20110023_Other Agency Comments_20090527

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO
ATTENTION OF:
May 15, 2009
Regulatory Division
Subject: Action ID. 199303077
Dr. Gregory J. Thorpe, Ph.D.
Environmental Management Director, PDEA
North Carolina Dcpartment of Transportation
1595 Mail Service Center
Raleigh, North Carolina 27699-1545
Dear Dr. Thorpe:

17
?
V

Please reference the May 7, 2009 e-mail from Ms. Beth Smyre regarding the
scheduled May 21, 2009, concurrence meeting to revisit the Least Environmentally
Damaging Practicable Alternative (LEDPA) decision made in 2007 for the replacement
ol'Herbert C. Bonner Bridge, TIP No. 2500, Dare County, North Carolina.
It is our understanding based on the previous March 26, 2009, concurrence
information meeting and the May 7 e-mail that NCDOT and FHWA are now asking that
the Merger Team reconvene and agree that the Road North/Bridge South alternative
represents the LEDPA for the proposed project. In response to this request, we have
concluded there are too many significant issues concerning this project which need to be
resolved before schedufing and asking for concurrence on this alternative from the
merger team members. Accordingly, we strongly recommend that the meeting scheduled
for May 21, 2009, be provided as an information only meeting and a formal concurrence
meeting be rescheduled for a later date. Our primary concerns regarding the current
status of this project are aS follows:
The issue of right-of-way Still needs to be resolved on Pea Island National
Wildlife 12efuge Property. Based on a recent published news article quoting NCDOT's
chief operating officer. NCDOT believes- it has the right, in perpetuity, to place the road
on any part of the refuge for future transportation needs. However, based on recent
conversations with [lie Department of Interior (DO]), they believe this is an erroneous
statement and that there is a set right-of-way for NC Highway 12 with defined metes and
bounds. As this raises issues with Compatibility of Use and may dictate where the road
can actually be built; we recommend the entire easement conflict issue be discussed
among DOI, FHWA and NCDOT, taken to arbitration if necessary, and completely
resolved before we are asked to select alternatives under NEPA and Section 404 of the
Clean Water Act.

2. A revised Road North/Bridge South alternative has been presented to DOI in
the current Section 106 consultation that the Merger team has not had a chance to review.
This revised alternative is different from the Road North/Bridge South alternative
described in the Final Environmental Impact Statement (FEIS) and the merger team has
not received any additional information pertaining to this revised alternative. It appears
based on a map that was furnished to us by FHWA in an April 13, 2009, e-mail that the
proposed road location for the revised Road North/Bridge South (RN/BS) alternative is
west of the current roadway but still east of the impoundments on Pea Island. The
original Road North/Bridge South alternative presented in the FEIS impacted all three of
the impoundments. Based on thc.new map, it appears the revised RN/BS alternative
would be impacted by erosion prior to 2050 based on the current shoreline erosion map.
As you are aware, a purpose for this project is that it will "provide a replacement crossing
that will not be endangered by shoreline movement through year 2050." It is our opinion
that this revised alternative does not meet the purpose and need of the project. The
merger team cannot select an alternative that does not meet the purpose and need of the
project.
3. It appears that disagreement remains between NCDOT, FHWA, DOI, and
SH130 over determinations made regarding Section 106 resources. In the original FEIS it
was determined that the Pamlico Sound Bridge had "No Effect" to the Pea Island
National Wildlife Refuge. It is FHWA's intent to revise this to an "Adverse Effect"
determination against the recommendations of SHPO and DOI. If FHWA and NCDOT
wish to re-evaluate alternatives, it is our recommendation that Section 106 determinations
on the Pea Island National Wildlife Refuge be resolved before the merger team is asked
to select another alternative.
4. We were in agreement with NCDOT and FHWA in 2007 that the Phased
Approach represented the LEDPA. We determined at that point based on information
presented to the merger team by FHWA and NCDOT that the phased approach was
practicable and was the least damaging alternative studied in the FEIS. The difference in
the impacts between the RN/BS and phased alternatives to jurisdictional wetlands alone
is 50 acres. Other impacts to aquatic resources and the refuge itself, which, in accordance
with the 404 b ( I ) Guidelines is considered a special aquatic site, are much greater with
the RN/BS alternative when compared to the Phased Approach. In accordance with our
regulations, including the 404 b (I) Guidelines, we are unable to authorize projects where
it has been demonstrated that a less damaging, practicable alternative CXists, unless that
alternative has other significant adverse environmental effects.
Finally, it was stated by FHWA at the March 26, 2009, meeting that a re-evaluation
of the Record of Decision (ROD) would be accomplished to determine if there were any
new significant impacts that would be the catalyst for possibly writing a Supplemental
EIS. It is our opinion that if FI-I WA and NCDOT wish to pursue the revised RN/BS
alternative and revisit the LEDPA decision, a supplemental EIS may need to be
completed. In closing, we strongly believe it would be inappropriate to convene a
Merger Team meeting until the issues, as outlined above, have been resolved.
3

If you have any questions regarding this correspondence, please do not hesitate to
contact Mr. William Biddlecome at the Washington Regulatory Field Office, telephone
[phone] or Scott McLendon at [phone].
Sincerely,
. / '
S. Kenneth Jolly
Chief, Regulatory Division
Copies Furnished:
Renee Gledhill-Earley
North Carolina State Historic Preservation Office
4617 Mail Service Center
Raleigh, North Carolina 27699-4617
Mr. Doug Haggett
Division of Coastal Management
North Carolina Department of Environment,
And Natural ResOUrCeS
400 Commerce Avenue
Raleigh. North Carolina 28557-342 1
Mr. Ron Sechler
National Marine Fisheries Service
101 Pivers Island
Beaufort, North Carolina 25516
Mr. Pete Benjamin
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh. North Carolina 27636-3726
Mr. Chris Militscher
U.S. Environmental Protection Agency
C/O FFIWA, Raleigh Area Office
310 New Bern Avenue, Room 206
Raleigh, North Carolina 27601
4
Mr. Travis Wilson
Eastern Region Highway Project Coordinator
Habitat Conservation Program
1 142 1-55 Service Road
Creedmoor. North Carolina 27522
Mr. Brian Wrenn Ile"
Water Quality Secnon
North Carolina Division of Environment
and Natural Re50m'ees
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
N'Ir. Ronald J. Mikaluk. Chief
Wetlands Section-Region IV
Water Management Division
U.S. E11vironmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303
Mr. Clarence Coleman, PE
Federal Highway Administration
310 New Bern Avenue, Suitc 410
Raleigh, North Carolina 27601-1413
Mr. Mike Bryant
U.S. Fish and Wildlife Service
Pea Island National Wildlife Refuge
P.O. Box 1969
Manteo. North Carolina 27954
I