20110023_Information Letter_20091211

SMENT c T
°s Fyn United States Department of the Interior
a OFFICE OF THE SECRETARY
Washington, DC 20240
s
M4RCq a ?e
DEC 3 2009 9043.1
PEP/NRM
ER 071206
Mr. John F. Sullivan III
Division Administrator
Federal Highway Administration
10 New Bern Avenue, Suite 410
Raleigh, North Carolina 27601
V
'e0o, O
SUBJECT: Comments on the Revised Final Section 4(0 Evaluation for the NC 12
Replacement of Herbert C. Bonner Bridge (No. 11) over Oregon Inlet, Dare
County, North Carolina
Dear Mr. Sullivan:
The Department of the Interior has reviewed the Revised Final Section 4(f) Evaluation
for the NC 12 Replacement of Herbert C. Bonner Bridge (No. 11) over Oregon Inlet,
Dare County, North Carolina, and provides comments by the U.S. Fish and Wildlife
Service (Service).
The Service has provided detailed comments on this project throughout the planning
process, raising numerous concerns about the effects of Parallel Bridge Corridor
alternatives on Pea Island National Wildlife Refuge (Refuge). The current revised
evaluation neither resolves these concerns nor does it appropriately address potential
impacts to the Refuge. These concerns have been raised numerous times, including
comments on the draft and final versions of the project's Environmental Impact
Statement (EIS), provided in letters from the Department of the Interior (Department)
dated February 13, 2006, and October 28, 2008. The Service also provided comments
on the Final Environmental Impact Statement (FEIS) and Final Section 4(f) Evaluation,
dated April 30, 2009. Most recently, in a letter to the North Carolina Department of
Transportation (NCDOT) dated July 31, 2009 (see attachment), the Service pointed out
the numerous statements and conclusions put forth in documents provided by NCDOT
and the Federal Highway Administration (FHWA) that we believe were in error. This
was done in the hope that such errors would be corrected in subsequent decision
documents issued by these agencies. We note that this letter is not referenced in any
of the documentation provided with the Revised Final Section 4(f) Evaluation, and we
are unsure if those concerns have been addressed or considered in any way. We
continue to encourage the NCDOT and FHWA to address these issues.
z
The Revised Final Section 4(f) Evaluation describes a new preferred alternative
(Parallel Bridge with NC 12 Transportation Management Plan, or PB/TMP) and provides
an analysis and discussion of the feasibility and prudency of various previously
assessed alternatives compared with the PB/TMP. Lacking from the analysis is a
discussion of the ability of each alternative (particularly the new preferred alternative) to
comply with federal law; namely the National Wildlife Refuge System Improvement Act
of 1997 (Refuge Improvement Act), and National Environmental Policy Act (NEPA).
Compliance with these laws is an important factor regarding the prudency of pursuing
such a course of action.
Refuge Improvement Act Concerns
The Service believes that the Revised Final Section 4(f) Evaluation, which identifies the
PBfTMP alternative as the preferred course for federal action, in conjunction with NEPA
documents prepared to date, are inadequate to support the decisions required of us
under Federal law. Specifically, in order for the first phase of this new alternative to be
implemented, the Service must determine that the proposed use of Refuge lands for
construction of the new bridge can be considered a "minor' change to the existing right-
of-way, or must be otherwise compatible with the purposes for which the Refuge was
established. This determination must be viewed in the context of the overall direct,
indirect, and cumulative effects of the project. The Service has consistently stated for
many years that all of the Parallel Bridge Corridor alternatives put forth to date would
likely result in substantial adverse impacts to the Refuge outside the existing NC 12
right-of-way. As such these alternatives would not likely be found compatible with the
purposes for which the Refuge was established, per the Refuge Improvement Act.
The new PB/TMP alternative compounds these inadequacies by deferring decisions
regarding most of the project until undetermined points in the future. The Service never
concurred that the previously identified preferred alternative (Parallel Bridge with
Phased Approach) should be identified as the preferred alternative due to the above-
stated issues of compatibility (see the September 11, 2007 letter from the Acting
Assistant Secretary of Interior to Governor Easley for reference). Nonetheless, the
Phased Approach at least arguably provided some analysis of what could be
considered a plan for a complete project that met the stated purpose and need. To the
contrary, the new preferred alternative described in the Revised Final Section 4(f)
Evaluation provides no description for most of the project except to say that decisions
regarding the later phases, "could consist of, but would not be limited to, one or more
components of any of the alternatives already studied as part of the environmental
review process" (Revised Final Section 4(f) Evaluation, Page 6). In other words, the
project could include anything (studied or unstudied in the environmental review
process) between the southern terminus of the view bridge and Rodanthe. As a result,
the effects of these undescribed future phases of the project have not been analyzed in
any meaningful way, or even placed within some reasonable bounds regarding impacts
to the Refuge.
The Service cannot make decisions regarding impacts to the Refuge, including the
decision to grant a minor modification of the existing right-of-way, based on the current
document. As such, it is no longer clear to us that we can "separate the replacement of
the Bonner Bridge... from the more difficult and less urgent issues of realignment of the
road," as discussed in the July 6, 2006, letter from the Secretary of Interior to Senator
Burr and Governor Easley, without extensive additional analysis and documentation.
NEPA Concerns
The FHWA and NCDOT chose to describe a new preferred alternative in this Revised
Final Section 4(f) Evaluation, and we understand that some form of revised NEPA
document is being prepared. With that understanding we are providing the following
comments for your use in preparation of that document. Based on statements
contained in the Revised Final Section 4(t] Evaluation, FHWA and NCDOT appear to
believe the NEPA documents prepared to date sufficiently evaluate the PB/TMP
alternative because it would represent some, as yet undetermined, combination of
previously evaluated alternatives. However, the statement that the new preferred
alternative would "...include but not be limited to one or more of the components
already studied..." (Revised Final Section 4(f) Evaluation, pg. 6, emphasis added)
implies that these actions may not be confined to the range of alternatives thus far
considered. It is clear that construction of Phase I (replacement of the Bridge) would
limit options for future actions to those that would adversely affect the Refuge. It is also
clearly contemplated in the Revised Final 4(f) Evaluation that future maintenance of NC
12 would occur on an as needed basis and is not intended by NCDOT and FHWA to be
restricted to the existing right-of-way. For example, Appendix E, Figure S-1 shows a
shaded area within which future phases of the new preferred alternative would be
located. This area extends well beyond the existing right-of-way. The PB/TMP also
references activities, such as beach nourishment and abandonment of old roads that
would likely occur outside of the current right-of-way. These activities could result in the
net loss of high quality habitat on the refuge. Additionally, Appendix G (pg. 17) refers to
the need to stay within the existing right-of-way as "...an artificial and imprudent
constraint." The Service disagrees with this statement and maintains that requiring
strict adherence to the existing right-of-way is a valid statutory requirement. By
proposing to proceed with Phase I of the project while deferring decision-making for
most of the project to unspecified future dates, and without providing any clear sense of
what those decisions may be or upon what factors they will be based, NCDOT and
FHWA have not fully analyzed the alternatives in the NEPA document. By going
forward, the NCDOT and FHWA are proposing to make an irretrievable commitment of
resources (construction of Phase 1) while inappropriately segmenting the project.
The PB/TMP alternative attempts to overcome the lack of specificity by referring to a
Transportation Management Plan and/or Partnership Agreement, the essence of which
is that "later phases of actions to manage NC 12 through 2060 would be decided based
on actual conditions existing on Hatteras Island at the point in time that additional action
becomes necessary" (Revised Final Section 4(f) Evaluation, pg. 5). A draft Partnership
Agreement is included in Appendix H of the document. The Service was not consulted
in the preparation of the draft Partnership Agreement and fundamentally disagrees with
its content. The agreement as drafted fails to recognize the purpose for which the
Refuge was established, fails to acknowledge that allowed uses of Refuge lands must
be compatible with the purpose for which the Refuge was established, implies that
parties to the agreement concur with the selection of the new preferred alternative, and
would place the desire to maintain access to and through the Refuge above the wildlife
management mission of the Refuge. The Service is in the process of developing
detailed comments regarding the Partnership Agreement, but notes that the draft
presented is so flawed that we believe it would be more productive for the prospective
partners to meet first in an attempt to establish the basic principles upon which such an
agreement could be built.
As noted in the Revised Final Section 4(f) Evaluation, the idea of the new preferred
alternative was put forth by the U.S. Environmental Protection Agency (EPA) at the
May 21, 2009 meeting of the Merger Team. At the meeting, the EPA representative
presented the alternative in the context of Adaptive Management. The Service noted at
the time that we support the application of Adaptive Management principles where
appropriate. We provided the Merger Team members a copy of the Department's 2007
Adaptive Management Technical Guide in order to further the discussion of the
appropriateness of applying Adaptive Management principles to the current issue. We
note that there has been no discussion of Adaptive Management related to this project
involving Service representatives since that meeting, and the principles of Adaptive
Management are not reflected anywhere in the Revised Final Section 4(f) Evaluation or
the draft Partnership Agreement.
Regardless of what form a Transportation Management Plan or Partnership Agreement
may take, or the extent to which principles of Adaptive Management are incorporated
into the plan, these features do not eliminate the NEPA requirements to describe a
single and complete project and rigorously assess the effects of said project on the
quality of the human environment. The Service does not understand how these issues,
and the concerns previously expressed by us, can be addressed without preparing a
Supplemental EIS.
General Concerns
The basic premise of the Revised Final Section 4(f) Evaluation revolves around two
concepts. The first involves consideration of alternatives that are feasible and prudent
and the second invokes "new information" that NCDOT and FHWA present to refine and
define the concept of "use" as it applies to 4(f) properties. Then, FHWA selectively uses
the information to incorrectly determine that there is no use of the Refuge as a refuge,
but there is a use as a historic property.
Regarding feasible and prudent alternatives, it must be noted that the Pamlico Sound
Bridge Alternative was considered as a feasible and prudent alternative by all agencies
until 2003. The record shows that all participants in the Merger Team, representing 13
state and federal agencies, agreed to sign a concurrence statement for studying this
alternative when a North Carolina Board of Transportation member stopped the
process. Since that time, both NCDOT and FHWA have expended considerable time
and effort to transition to the "Phased Approach" as presented in the FEIS. In fact, as
we have repeatedly stated throughout the planning process, all of the alternatives put
forth to date within the Parallel Bridge Corridor (including the Phased approach and
PB/TMP) will most likely require work outside the existing right-of-way, and as such are
not likely to be found compatible with the purposes for which the Refuge was
established. In this instance, none of the Parallel Bridge Corridor alternatives could be
authorized under Federal law.
The effects of climate change will likely shape the options available to NCDOT and
FHWA for NC 12 and further hinder their efforts to confine work within the existing right-
of-way. North Carolina's coast is on the front-line when it comes to addressing impacts
from accelerating climate change. Normal erosion, sea level rise impacts in the next 20
years alone, and the effects of tropical storms and hurricanes have and will continue to
change the coast-line and coastal habitats on this dynamic barrier island system. We
believe, based on projections between now and 2030, sections of this highway will be
consistently under water from erosion and the effects of sea level rise. These changes
to the habitats at the Refuge will accelerate with climate change. Projects like this
demand a visionary approach that contemplates the best adaptive science taking into
account both ecological effects and the needs of our citizens.
Regarding the use of the Refuge, a fundamental issue is that FHWA considers the
Refuge to not be a Section 4(f) property as a refuge (pgs. 12-14), but only as a historic
property. The FHWA's Section 4(f) Evaluation contains a number of additional
inaccuracies relating to the Refuge, such as the relationship between the Service and
the National Park Service (NPS), and the existence of a public thoroughfare across Pea
Island prlor to the establlshment of the Refuge.
The Service asserts that FHWA's Section 4(f) evaluation and their subsequent
determination that the Refuge (as a refuge) is not a Section 4(f) property are based on a
number of unsupported or inaccurate assumptions. In the Revised Final Section 4(f)
Evaluation, FHWA incorrectly bases their argument on the premise that the Refuge and
NC 12 were "concurrently and jointly planned and developed" (pg.12). In the section
"Constructive Use," the FHWA underplays the Refuge as an example of an early 20'"
century "wildlife sanctuary" eligible under the historic context of "conservation." By
underplaying this aspect, the FHWA argues that this undertaking "Would constructively
use the Refuge (as a historic property)" and avoid designating the Refuge as a Section
4(f) property. As Furr (2008) noted, "The Refuge was determined eligible for the
National Register because it was part of two national movements, the creation of wildlife
sanctuaries across the United States, and the employment of thousands in the CCC."
We believe, based on historical and legal analyses (refer to the attached July 31, 2009
letter and reference therein), that FHWA and NCDOT conclusions are incorrect and that
they continue to confuse the Service and the NPS in their discussions. The Service and
the NPS, although both housed in the Department, possess unique histories, different
missions, organizational structures, and operate under different legislative mandates.
As the Service explained in detail in our July 31, 2009 letter to NCDOT (attached), the
Refuge is not an overlay on the NPS's Cape Hatteras National Seashores managed by
the Service pursuant to a Memorandum of Agreement, as stated on page 13. The
Refuge is a functioning unit of the National Wildlife Refuge System established in 1938
by Executive Omer 7864, owned and administered by the Service. The Service's title
chain, not only Is robust, but documents that the agency acquired lands from private
land owners unencumbered by any third party right-of-way. The State of North Carolina
did not acquire a right-of-way across the Refuge until 1954, well after the establishment
of the Refuge. As articulated in FHWA regulations (23 CFR Part 774.11), the concept
of "joint planning" applies when a property is formally reserved for a future
transportation facility before or at the same time a park, recreation area, or wildlife and
waterfowl refuge is established. Clearly this did not happen with respect to the
establishment of the NC 12 right-of-way through the Refuge.
The FHWA's assertion that a public thoroughfare across Pea Island existed prior to the
creation of the Refuge is based upon a 1938 State Highway and Public Works
Commission map. Oral history, the Refuge's Annual Narrative, and NPS records do not
support this assertion. The Service addressed this assertion in detail in the April 24,
2009, "Section 106 Effects Analysis Regarding Bonner Bridge Replacement Alternatives
and Adverse Impacts to Pea Island National Wildlife Refuge" and in the attached July
31, 2009, letter from the Service. The case presented by FHWA ignores the fact that
the transportation uses they base their conclusions upon are derived largely from
Informal use of the beach as a transportation corridor. People drove on the beach
unless the tide was high to the point that the beach was impassable. The beach was
also used as an ephemeral truck corridor by the Civilian Conservation Corps (CCC).
The Service is not aware of any records that indicate: that an actual "road" existed in any
commonly understood use of the term. When the Refuge was established in 1938,
none of the property deeds contained any.reservations or easements for a public
7
transportation facility. Consequently, there is no history of a public transportation
infrastructure or joint planning or collaboration predating the Refuge, or on the Refuge,
until a right to construct and maintain a road in a specific location with a specified width
was conveyed in a permanent easement in the 1950's.
By segmenting the original project into two parts consisting of the replacement of the
Bridge and the NC 12 Transportation Management Plan, FHWA attempts to ignore or
underplay the project's direct and indirect adverse impacts to the Refuge, both as a
functioning unit of the National Wildlife Refuge System and as a National Register-
eligible historic landscape. The Refuge will be irrevocably harmed by the preferred
alternative and any subsequent actions implemented under the NC Transportation
Management Plan, primarily due to the exacerbation of the shoreline erosion or loss
caused by NCDOT's continuing interruption of the island's geomorphic processes.
Recent history shows average winds and tides during storms do cause significant
overwash across sections of NC 12 along several sections of highway. The Service has
Issued emergency special use permits to allow the state to clear the highway. We are
currently evaluating that approach because of its impacts to wildlife, associated coastal
and estuarine habitats and the complex ecological dynamics of barrier islands, which
will only be amplified by ongoing erosion and the growing effect of sea level rise along
the North Carolina coast related to accelerating climate change.
An issue not presented for discussion in the Revised Final Section 4(f) Evaluation is the
Oregon Inlet Terminal Groin. We understand that FHWA has informed NCDOT that
they will not provide funding for the project untll the Service issues a new special use
permit for retaining the terminal groin. Some dialogue between the Refuge, FHWA, and
NCDOT has occurred on the Issues around the terminal groin permit. At this time, the
Refuge has submitted a scope of work to FHWA and NCDOT for data analysis by
appropriate coastal experts as input to the decision-making process to help with the
analysis associated with a permit decision. If FHWA intends to link these project
features, we suggest both should be addressed in this revised document.
Specific Comments on the Revised Final Section 4(f) Evaluation
Pg. 5 states "The new Preferred Alternative would allow all agencies to minimize risks
by building what Is needed now, and managing the rest of the project area on an as
needed basis." The Service fails to see how this allows us to "minimize risks"
considering that there is no plan beyond building the bridge, While It may minimize
risks for the highway, the "plan" should also minimize risk to natural resources on the
Refuge where possible.
Pg. 5 and the cover page to Appendix H reference agreements of the Merger Team
regarding the possible need for a new Concurrence Point 3 form, at a September 17,
2009, meeting. Agreement on Concurrence Point 3 indicates agreement regarding the
8
selection of the preferred alternative. The Service does not concur with the revised
Concurrence Point 3 (Least Environmentally Damaging Practicable Alternative). We
question why Appendix H is included in this document, since the Merger Team (which
included most of the Merger Team agencies minus the Service, who was not present)
decided not to move forward with this specific partnership agreement. We recommend
that you remove Appendix H.
Pg. 6 states "Under the Parallel Bridge Corridor with NC 12 Transportation Management
Plan Alternative, later phases of actions to manage NC 12 through 2060 would be
decided based on actual conditions existing on Hatteras Island at the point in time that
additional action becomes necessary." We point out that the NC 12 Transportation
Management Plan portion is not actually a formal plan, but rather a deference to make
plans at a later time. The problem with this approach is well illustrated by recent events.
During the week of November 9, 2009, a storm battered the eastern seaboard. The
storm severely damaged the portion of NC 12 at the southern end of the Refuge near
Rodanthe. The beach and berm that formerly protected the road from the ocean are
largely gone and it would appear that these "actual conditions" indicate that additional
action is necessary. Yet, there is no "plan" for dealing with what would be this next
"phase" of the project explicitly stated in the PBlTMP alternative. The only response
possible under these crisis conditions is to rush in and attempt to repair the damage.
Clearly, waiting for emergencies to dictate action is not conducive to sound long-term
decision-making. Yet, based on the FEIS, future decisions regarding the fate of NC 12
and the Refuge would be made under the PBITMP alternative in this manner.
By "mixing and matching" components of the previously presented alternatives, the NC
12 Transportation Management Plan becomes a plan equating to emergency response
for erosion and ocean overwash. Also, the FEIS preferred alternative was based upon
the premise that bridging and NC 12 maintenance in the Phased Approach were all
envisioned to be done within the existing right-of-way. The new preferred alternative
clearly envisions work outside the existing right-of-way (note our comments above and
references to Appendices E and G). We note again, that work outside the existing right-
of-way is not likely to be found compatible with the purposes for which the Refuge was
established and as such may not be allowed. We recommend that NCDOT and FHWA
decide on a final alternative and work with us to conduct a compatibility determination
so that you can maintain your schedule.
Pgs. 9-13 present substantial information regarding historic use and deed reservations.
Most of the information is relative to the Cape Hatteras National Seashore, whlle very
little is relevant to the Refuge as there were no restrictions, reservations, or easements
within or attached to the deeds at the time the Refuge land was purchased.
Consequently, the manner and format for presenting this information is very misleading
and does not reflect an accurate assessment of the language within the deeds of
respective lands. We recommend that NCDOT and FHWA revise their decision
documents to acknowledge the fact that the Refuge and Cape Hatteras National
Seashore are distinct properties, established under distinct authorities, and managed by
separate federal agencies under separate authorities. We further recommend that
NCDOT and FHWA revise their decision documents to reflect the requirement to ensure
that their actions are compatible with the purposes for which the Refuge was
established.
Pgs. 22-23 and related content in Appendix E imply there Is final agreement as to what
constitutes a minor modification to the existing right-of-way for the southern terminus of
the Parallel Bridge. It also implies that a shift may occur in the NC 12 right-of-way of
about 216.5 feet further west as the Parallel Bridge makes landfall on the north end of
the Refuge. The Refuge, NCDOT, and FHWA have had meetings with regard to what
would constitute a minor modification to the existing right-of-way. Discussions at these
meetings have been in the context of what could possibly be viewed as a minor
modification with appropriate mitigation for the use of Refuge land. To date, there have
been no agreements on either the right-of-way or mitigation. We are unaware of any
finalized NCDOT proposal. Nothing has been presented to the Refuge that finalizes a
shift in alignment and no requests have been made for a right-of-way modification.
Therefore, the shift of 216.5 feet west should be considered tentative because we are
still working on the specific details with NCDOT and FHWA. Appendix E also presents
acreage estimates for new easement, but, because there have been no final
agreements with the Refuge, acreage numbers are likely to change. We require a final
design proposal for a request to modify the existing right-of-way along with adequate
NEPA documentation and a compensatory mitigation plan. Only then we can determine
if the proposed modification is minor under our regulations (50 CFR 26.41).
Pg. 23 implies that the Service may discontinue recreational fishing as a Refuge use.
That statement is incorrect. Recreational fishing is identified in the Refuge
Improvement Act as one of the six public uses meeting the wildlife dependency criteria.
If this statement in any way implies that the Service will assume responsibility for
maintenance of a remnant portion of the Bonner Bridge attached to the Refuge for
fishing access then FHWA must clarify this section. The Service has stated in the past,
and remains steadfast, that under no circumstances will we assume ownership or
responsibility for maintenance of a remnant portion of the Bonner Bridge. We will
continue to allow fishing along the shoreline in the vicinity of Oregon Inlet when
compatible. We recommend you clarify this section.
Pg. 27 states that the new preferred alternative "... Is the alternative that causes the
least overall harm," We cannot support such a conclusion, and question how FHWA
and NCDOT made this determination since, based on the information contained in the
document, they do not know what future phases of the project will look like based on the
10
uncertainties of future conditions. We recommend clarifying text on how NCDOT and
FHWA reached this conclusion.
We have endeavored to work with the NCDOT and FHWA to resolve these and other
Issues throughout this process, but the current approach of the transportation agencies
(as articulated in this Revised Final Section 4(f) Evaluation) continues to inadequately
address fundamental concerns raised by the Service, and raises additional concerns
that represent a substantial move away from a workable solution. We thank you for the
opportunity to review and comment on this document.
If you have questions with regards to these comments, please contact Mike Bryant,
Refuge Manager, at [phone] x 222, or Pete Benjamin, Field Supervisor, Raleigh
Field Office, at [phone] x 11.
Sin?erely,
Willie R. Taylor
Director, Office of Environmental Policy
and Policy
Attachment: U.S. Fish and Wildlife Service letter dated July 31, 2009
Reference:
Furr, Mary Pope 2008. Finding of Adverse Effect Documentation for Replacement of the
Bonner Bridge (Bridge No. 11) on NC12 over Oregon Inlet, Dare County, North
Carolina. TIP#B-2500, State Project WC8#32653, Federal Ald#BRS-2358(15). North
Carolina Department of Transportation, Human Environmental Unit, Raleigh, North
Carolina.