20110023_Other Agency Comments_20090515

SOUTHERN
Telephone [phone]
Facsimile 919-929-9421
[e-mail]
May 14, 2009
VIA FACSIMILE (919-733-9150) AND U.S. MAIL
Eugene A. Conti, Jr.
Secretary of Transportation
1501 MAIL SERVICE CENTER
Raleigh, NC 27699-1501
Re: Replacement of Bonner Bridge, Dare County, NC
NCDOT TIP Project Number B-2500
Dear Mr. Conti:
Charlottesville, VA
Chapel Hill, NC
Atlanta, GA
Asheville, NC
Sewanee, TN
A*@,,? We write in response to statements attributed in recent news reports to an NCDOT
representative regarding the State's interest in a right-of-way for NC 12 through Pea Island
National Wildlife Refuge in Dare County. The statements were. inaccurate, and we ask that you
immediately clarify them. The dissemination of misinformation appears timed to influence the
.upcoming May 21, 2009 meeting of the merger team at which NCDOT will ask for concurrence
on a new preferred alternative for the Bonner Bridge replacement.
Without a doubt, Bonner Bridge needs to be replaced. Yet failure to provide accurate
information on the State's interest in the right-of-way for NC 12 through Pea Island NWR could
lead to inappropriate decisions and will further delay the project. All the information we discuss
below was known to NCDOT at the time it made the statements. We obtained all of the relevant
documents discussed below in April in response to public records requests.
Recent newspaper articles' quote Jim Trogdon, NCDOT Chief Operating Officer, as
stating that the "discovery of two old deeds found in UNC-Chapel Hill archives from 1953 and
1958 allow NCDOT to "get around right-of-way issues" and "g[i]ve us the right of way any time
in the future for transportation in perpetuity." Mr. Trogdon is quoted as further stating, "That
changed the interpretation that we were forced to stay in the original right of way" and "Now
we're not constrained. Our [new] preferred alternative is not to stay within the original right of
way." He concludes the old deeds clear the way for the "Road North, Bridge South" proposal to
replace Bonner Bridge over Oregon Inlet.
' Among these are: "Unearthed deeds.clear path for Bonner Bridge project," by Catherine
Kozak, The Virginia-Pilot, May 3, 2009; "Old deeds help NC save millions on coastal bridge,"
AP, Charlotte Observer, May 4, 2009; "Deeds will make bridge cheaper," AP, News &
Observer, May 5, 2009.
ENVIRONMENTAL LAW CENTER
200 WEST FRANKLIN STREET, SUITE 330
CHAPEL HILL, NC 27516-25,59
100% recycled paper
Eugene A. Conti, Jr.
May 14, 2009
Page 2
After originally proposing the Pamlico Sound "Long Bridge" as the preferred alternative,
with concurrence from all other state and federal agencies, NCDOT has spent the last two years
working on the "Phased Approach" alternative as its new preferred alternative. NCDOT has
been promoting the Phased Approach as the least environmentally damaging alternative, largely
based on the dubious premise that it would be able to keep NC 12 within the existing right-of-
way and the additional premise that the Long Bridge alternative, although actually the least
environmentally damaging, was less affordable. The Phased Approach alternative was selected
in an effort to avoid the need for a special use permit or new easement from the U.S. Fish and
Wildlife Service, which has consistently stated it would not be able to find the project- and
especially the construction of NC 12 outside its existing right-of-way,'or even elevating it onto
bridges within its existing right-of-way - compatible with the purposes of the Refuge.
The latest selection of yet another preferred alternative - the Road North, Bridge South
alternative - is based on factual inaccuracies that appear intended to allow NCDOT to sidestep
the many downsides of that alternative identified in the Final Environmental Impact Statement
("FEIS"). We have carefully reviewed the deeds, maps, and other documents obtained from
NCDOT, and we have determined that the NCDOT statements in the newspaper articles about
the State's interest in the right-of-way or easement through Pea Island Refuge are incorrect. We
can only speculate that NCDOT may be confusing the acquisition of land for Cape Hatteras
National Seashore with the separate acquisition of land for Pea Island National Wildlife Refuge.
The North Carolina legislature established the Cape Hatteras Seashore Commission in
1939, for the purpose of acquiring land and transferring it to the federal government for the
National Seashore. The Commission acquired such lands, and then, in the 1950s, the State
conveyed those lands to the federal Department of the Interior ("DOI"). In both the legislation
creating the Commission and the subsequent transfers of property from the State to DOI for the
Seashore, the State purported to reserve a right to build and maintain roads. Two of these
transfers occurred in 1953 and 1958, the dates of the deeds cited in the recent articles; a third
occurred in 1955. The lands transferred in those deeds now comprise portions of Cape Hatteras
National Seashore. These deeds, however, have nothing to do with Pea Island Refuge or the NC
12 right-of-way through Pea Island Refuge.
The lands comprising Pea Island Refuge were acquired directly by the United States from
private landowners through condemnation proceedings in 1938, long before the 1953 and 1958
deeds.upon which NCDOT relies. The State did not own these lands and therefore did not
convey them to the United States. The State therefore could not have reserved an easement
through these properties, either in the 1953 and 1958 deeds or otherwise. Moreover, in 1951,
Congress authorized DOI to grant an easement to the State for a road through Pea Island Refuge
over the lands it had acquired. In May 1954, North Carolina quitclaimed to the United States all
interest it had in any routes or roads through Pea Island Refuge except for the then-existing NC
12 corridor. In exchange, in July 1954, DOI granted an easement specified by metes and bounds
for a 100-foot-wide NC 12 corridor. This series of events, and the State's interest in the NC
corridor through Pea Island Refuge, is accurately summarized by NCDOT in a 1979 memo:
Eugene A. Conti, Jr.
May 14, 2009
Page 3
"The right of way on NC 12 from Oregon Inlet to a point north of Rodanthe was
constructed under this [NC road construction program] and was completed July 23,
1954. The project plans show 100 feet of right of way and is all inside of Pea Island
National Wildlife Refuge. On May 20, 1954, the State of North Carolina granted a
Quitclaim deed to the United States of America for all interest that it had on Pea
Island National Wildlife Refuge, except an easement of right of way 100 feet in
width (copy attached). On July 21, 1954, the United States of America conveyed a
Deed of Easement to the State of North Carolina for a strip of land 100 feet wide for
highway right of way (copy attached)."'
The alignment of NC 12 through Pea Island Refuge was moved in 1963 and 1995 in response to
erosion and storm events. These new alignments were again specified in metes and bounds and,
importantly, required a special use permit from DOI.
In sum, the State's interest in the right-of-way for NC. 12 through Pea Island Refuge is as
specified in the 1954 deed from DOI to the State: a metes and bounds easement in the then-
existing NC 12 corridor, as subsequently modified by two realignments in 1963 and 1995
through special use permits. North Carolina simultaneously quitclaimed any other interest it had,
if it had any, in other rights-of-way or easements. Accordingly, NC 12 is fixed within its current
corridor and cannot be moved at will by NCDOT.
The Bridge North, Road South alternative depends upon construction of NC 12 outside of
its current corridor. Consequently; moving the NC 12 alignment now will require a new
easement and special use permit from DOI, which the U.S. Fish and Wildlife Service has
consistently stated it cannot issue because the perpetual construction and road impacts are
incompatible with the purposes of the refuge under the 1996 Refuge Administration Act.
We agree with Fish and Wildlife's conclusion, and that the Bridge North, Road South
alternative would therefore be unlawful. Because the alternative includes construction of NC 12
on more than 90 acres of Refuge land, it will require a compatibility analysis under section 4(f)
and will almost certainly be found to be incompatible. Our research shows that NCDOT's plan
to move NC 12 outside of its current corridor does not fit within any exception that makes
section 4(f) inapplicable, including the "joint planning exception," for the following reasons:
(1) the corridor for NC 12 was not "formally reserved ... before or at the same time" as the
refuge was created (in fact, as explained above, Pea Island Refuge was created nearly 20 years
before the granting of the first easement for NC 12); (2) even if the exception did apply, it would
only exempt from 4(f) analysis the construction of NC 12 within the corridor described in the
easement, but not construction outside the easement; and (3) there is no evidence that NCDOT
and Refuge management have engaged in any "joint planning or development" of NC 12. 23
C.F.R. § 774.11(i).
Eugene A. Conti, Jr.
May 14, 2009
Page 4
Because the Road North, Bridge South alternative is an unlawful alternative that cannot
be permitted, it is neither a reasonable alternative under NEPA nor a practicable alternative
under Section 404 of the Clean Water Act. The apparent selection of the Road North, Bridge .
South option as the latest "preferred alternative" ignores these facts. In addition, NCDOT
appears to be disregarding the many other downsides to the Road North, Bridge South alternative
identified in the FEIS. These include, for instance, that it is the alternative that will result in by
far the greatest amount of impact to biotic communities and loss of wildlife habitat and that it
will have a significant adverse effect on numerous properties identified by the State Historic
Preservation Office as eligible for listing in the National Register of Historic Places. These
shortcomings further reinforce the inappropriateness of the Bridge North/Road South alternative
as the preferred alternative.
In conclusion, in the newspaper article, Mr. Trogdon states the new preferred Road
North, Bridge South alternative is premised on NCDOT's understanding that the State has the
I right to move the NC 12 right-of-way through Pea Island NWR at will, which, as explained
above, is not true.' It is important to correct his misstatements immediately to avoid misleading
the merger team and interested stakeholders, to prevent the issuance of a Record of Decision
based on false premises, and to reduce further delay in this project.
In contrast, the Long Bridge is the safest, most responsible alternative and the best long-
term investment for North Carolina. It is a rare opportunity to,constructively address the
problems that have plagued NC 12 for decades while allowing Pea Island to finally function as a
National Wildlife Refuge. We urge your support for this alternative instead of any of the flawed
parallel bridge alternatives.
Very truly yours,
Derb Carter
Julie Youngman
Southern Environmental Law Center
cc: Merger Team:
Beth Smyre, NC DOT
Gregory J. Thorpe, NC DOT
Carl B. Goode, Jr. PE, NC DOT
Bill Biddlecome, US Army Corps of Engineers
Chris Militscher, US Environmental Protection Agency
Ron Sechler, National Marine Fisheries Service
Clarence Coleman, Federal Highway Administration
Eugene A. Conti, Jr.
May 14, 2009
Page 5
Mike Murray, National Park Service
Pete Benjamin, US Fish and Wildlife Service
Gary Jordan, US Fish and Wildlife Service
Mike Bryant, US Fish and Wildlife Service - Pea Island National Wildlife Refuge
Brian Wrenn, NC Division of Water Quality
David Wainwright, NC Division of Water Quality
David Cox, NC Wildlife Resources Commission
Travis Wilson, NC Wildlife Resources Commission
Jim Gregson, NC Division of Coastal Management
Sara Winslow, NC Division of Marine Fisheries
Renee Gledhill-Earley, SHPO