial or intermittent water body as shown
by the most recently published version of the United States Geological
Survey 1:24,000 (7.5 minute) scale topographical map or other site
specific data.
Minimization of impacts may be demonstrated by showing that the wetlands are able to
continue to support the existing uses after project completion, or that the impacts are
required due to:
(1) The spatial and dimensional requirements of the project; or
(2) The location of any existing structural or natural features that may dictate_
_ _ the placement or configuration of the proposed project; or._
(3) The purpose of the project and how the purpose relates to placement,
configuration or density. ff/ A /
?u Nt/ AS S VS C1,114
15A NCAC 2H.0506(g). X141 ?"
11. The Division failed to determine the specific existing uses of the wetlands
affected by Project R-1030, thereby calling into question the Division's wetland mitigation
determination, and failed to examine several alternatives that would have resulted in fewer
impacts to wetlands as described above.
12. However, the Division's determination that Project R-1030 would minimize
adverse impacts to wetlands was not arbitrary or capricious. The Division carefully examined
the areas in question and, with the help of the U.S. Army Corps of Engineers, negotiated a
number of significant wetland protection measures from DOT that went beyond mere mitigation.
(See Findings of Fact, supra). Likewise, the Division did not exceed its authority, act
erroneously, fail to use proper procedure, or fail to act as required by law or rule on this issue.
X?l
Contested Issue 93 - Cumulative Impacts
13. 15A NCAC 2H.0506(b)(4) and 15A NCAC 2H.0506(c)(4) prevent the Division
from issuing a 401 Certification for an activity which results in "cumulative impacts, based upon
past or reasonably anticipated future impacts, that cause or will cause a violation of downstream
water quality standards."
14. The Division did not meaningfully examine cumulative impacts associated with
Project R-1030 when making a determination of whether or not to issue the 401 Water Quality
Certification for Project R-1030. NCDOT's application for a 401 Water quality Certification did
not include information on the cumulative impacts associated with Project R-1030. Although the
Division later requested information on cumulative impacts from NCDOT, meaningful
information was not given. There was no evidence that the Division rectified this failure on the
part of NCDOT by performing its own cumulative impacts analysis. Instead, the Division's
witnesses acted as if the requirement for cumulative impacts analysis is inconsequential and
fulfilled by mere guessing about what protections might be provided by other laws or whether
21
the area was slow or high growth. Cumulative impact analysis cannot be elevated above-the
other analyses required under the law, but it is clear that such analysis is not only required, but
important.
15. The Division acted erroneously and failed to act as required by its own rules when
it failed to examine cumulative impacts related to Project R-1030. This failure incapacitated the
agency from making a decision that these - impacts would or would not cause a' violation of
downstream water quality standards.
16. The Division's determination not to examine the cumulative impacts associated
with NCDOT Project U-3125 was arbitrary and capricious. The Division assumed that Project
R-1030 had to function as an interstate link and restricted-its-examination of alternatives -
accordingly, but did not perform. a cumulative impacts analysis on the remaining links of the
interstate connector, without which R-1030 would not function as specified.
Contested Issue #4 - Critical Watershed Area
17. 15A NCAC 2B.0104(m) states:
The construction of new roads and bridges and non-residential development shall
minimize built-upon area, divert stormwater away from surface water supply
waters as much as possible, and employ best management practices (BMPs) to
minimize water quality impacts. To the extent practicable, the construction of
new roads in the critical area shall be avoided. The Department of Transportation
shall use BMPs as outlined in their document entitled "Best Management
Practices for the Protection of Surface Waters" which is hereby incorporated by
reference including all subsequent amendments and additions.
18. The Division failed to enforce this regulation and instead, indicated to
the NCDOT that it was more interested in making sure that the Neuse Buffer Rules were
followed. However, the fact that NCDOT agreed to comply with the Neuse Buffer Rules
is irrelevant to the determination of whether there were any practicable alternatives to
construction in the Critical Watershed Area. NCDOT had to follow Neuse Buffer Rules
regardless of whether Project R-1030 was built in the Critical Watershed Area.
_ 19. Although_ the Division testified that NCDOT had "done what we had
asked" with regard to the critical area, assurances of the City of Goldsboro are irrelevant
to whether the Division complied with its own regulations. The regulations do not ask
the Division to make sure that the city or town is concerned about whether a project will
impact the Critical Watershed Area, but that construction of roads be avoided wherever
practicable.
20. Despite these flaws in the analysis of critical watershed issues by the
Division, Petitioner and Petitioner-Intervenor did not meet their burden of showing that
the Director of DWQ erred in determining that it was not practicable to relocate project
- 22
R-1030 in order to avoid impacting a portion of the critical area of the water supply
watershed for the Town of Goldsboro's secondary source of drinking water.
Contested Issue #5 - NCEPA Violations
21. The North Carolina Environmental Policy Act requires that:
Every state agency shall include in every recommendation or report on any action
involving expenditure of public moneys or use of public land for projects and
programs significantly affecting the quality of the environment of this State, a
detailed statement by the responsible official setting forth the following:
a. The environmental impact of the proposed action;
b. Any significant adverse environmental effects which cannot be avoided should
the proposal be implemented;
c. Mitigation measures proposed to minimize the impact;
d. Alternatives to the proposed action
e. The relationship between the short-term uses of the environment involved in the
proposed action and maintenance and enhancement of long-term productivity; and
f. Any irreversible and irretrievable environmental changes which. would be
involved in the proposed action should it be implemented.
N.C. Gen. Stat. 113A-4(2).
22. Compliance with the NCEPA is achieved through the preparation of one or
more of the following environmental documents:
(1) an environmental assessment (EA)
(2) a finding of no significant impact (FONSI) or
(3) an environmental impact statement (EIS)
and a record of decision (ROD). 01 NCAC 25.0401
23. The EA, FONSI or EIS must be submitted to the State Clearinghouse which
"shall circulate these documents to state and local officials to obtain comments and shall publish
a Notice of Availability in the Environmental Bulletin." 01 NCAC 25 .0506 and 01 NCAC 25
.0605. -
24. NCEPA requires that an EIS must set forth a comparison of alternatives and
that:
To the extent possible, the comparison of alternatives shall quantify how the
purpose and need would be satisfied by each alternative and the proposed activity.
This section of the document shall be the heart of the EIS, sharply defining the
issues and providing a clear basis for choice among options by decision makers
and the public.
_ 23
01 NCAC 25.0603(4).
25. NCEPA requires that an EIS must analyze the environmental consequences
of the different alternatives, including:
a. direct effects and significance;
b. indirect effects and significance;
C. cumulative effects and significance
O1 NCAC-25.0603(6)(a), (b) &-(c).
26. The Division was required to comply with NCEPA when issuing the 401
Water Quality Certification for Project R-1030, under the following analysis:
a. Compliance with NCEPA is required (or, in the jargon of environmental law,
"NCEPA is triggered") when three conditions are met: (1) an expenditure of
public monies on the activity or project; (2) an action by a state agency; and (3) a
potential environmental effect. 1 NCAC 25.0108; see also N.C. Gen. Stat. 113A-
4(2).
b. As is conceded by the Respondent and Respondent-Intervenor in their briefing,
the activity or project at issue here is "the selection and implementation of ...
NCDOT Transportation Improvement Project ... R-1030."
c. Project R-1030 unquestionably involves the expenditure of public monies and
potential environmental effects. No one argues otherwise, and this is why the
series of EISs were prepared for the project.
d. Agency "action" is defined to include ""licensing, certification, permitting .. and
other similar final agency decisions the absence of which would preclude the
proposed activity." 1 NCAC 25 .0108(b)(1).
e. The issuance of the 401 Certification for R-1030 is an agency action with regard
to Project R-1030.
f. Clearly, all three conditions necessary to trigger NCEPA have been met. See In
re Environmental Management Commission, 280 N.C.App. 520, 524-26
(1981)(certification by the EMC that would allow the Orange Water and Sewer
Authority to institute eminent domain proceedings to obtain' a reservoir site
required an environmental impact statement. As in the present case, the State
"action" that triggered NCEPA was merely a certification that allowed a larger
government project to proceed).
27. This forum is the proper place and time for review of NCEPA compliance.
a. Review of NCEPA compliance is not allowed at the time the NCEPA documents
are prepared, pursuant to 1 NCAC 25 .0605(f).
b. Administrative or judicial review of NCEPA compliance is allowed only "in
connection with review of the agency action." l NCAC 25 .0605(f).
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c. Agency "action" is defined to include. "licensing, certification, permitting ... and
other similar final agency decisions the absence of which would preclude the
proposed activity." 1 NCAC 25 .0108(b)(1).
d. The issuance of the 401 Certification for R 1030 is an agency action with regard to
that project.
e. This proceeding is a review of the 401 Certification, which is an agency action,
and is therefore the proper place and time for review of the question whether the
environmental documents comply with the requirements of NCEPA.
28. The Division did not create or publish for review an Environmental
Assessment, Finding of No Significant Impact or Environmental Impact Statement for its
- issuance of the Certification. None of the documents created by the -Division, including the
Certification complied with the review process outlined by NCEPA. -
29. Instead, the Division relied upon the Environmental Impact Statements and
Record of Decision created by the NCDOT and, therefore, these were the documents subject to
review as part of this hearing.
30. The Division did not examine how the purpose and need of acting as an
interstate connector would be satisfied by each alternative and therefore failed to act as required
by law.
31. The Division and the NCDOT environmental documents failed to make any
determinations or even to identify and evaluate the cumulative impacts involved with Project R-
1030. This was in violation of 1 NCAC 25 .0603(6).
.3 A very important part of the cumulative impacts analysis that should have been
done would have analyzed the impacts of building the rest of the road that will be necessary to
complete the interstate link and thereby fulfill the stated purpose of R-1030 (the so-called
"missing link"). NCDOT, and by extension DWQ, has tried to have its cake and eat it too.
NCDOT rejected several alternatives for R-1030 on the basis that they would not serve the
interstate link purpose. Then, in its environmental analysis, NCDOT refused to consider
impacts from the missing link on the reasoning that it is not sure the missing link will ever be
built. It is one or the other: either (1) R-1030 is a connector between I-95 and I-40, in which
case it is reasonable to reject alternatives that do not serve that purpose AND the impacts of the
whole connector must be considered, either as one project in one environmental document or as
known cumulative impacts for the R1030 piece of the whole project, or (2) R-1030 is not a
connector between I-95 and I-40, in which case rejection of alternatives that do not serve that
purpose was arbitrary and capricious, but it would have been reasonable to exclude the
completion of an interstate link from cumulative impacts analysis. NCDOT has made its choice:
it says that R-1030 is part of an interstate link, and such purpose is mandated by ISTEA.
Therefore, it must analyze the cumulative impacts of the complete project, and its failure to do
was arbitrary and capricious and erroneous as a matter of law. Since the Division has elected to
rely upon the NCDOT environmental documents as its own for purposes of its 401 Certification,
these errors are attributed to the Division.
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33. NCDOT and the Division also failed to analyze any-other cumulative effects
and their impacts, as enumerated above in the cumulative impacts section. This was erroneous
and arbitrary and capricious, and the agencies failed to act as required by law or rule.
34. It should be noted that the requirement to study cumulative impacts under
NCEPA is a legally separate requirement from the requirement to study cumulative impacts
under the 401 Certification rules; 15A NCAC 211.0506. While one document might conceivably
satisfy both requirements, each failure stands alone as a-matter of law.
RECOMMENDED DECISION
IT IS HEREBY RECOMMENDED that the Environmental Management
Commission find:
1. That in issuing 401 Water Quality Certification Number 3293 to the North
Carolina Department of Transportation for construction of Project R-1030 in Wayne and Wilson
Counties, North Carolina, the Division of Water Quality acted erroneously, failed to follow
proper procedure, acted arbitrarily or capriciously, and failed to act as required by law or rule in
the ways set out in the Conclusions of Law above; and
2. That 401 Water Quality Certification No. 3293 is void.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, 6714. Mail Service Center, Raleigh, NC 27699-6714, in accordance
with G.S. 15013-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party
an opportunity to file exceptions to this recommended decision and to present written arguments
to those in the agency who will make the final decision. The agency making the final decision in
this matter is the Environmental Management Commission.
The agency is required by G.S.15013-36(b) to serve a copy of the final decision on all
parties
This is the day of October, 2001.
James L. Conner, II
nistrativ a Judge
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A copy of the foregoing was mailed to:
Larry Dale McKeel
3559 Hamstead Court
Durham, NC 27707
Petitioner
Fred Lamar
Lisa C. Glover
Assistant Attorneys General
Department of Transportation
NC Department of Justice -
1505 Mail Service Center
Raleigh, NC 27699-1505
Attorney for Respondent-Intervenor
Jill B. Hickey
Assistant Attorney General
NC Department of Justice
PO Box 629
Raleigh, NC 27602-0629
Attorney for Respondent
Theresa Nicole Gooding-Ray
Melany Earnhardt
North State Legal Services
Environmental Poverty Law Program
PO Box 670
Hillsborough. NC 27278
Attorneys for Robert Getchell
This the / O day of October, 2001.
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, North Carolina 27699-6714
919/733-2698
Fax: [phone]
27
RECEIVED
OCT 1 2 2001
N.C. ATTORNEY GENERAL
mlision