Loading...
HomeMy WebLinkAbout20110023_Meeting Minutes_20090629-too YEARS To: May 21. 2009 Bonner Bridge Meager loam Meeting Attendees From: John Page, Parsons Brinckerhoff Dale: .[title 29, 2009 Subject: Meeting Minutes - May 21, 2009 NLPA/Section 404 Merger Team Meeting for the Bonner Bridge Replacement Project (TIP No. B-2500) Attendees: Gary Jordan USFWS - Raleigh Field Office Pete Benjamin USFWS- Raleigh Field Office iblike Bryant USFWS - NC Coastal Plain Refuge Complex Dennis Stewart USFWS - Pea Island National Wildlife Refuge Bill Biddlecome US Artily Cotes of Engineers Christopher A. Militscher USEPA Kathy Matthews USEPA Ron Sechler National Marine Fisheries Service Thayer Broili National Park Service - Outer Banks Group Clarence Coleman PHWA-NC Division Ron Lucas FH WA - NC Division Dianc Mobley FHWA (by phone) MichclleSayyar PHWA(byphonc) Rob Ayers FHWA - NCDivision Amy Simes NCDENR Jim Gregson NCDENR - DCM Cathy Brittingham NCDENR-DCM Michele Walker NCDENR - DCM Sara Winslow NCDENR - DMF (by phone) Brian Wrenn NCDENR - DWQ David Wainwright NCDBNR-DWQ l'ravis Wilson NCDI-NR- Wildlife Resources Commission David Cox NCDENR - Wildlife Resowces Commission Renee Gledhill-Barley NCDCR-SlIPO Morgan Jethro Albemarle RPO (,by phone) Greg Thorpe NCDOT - PDEA Beth Smyre NCDOT- PDEA Brian Yamamoto NCDOT-PDEA Rob Hanson NCDOT-PDEA Drew.loyner NCDOT- I-luman Environment Unit Mary Pope Fu1T NCDOT- Human Environment Unit MichaclTurchy NCDOT - Natural Environment Unit Chris Rivenbark NCDOT-Natural Environment Unit Elizabeth Lusk NCDOT - Natural Environment Unit Morgan Weatherford NCDOT-Natural Environment Unit Leilani Paugh NCDOT - Natural Environment Unit Over a Century of Engineering Excellence too YEARS G) Page 2 June 29, 2009 Minutes: May 21, 2009 Merger Team Mecting for Bonner Bridge Don,., Taylor NCDOT - Roadway Design Jerry Jennings NCDOT- Division I Ray Mchnvre NCDOT-TIP Development Unit Victor Barbour NCDOT - TechnicalServices Mark Staley NCDOT -Roadside Environmental Unit Nilesh SLIM NCDOT - Transportation Program Management Unit Virginia Mabry NCDOT - Transportation Program Management Unit Lonnie Brooks NCDOT-StruGure Design Unit Scott Slusscr North Carolina Department 01'Justice Sean Doyle North Carolina Department of ,lustice Don O'Toole North Carolina Department of Justice John Page Parsons Brinckerhoff Bobby Norburn Parsons Brinckerhoff The meeting started at 1:00 p.m. in the Board Room of the NCDOT Transportation Building. Bill Biddlecome opened the meeting and asked the attendees to introduce themselves. He then turned the meeting over to Beth Smyre. Bill said that there was sonic confusion as to the purpose of today's mecting- the purpose could either be to revisit Concurrence Point No. 3, or it could be an informational mecting. Beth said that the reason for the uncertainty on the purpose of the meeting was because NCDOT had initially planned to seek concurrence on a new LEDPA, but whether or not that occurs will depend partially on how the meeting progresses. Beth started to present the meeting packet which was distributed to the Merger Team prior to the meeting. She discussed the Road North/Bridge South (Avoid Ponds) Alternative and the reason it was developed (i.e., because of the Section 106 adverse effects determination for the Pea Island National Wildlife Refuge with the original Road North tidge South Alternative). She said that this alternative tries to address this determination by avoiding the ponds. Beth described the alternative using a map that was included in the packet. There was discussion on a possible alignment behind the ponds, but NCDOT did not pursue this alignment because of the potential for high wetland impacts. Beth noted that the impacts with the "Avoid Ponds" Alternative were included in the meeting handout with the impacts for the other project alternatives. Rence Gledhill-Earley said that she had seen this alternative previously at a Section 106 coordination meeting, and that it does not really avoid the ponds. Dennis Stewart said that it would really be considered as being in the ponds, as it appears to impact marsh areas that are considered a part of the ponds. Beth said that aerial photographs showed it as being out of the Ponds and in the adjoining wetlands, but that this would need to be field verified if that option was selected. However, the adverse effects determination for the Refuge did not change wish the "Avoid Ponds" Alternative because of the "Bridge SOUIh" segment of the alternative. Over a Century of Engineering Excellence 100 YEANS ? Page 3 June 29. 2009 Minutes: May 21, 2009 Merger'ream Meeting for Bonner Bridge Beth asked for further feedback on the "Avoid Ponds" Alternative. Renee reiterated that there was still an Adverse Lffect on the Refuge because of the bridging in the southern part of the Refuge. In response to a question from Bill Biddlecomc; Renee said that any bridging through the historic landscape of the Refuge would be an Adverse Effect. Clarence Coleman asked which Parallel Bridge Corridor alternative would be preferred from the perspective of Section 106 impacts. Renee responded that whichever alternative minimizes impacts would be preferred: however. in keeping with the intent of the Merger Teaan Process, she said that wants to know what the other agencies think about which alternative minimizes impacts before deciding which one she thinks minimizes impacts. She said she was not ready to express a preference yet. Cathy Brittingham noted that biotic community impacts were listed in the handout tables. but CAMA wetland impacts were not shown. She asked whal percentage of the wetland impacts were CAMA wetland impacts. Dennis discussed the location of CAMA wetlands in the Refuge. The high wetland impacts for the Road North/Bridge South Alternative in relationship to the other alternatives were discussed further. Cathy said that she wants the CAMA coastal wetlands impacts listed separately as NCDENR-DCM has requested throughout the project. Jim Gregson said that CAMA wetland impacts are a major consideration for NCDENR-DCM. lie also asked why the "Avoid Ponds" Alternative is being considered if the purpose and need is not being met because it would be impacted by the future shoreline before the design year. Beth responded that this alternative was an attempt at minimization for Section 106 impacts after the meeting with S1IPO. Clarence agreed that this was the main reason for looking at this alternative. Dennis asked if the 236-foot buffer was maintained between the future shoreline and the "Avoid Ponds" Alternative. Beth responded that the 23046ot buffer was considered. but it was violated out of necessity in attempting to minimize Section 106 impacts. She added that the buffer was used to determine when dunes would be needed with the "Avoid Ponds" Alternative. ,John Page said that CAMA wetlands are shown on the biotic communities color figures in the PSIS appendices and impacts to CAMA wetlands are listed in Table 4-25 on page 4-96 of the FE IS. He said that there are sonic CAMA wetlands in the ponds area. Cathy added that depending on the outconre of today's meeting, they may send someone to the project area to lake a closer look at the locations of CAMA wetlands. Brian Wrenn said that the Road North/Bridge South Alternative may not be pcrmitable based on high wetland impacts when there are other alternatives with lower wetland impacts. Bill Biddlecome referred to the COE's May 15, 2009 letter that states their position on wetland impacts issues. The COL? prefers the Phased Approach from the perspective of wetland Over a Century of Engineering Excellence too YEARS 0 Page 4 .little 29. 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge impacts, but realizes that the Road North/Bridge South Alternative is better from the perspective of Section 4(f) impacts. Clarence said that comments from the DOI and other agencies were not favorable towards the Phased Approach, so that is the main reason that the Road North/Bridge South Alternative was bein, revisited. Thayer Broili said that he has similar concerns with the "Avoid Ponds" Alternative as with the original Road North/Bridge South Alternative. Ron Sechler said that he shares USFWS' concerns related to the Road North/Bridee South Alternatives because EFI-I is affected by both of them. Ile also shares the COE's concerns about wetland impacts. David Cos said that the NCDENR - Wildlife Resources Commission abstained at the last LEDPA selection meeting and they may abstain again. Also, they will defer to the USFWS on which alternative meets their Refuge management gouls. Chris Militscher said that EPA concurs with the COE's May 15, 2009 letter. In addition, they have concerns about the Section 404 aspect of the increase in the magnitude of impactswith the Road North/Bridge South Alternative. Ile said that we already have a signed form fiom the Review Board that satisfies the process needs and we should move forward with the Review Board agreement. Pete Begjamin said that lie has many concerns with the revised Road North/Bridge South Alternative. fie said that it does not fully avoid the ponds, but he does not like the impacts on the ponds with either Road North/Bridge South alternative. lie is also concerned with beach nourishment with any alternative. The Road North/Bridge South alternatives would have adverse impacts on wildlife habitat in the Refuge. Also, no mitigation opportunities for the adverse impacts to the Refuge are available within the Refuge even if mitigation was an option. 1-Ic said these alternatives were not likely to be compatible, so they would not be permitable. Mike Brvant agreed that the Road North/Brid,,e South alternatives likely were not compatible. I le discussed his April 30 to FIIWA letter related to the project (see attached). The letter discussed the priorities of the Refuge management (i.e., "wildlife first"). Clarence said he had not seen this letter. Mike said it was addressed to Joint Sullivan. Clarence asked about the DOI continent related to Refuge access with the Pamlico Sound Bridge Corridor. Mike and Pete agreed that that issue was not as important as wildlife impacts with the Parallel Bridge Corridor alternatives. Mike said than he thought the DOI comment was hasicully lust pointing out that there would be Refuge access issues with the Pamlico Sound Bridge Corridor. Clarence said that the comment also referred to specific Refuge access issues such as access being lost to the Visitors Center. Also, he said that part of the reason for uver a cent, Engineering ioo VEAF.G Q? Page 5 .tune 29. 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge revisiting the Road North/Bridge South Alternative was to provide it future road at-grade to allow better Retiree access. Sara Winslow said that the high wetland impacts are her main concern with the Road North/Bridge South alternatives. Beth discussed why EI-1 WA and NCDOT are now proposing that the Road North/Bridge South Alternative is the LEDPA. She went through the six reasons contained in Section IV ofthc meeting handout. She said that PI-IWA and NCDOT were aware that some of the resource and regulatory agencies likely would not agree with this position; therefore, with that in mind, she also wanted to discuss the c-mail that Chris Militscher had sent to the Merger Team members on May 15. She said that PI IWA and NCDOT liked the proposal that Chris presented in the e- mail. Chris discussed his e-mail (see attached). He said that the Review Board made a decision in August 2007 and that none of the agencies officially challenged that decision, although they may have disagreed with the decision. He said that the ambiguity in the Section 404 regulations led EPA to defer to the COE and NCDENR on their decision on the LEDPA. He said that EPA was not willing to look at the Pamlico Sound Bridge Corridor again (having been determined by the Review Board to be not practicable), so he thinks we are limited to the Parallel Bridge Corridor. He said that the Review Board left the LEDPA open beyond Phase I because they felt that future conditions were too uncertain in the Refu,e to go beyond Phase I at this point. and he did not understand why the Metger Team felt that it had to go beyond what the Review Board decided by determining future phases now. He said that he does not doubt the quality of the future shoreline modeling that has been done for the project. but there is it "real deal of uncertainty in even the best models of future conditions for coastal barrier island areas like the Bonner Bridge project area. Therefore, it was EPA's opinion that it could be arbitrary and capricious to make decisions based on modeling thin included so much uncertainty. Chris said that he thought Phase I should be built, and then the rest of the project should be examined in more detail when future conditions are more known. This also would keep 171-I WA from committing a huge amount of money to a project with it substantial amount of future uncertainty. Ile discussed what EPA believes to be the false assumption that this approach would be considered segmentation. He said segmentation was acceptable when alternatives analyses were "too speculative to allow for productive decision making." He said an adaptive nwnagement plan was needed to assist with cooperative decision-making for future decisions related to the project, but he wants the Merger Team to go ahead and move forward in it cooperative manner based on the Review Board agreement. Beth discussed the August 2007 Review Board agreement. She said that the Merger Team agreed that the Bonner Bridgc needs to be replaced. The Review Board agreement said that the Pamlico Sound Bridge Con'idor is not practicable and that the Parallel Bridgc Corridor «ver a uenu Engineering IGO YEARS 0 frig 6 June 29. 2009 Minutes: May 2I, 2009 Merger Team (Meeting for Bonner Bridge includes several different alternatives which could be considered in the future when tuture conditions arc better known. Based on this. NCDOT agrees that specifics related to future phases could be decided on closer to when they will be built using an adaptive management suategy. Beth recommended that the team start with the previous Review Board agreement and add to it if needed. Chris added that all of the agencies involved should be included in the adaptive management process. I'haycr discussed adaptive management from the perspective of the NPS. I Ic said that it is virtually the opposite of the compatibility determination process because adaptive nianagemcn( will look at needs related to the future road, whereas compatibility only looks at Refuge concerts. Chris said we have to determine how the Refuge and the road can co-exist because neither can move. Ile said that possibly a memorandum of agreement was needed between those agencies whose primary concern was transportation issues and the environmental resource and regulatory agencies to allow the two to co-exist. He added that we probably cannot adequately plan for future worst-case scenarios a category 4 storm hitting the project area). Clarence said that the revised Road North/Bridge South Alternative was in part to respond to Refuge comments on the Phased Approac)l. He said that I-I-IWA's initial reaction is to agree with Chris' suggestion for how to move forward, but he asked Chris for further explanation of the segmentation issue. Chris said that he thought segmentation issue would not be a problem on this project because the administrative record includes Ihoiottgh documentation of the extensive research that has taken place related to the unpredictable future conditions in the project area. Also, multiple alternatives for the fill project were evaluated. Chris reiterated that he wants to move forward and thinks it would not be constructive to move backwards again. Clarence asked for other agency thoughts on this idea. Pete said that he thought the idea had merit. He said that DOI had said that Phase I oflhe Phased Approach was compatible and could be built. He said that USPWS has experience with adaptive management, but he was trying to decide if adaptive management was appropriate for this project. I-le wonders whether or not we could identify in the future a solution through the Refuge that is legal from the perspective of all of the agencies involved. Ile thinks we need more thanjusl the "hope" that we can find an appropriate future solution. Clarence asked whether or not the Phased Approach was legal from the USPWS' perspective. Pete and Mike responded that they had concerns with its compatibility and that building a bridge across Oregon Inlet to the north end of the Refuge would lock us in to a narrow choice of options (flat would have to continue through the Refuge. Pete also expressed concern that the Phased Approach would likely require future work outside of the easement, so it stay not actually be compatible. Clarence responded that the No-Action Alternative also would require work outside of the easement in the Refuge. Pete said that ifthe Merger Team decides to Over a Century of Engineering Excellence too ,An10 Page 7 June 29. 2009 Minutes: Nlav 21. 2009 Merges Team Meeting for Bonner Bridge support C'hris' option. the USFWS can go along with the team. but he does not think the team should think the problem is solved. Chris said he wants more information fioni the USFWS on what compatibility is. Mike quoted DOI regulations and admitted that they were "loose" in order to give him the utmost discretion to say "no" to conipntibility requests that were not in the best interest ofthe Refuge's mission. He said that he had less discretion to say "yes" to compatibility requests and that this is designed to keep the Refuge fool "dying it death by 1.000 cuts." The 1997 Act raised the bar on what is allowed within the Refuge. It defined activities that were allowed more clearly and gave less flexibility than previously in allowing activities that may not be compatible with the Refuge's mission. Chris noted that the DOI (lid not elevate the Phased Approach selection to the CBQ after tile ITAS. Clarence asked if the niecting attendees were ready to move forward with Phase I. Rence said that she was willing to go along with Chris' proposal, but we still need to address the adverse effects of Phase L She said rill adaptive management process for future phases would have to include determining the likely impacts to the Refuge's historic landscape as it result offuture phases. Thayer said that he would like to ieservejudgment on Chris' suggestion until after the meeting between the 1'l I WA and DOI attorneys next week. Mike agreed with this. Chris said that it was possible that the attorneys would have more questions than answers after their meeting. He added that he did not think that was what the Merger Process should be based on. and that legal challenges would still apply even if the Merger Team decides to move Iorward. Bill said that the Review Board agreement basically says what Chris is suggesting. I Ic said it seerns like the team is basically back to where we were two years a,o at the time of that agreement. tic is still agreeable to the Review Board agreement, but he would also listen to any suggested edits that any of the other agencies may have. He also understands the concern of the cons[ ruction of Phase I limiting future options. Chris said that no agency challenged the FCIS to CFQ. so we should move forward. Beth said that we could put a commitment to adaptive management for future phases in the ROD. Clarence said that based on today's discussions. lie understands that other agencies want flexibility with fimn'C phases, which is something that the FHWA thought the Road North/Bridge South Alternative increased. lie said that one of the main reasons for today's meeting was to discuss possible revisions to the Road North/Bridge South Alternative in response to previously expressed agency concerns. Beth noted that according to the Review Board agreement, the other Parallel Bridge Corridor alternatives are still being considered to allow flexibility with future phases. She also said that the team's final agreenicnt at today's niecting would be included in the ROD. Over a Century of Engineering Excellence FIIWA Talking Points Roads are not inherently incompatible with wildlife refuges. Refuges arc not "wilderness areas" that must be roadless. Thousands of miles of slate anti cotnuv roads provide access to and through wildlife refuges. The FWS itself maintains approximately 5,000 miles of roads and 300 bridges within the refuge system. Fl I WA administers S29 million of highway funds per year to help the FWS maintain and improve its roads. All of these roads are require( to be "compatible with the refuges' purpose. Pea Island National Wildlife Refuge was not roadless when it was created. At least it decade before the refuge was created, a ferry carried cars across Oregon Inlct. The official 1933 NC highway map shows a road running the length of tile refuge. The 1942 U.S. Coast and Geodetic Survoy map. Which was based on surveys conducted no later than 1933, also shows a road running the length of the rclugc. Various government documents also rclcrcncc a road in the 1930s through the future refuge area. Of the land that was condemned to create the Pea Island National Wildlile Refuge (PINWR), 2,70225 acres was taken expressly subject to the cxislind road. The road and refuge were not considered incompatible when the ret'uge was created. PINWR was acquired pursuant to the Migratory Bird Conservation Act of 1929, 45 Stat. 1222, which says: "rights-o1=way. casements and reservations are acceptable so long as they do not interfere with the use of the areas Ibr the conservation of migratory birds." See 16 U.S.C. 715c. Therefore, at the time the Secretary ofAgrictdturc determined that Pea Island was suitable to establish a rclugc, the existing road was not considered incompatible. If the road had been considered incompatible, the road itself would have been condenmed rather than taking the land subject to the road. Congress slid not consider the original bridge construction incompatible with PINWR. In 1961 Congress authorized DOI to contribute $500,000 towards the construction of Bonner Bridgc by NCDOT. `lo be maintained by the State as part of its public road system." 76 Stat. 909. Additional Federal funds were provided by the Bureau of Public Roads (FI I\V'A's predecessor agency), with the remainder from the State of North Carolina. The unusual financing of Bonner Bridge was explained in the accompanying Senate Report: "contrary to the practice in many other national park system areas, the road system within the Cape Hatteras National Seashore Recreation Area was constructed and is maintained at the sole expense of the State and that all the land now owned by the United States within the recreation area was donated by citizens Ofthe Slate and Others." S. Rep. 2153, Sept. 16; 1962. Congress passed this law in spite of a letter li-om the Secraary of DOI questioning whether the bridge would conflict with the preservation of those portions of the Seashore that had been designated for wildlife as opposed to recreation. Id. FIIWA recognizes that the FAN'S can impose reasonable regulations on the road. Various statements to the media about the Stales rights have been atu ibuted to NC officials. FI WA does not agree with the view that the Stale can move (hc road at will. FHWA believes (hat FI IWA and the FWS need to work together to reach a solution that will continuo to provide a sale public road across the rclugc while protecting the important rclugc resources. FI-I WA has an interest in ensuring the continued existence of road access because a public road has existed Ibr at least 80 years, it is currently relied upon by 2 million vehicles per year, and the road is part of the National Highway System. A 2007 decision by the 6'' Circuit (I3urlison v. U.S., 533 F.3d 419) held that because the reluge Act (toes not affirmatively express Congress's intent to preempt state common law, State common laws regarding the creation of casements apply. The court then found that the FWS has the power to regulate such casements in a "reasonable manner." Numerous uncertainties surround the issue ol'what legal rights, if any, the State may have. First, it is unclear ifthe public highway casement reserved from the refuge in 1938 was owned by NC, Dare County, or the general public. Thus it is unclear if the State's 1954 quit claim deed extinguished the easement by reservation. Second, the boundaries of all of the parcels that were acquired in 1938 to create the refuge extended only to the mean high water line. Until 1958, the State owned the area between mean high and low water lines all the way around the refuge. The State also owned the submerged Pamlico Sound lands adjacent to the refuge, and those adjacent Pamlico Sound islands and mudtlats that were not specifically acquiredin the condemnation. In 1958, the State donated most of these areas to the DOI, but the donation was subject to an express a right to build future roads as needed. And any lands outside of the t50 foot line as it existed in 1958 were retained and are still owned by the State. The compatibility requirement for roads is not new. The FWS has been required to stake compatibility determinations for all rights-of-way, casements, and road permits since the 1966 wildlife refuge organic Act. The 1997 refuge Act did not change the compatibility requirement for roads-this section of the refuge Act is, word for word, identical to what was enacted in 1966. Since 1966, the refuge Act has authorized the Secretary of Interior to "permit the use of, or grant casements in, over, across, upon, through, or under any areas within the System for purposes such as but not necessarily limited to, powerlines, telephone lines, canals, ditches, pipelines, and roads, including the construction, operation, and maintenance thereof, whenever he determines that such uses are compatible with the purposes for which these areas are established." See 16 U.S.C'.. 668dd(d)( I )(I3). When Rep. Young inu'oduced the 1997 refuge Act he noted "we have defined the term compatible use' by using the language the U.S. Fish and Wildlife Service incorporated into their operating regulations years ago. While a refuge manager will retain the power to determine what is a 'compatible use,' this definition should provide the guidance needed to make the proper decision." See Feb. 6, 1997 Congressional Record. The House Report on the 1997 Act similarly notes "There arc numerous existing rights-of-way on National Wildlife Refuge System lands for roads, oil and gas pipelines, electrical transmission, communication taicilitics, and other utilities. The Committee does not intend for this Act to in any way change, restrict, or eliminate these existing rights-of-way, whether established by casement or permit, or to grant the USFWS any authority that does not already exist to do so." HR 105-106 (1997) p.13. This point was also the subject ofa longer discussion when the House bill was presented: Mr. SAXTON. Mr. Speaker, the gentleman horn Florida [Mr. Goss] has brought some questions to my attention which I would like to discuss with the chairman of the committee at this time. I have a few questions I would like to address to the chairman abort the potential effects of'thc bill on the utility and other rigIns-ofway and related facilities within the Nation's wildlife refuges. Current law cxprcssly allows such rights-of- way when they are determined to be compatible with the purposes for which the refuge was established. In many cases electricity and other rights-of-way and related facilities provide additional valuable habitat for our Nation's wildlife. Current Fish and Wildlife Service regUlatiOn5 specify a 50-year permit term for rights-of-way for electrical transmission lines, recognizing that the siting process for such lines is lengthy, complex, and costly. H.R. 1420 requires that the Fish and Wildlife Service review the compatibility for all uses at least every 10 years. Does the gentleman envision this requirement as adversely impacting either existing rights-of-way or the Service's ability to grant tuture rights-of-Nvay across the refuge? Mr. YOUNG otAlaska. If the gentleman will yield, the enactment of H.R. 1420 should not impact these rights-of-way. As the gentleman has noted, rights-of way on refuges are granted by the Fish and Wildlife Service under provisions of the existing National Wildlife Refuge System Administration Act, provisions which are not amended by this bill. That act requires the Service to first determine that the proposed right-of-way is compatible with the purposes for which the refuge was established. This bill utilizes the same definitions of compatibility that the Service has used administratively for many years. [is enactment wi11 create no higher standard,tbr rights-of-nav them exist at present. [emphasis added] We are changing the process by which decisions are made, not the standard which is used to make them. The Fish and Wildlife Service accompanies rights-of-way permits with terms and conditions necessary to ensure that the right-of-way remains compatible. What world be examined under the 10-year review required by this bill is the compliance with the terms and conditions of the permit, not the existence of the right-of way. The Fish and Wildlife Service does this now. The only change would be in the process by which the review is conducted. There would be no adverse impacts on electrical or other rights-ofway through this review. Mr. SAXTON. 1 understand that the U.S. Fish and Wildlife Service was consulted on this issue and agrees with the gentleman's assessment. Is that correct'? Mr. YOUNG ofAlaska. The gentleman is absolutely correct. Mr. SAXTON. I thank the gentleman. June 3, 1997 Congressional Record. The FWS found previous road relocations to be compatible with PINWR's purposes. The road through PINWR was paved by the State 1951-52. In 1954, pursuant to an Act of Congress; DOI granted a perpetual road casement to the State. The casement rclorcnced the centerline of the road as built by the State. Many portions of the road have since been moved without a compatibility problem. In total, 74.34 acres -- nearly 50% -- of the 152.33 acre casement granted in 1954 is now in a different location. In 1963, 1967, 1988, and 1995, in coordination with DOI the NCDOT relocated portions of NC 12 within the Refugc as storms and erosion required. In 1989, the USFWS permitted NCDOT to construct a terminal groin on the refuge, outside the road right-of-way, to protect the roadway approaches and southern abutment of the Bonncr Bridgc. The 1981 PINWR master plan explained the refuge's prior and proposed politics regarding the road during this period: "Highway 12 would be maintained and moved when determined necessary by the N.C.D.O.T." The most recent relocation, in 1995, moved 3.3 miles ofthe road. This relocation was undertaken with a compatibility determination and a Finding ol'No Significant impact under NEPA by the FWS. The 1997 refuge Act said nothing about eliminating mitigation for road easements. The 1997 refuge Act did not do anything to change or eliminate the FWS' prior practice of using mitigation as a means to ensure the compatibility of road rights-of-way. The only mention of mitigation in the 1997 refuge Act is that the newly required comprehensive plan for each refuge should identily significant problems that may adversely effect the rclirge "and the actions necessary to correct or mitigate such problems-" 16 U.S.C. 668dd(e)(2)(E). FHWA has independent authority to grant an easement for the bridge replacement. 23 U.S.C. § 317 authorizes FI-IWA to assist State highway agencies in obtaining property rights in lands owned and administered by other federal agencies. See 23 U.S.C. § 317(x), (b) (authorizing FH WA to facilitate the transfer of "interests in land owned by the United States ... reasonably necessary for the right-of-way of any highway"). Section 317 is supplemented by Section 107(d), which directs the Secretaries of other agencies to cooperate with the Secretary of Transportation. FI-IWA's road easement authority dates to 1921, and there is nothing in the refuge Act that could be read to repeal 23 U.S.C. §§ 317 & 107 by implication. FWS' compatibility regulation allows most forms of mitigation for FHWA road easements. FH WA's road casement authority allows for the imposition of conditions that are reasonably necessary to protect the Federal land. FI-IWA interprets "conditions" to include a wide range of Mitigation measures. When the FWS revised its compatibility regulations in 2000, FHWA's road casement authority was addressed: The Federal Highway Administration stated "The proposal in the rule and policy to disallow mitigation for uses of refuge land that have not been determined to be compatible may conflict with the laws for Federal land transfer for acquisition of right of way by the FHWA as codified in 23 U.S.C. Section 107(d), Acquisition of Rights-of-Way-Interstate System, and Section 317, Appropriation for Highway Purposes of Lands or in Lands Owned by the United States. These laws establish the process through which the FHWA acquires land on the bchalfol'State Transportation departments from other Federal Agencies fbr highway improvements and construction." * * * * * It has been the practice of the Service to comply with 23 U.S.C. 107(4) and 317(a) and (b). This rule will change the process by which we prepare compatibility determinations for highway right-of= ways but it will not interfere with our ability to continue to comply with 23 U.S.C. 107(d) and 317(a) and (b). By way ofclarification, we are not precluding from the compatibility process all aspects ol'what is commonly thought of as mitigation. Certainly, any right-of=way applicant, including for roads or highways. could modify a proposed use through avoidance, minimization, and other steps (sec discussion of mitigation below.) What we are limiting here is the use of that aspect that is refen-cd to as compensatory mitigation. We still will cooperate by working with the Federal Highway Administration and States for redesign, etc. Another method than we can use to cooperate with the Federal HiLLInvoi: Adntinistrution. and where upprogriate accommodate their request is lhrou h erchmgec /br fee title or less than fee title interests in land cis provided in our polio at Part 342 Chapter- S Non-Purchase Acquisitions [emphasis added]. The criteria for exchanges are, (1) that the exchange be of benefit to the United States, and (2) that the value of the lands or interests in lands be approximately equal or that values may be equalized by the payment of cash by the grantor or by the United States. Exchanges arc a valuable method to acquire land or interests in land for Service programs and may be used to accommodate Federal Highway Administration projects. This rule does not change our policy on land or interests in land exchanges. We proposed to add, in paragraph (b) of 50 CFR 26.41, language that status we will not allow making proposed refuge uses compatible through replacement of lost habitat values or other compensation (sometimes referred to as "mitigation" or as a component of mitigation). We also proposed to delete the current paragraph (d) of 50 CFR25.44, which authorizes us to require "mitigation mcasures" within an casement area to "make the proposed use compatible" and to delete current paragraph (c) of 50 CFR 29.21-7, as it applies to the issuance of right-of-way permits, which authorizes us to require "mitigation measures" on-or off site to "make the proposed use compatible. " We want to clarity what is "mitigation" and what portion of "mitigation" we do not allow. The President's Council on Environmental Quality defined the tern "mitigation" in the National Environmental Policy Act regulations to include: "(a) Avoiding the impact altogether by not taking a certain action or parts of an action; (b) minimizing impacts by limiting the degree or magnitude of the action and its implementation; (c) rectifying the impact by repairing, rehabilitating, or restoring the affected environment; (d) reducing or climinatimg the impact over time by preservation and maintenance operations during the life of the action; and (c) compensating for the impact by rcplacina or providing substitute resources or environments." [40 CFR Part I508.20(a-e)]. The SCrViCC supports this deflllitlon ufmiligalion anti cimsidcrs the specific elements to represent the desirable sequence of steps in the mitigation planning process. [Flten we stuie in these regulations and policy that we will not allow compensarorv MitiLmlion to make a proposed relirge use cornpatihle ice are referring 01711. to element (e) oI mitigation as defined br the President's Council on En ironmerual Oualav. (emphasis added] * * * * * We have, therefore, amended and clarified our final policy and regulations to reflect the Committee's intent not to change. restrict, or eliminate existing right- ol' ways. The policy and regulations also address the unique circumstance presented by existing public highway right-of ways. In order to continue to serve the purpose for which a right-of-way was issued, public highways must, in certain circumstances, be expanded or realigned. We amended our policy and regulations to accommodate the reasonable need fix the minor expansion or realignment of existing public highway right-of-ways. We note that while the Congressional intent is that the Act itsell'not change, restrict, or eliminate existing right-of=ways, it is also dear that Congress did not after our authority to do so if warranted on compatibility or other grounds. 65 Fccl.Reg. 62469-70 (Oct. 18, 2000). FI-IWA hereby requests the FWS to apply its slated policies and work with FI-IWA to design a mitigation plan that will allow NCDOT to relocate the road in a manner that is compatible with PINWR's purposes. The FWS has the authority to implement EPA's proposed solution. At last week's Section 404 merger meeting, EPA proposed that the cooperating agencies negotiate an MOA allowing the bridge replacement portion of the project to go forward now, with a cooperative, adaptive plan for selecting and implementing tulure phases over the next 50 Years as coastal conditions dictate. EPA's proposal is consistent with Executive Order 13352 "Facilitation of Cooperative Conservation" (8/26/04), which directs DOI to work together with state and local governments to find solutions to problems. The proposal is also consistent with the "Eco-Logical" MOU between FI IWA, FWS, and other Federal resource agencies that encourages flexibility in the regulatory process and a watershed approach to designing mitigation measures. The FWS has the authority and has sufficient grounds to find the Bonner Bridgc replacement compatible with PINWR's purposes. The Bonner Bridge has been among the most structurally deficient bridges in the United Slates for well over a decade, and its replacement has been the subject of a protracted NEPA process that has studied 31 alternatives. The replacement bridge would provide the same number of traff is lanes as exists now, within several hundred feet of the current alignment. The replacement bridge would also reduce future dredging of Oregon Inlet and greatly improve navigational safety for boaters. FHWA is willing to work with the FWS and the NCDOT to identify and implement mCaSnres adequate to protect the refuge from harm. The Bonner Bridge replacement phase that would be authorized to proceed now under EPA's proposal entails relocating a small section of NC 12 within the refuge in order to bring the bridge down to grade and tic it in to the existing highway. NCDO'1' has identified several viable design options for which FWS input is needed to make a decision. The ucw casement area and the relinquished casement area would be generally equal in size. and would be much smaller in scope than the past NC 12 relocations that were lrnutd compatible by the FWS.