20110023_Information Letter_20090731

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? United States Department of the Interior
dNORTH CAROLTNA COASTAL PLAIN
NATIONAL WILDLIFE REFUGE COMPLEX
UNITED STATES FISH AND WILDLIFE SERVICE
708 North Highway 64 West
Post Office Box 1969
Manteo, NC 27954
Phone: [phone] FAX: [phone]
July 31, 2009
Beth Smyre
Project Planning Engineer
Project Development and Environmental Analysis
NC Department of Transportation
1548 Mail Service Center
Raleigh, NC 27699-1548
Dear Ms. Smyre:
40
This responds to your recent e-mail transmissions of June 5, June 24, and June 30, 2009,
which provided information regarding the new preferred alternative for replacement of
the Herbert C. Bonner Bridge (the Parallel Bridge/Pea Island Transportation Management
Plan Alternative). This alternative is to be the subject of a draft Supplement to the Final
Environmental Impact Statement (SFEIS), which is currently being prepared by the
Federal Highway Administration (FHwA) and the North Carolina Department of
Transportation (NCDOT). This is also in further regard to information contained in the
Merger Information Packet provided in advance of the May 21, 2009, interagency Merger
Team meeting. As stated in our June 25 e-mail to you, our goal in providing these
comments at this time is to ensure NCDOT and FHwA have as much information as we
can provide as early as possible in the process of preparing the draft SFEIS, in order to
assist you in moving project planning along expeditiously.
At the May 21 Merger Team meeting the idea of a modified Road North/Bridge South
(RN/BS) alternative was presented and discussed. The Merger Team decided not to vote
to identify this alternative as the Least Environmentally Damaging Practicable
Alternative (LEDPA), and instead decided on a different course of action; namely pursuit
of what is now called the Parallel Bridge/Pea Island Transportation Management Plan
(PB/PITMP) Alternative. Nonetheless, it is the view of the U.S. Fish and Wildlife
Service (Service) that the Merger Information Packet contained many incorrect
statements and findings that have the potential to improperly influence decision-making
as the process moves forward. As such, we feel it is important to provide our assessment
of the information contained in the Merger Information Packet, in order to avoid
unnecessary project delays. We feel it is particularly important to correct the information
contained in the Merger Information Packet because the path chosen at the May 21
Merger Team meeting leaves most decisions regarding the disposition of NC-12
unresolved until some later date, and the rationale applied by NCDOT and FHwA to the
RN/BS alternative could easily be applied to the other Parallel Bridge alternatives,
including the PB/PITMP alternative. The risk that NCDOT will rely on faulty
information in future planning is evident in that many of the erroneous assumptions
presented in the Merger Information Packet are repeated in the information attached to
the Merger Team meeting minutes distributed on June 30, 2009.
Comments Regarding the Merger Information Packet
The purpose of the May 21, 2009, Merger Team meeting was to attempt to reach
concurrence that the RN/BS Alternative should be identified as the LEDPA. This point
was arrived at as the result of a re-evaluation of the project alternatives by the NCDOT
and FHwA that was prompted by the comments received in response to the Final
Environmental Impact Statement (FEIS). Based on information contained in the Merger
Information Packet the FHwA and NCDOT cited 3 reasons for their decision to seek a
change in the LEDPA from the Phased Approach, as described in the FEIS, to a modified
version of the RN/BS alternative. First, they said the change in the LEDPA was the
culmination of their efforts to minimize the "extensive adverse impacts that were
identified by the resource agencies in their FEIS comments" related to the Phased
Approach Alternative. Second, they noted that the Service designated critical habitat for
wintering piping plover subsequent to publication of the FEIS. Third, they cited a review
of the history of land acquisition, deeds, right-of-way (ROW) permitting and road
development and maintenance as evidence that the road and the Pea Island National
Wildlife Refuge (Refuge) were "jointly planned," such that there is no need to restrict
construction of the road to the existing ROW.
We feel that many of the statements made in the Merger Information Packet are
misleading, inaccurate, or are based on an incomplete understanding of the Refuge and its
underlying laws, regulations, and policies that drive its management. These issues need
to be addressed so that future decision-making regarding this project is on a sound
footing. As such we offer the following comments regarding each of the three points
raised in the Merger Information Packet.
1. The RN/BS Alternative Minimizes Impacts to the Refuge and Its Resources
We do not concur. The incorrect conclusion that the RN/BS Alternative would minimize
impacts to the Refuge and its Resources is based on a number of smaller incorrect
conclusions and interpretations that must be corrected in order to fully understand the
flaws in the overall conclusion. First, in the first paragraph of section I.B.2 of the Merger
Information Packet it states that in our comments on the FEIS the Department of the
Interior "noted that the impacts [of the LEDPA] would be lessened with an at-grade
road." We did not say this. We said: "Currently, with NC-12 passing through the Refuge
at grade over its entire 11.8-mile length, the Refuge has a predominantly natural character
(in terms of both visual and acoustic qualities). As such, the existing road represents a
relatively small intrusion on the quality of the wildlife viewing and photography activities
of our many visitors. Similarly, while the existing road does adversely affect the wildlife
resources and ecological processes of the Refuge, the current configuration represents the
lowest possible level of such effects, while maintaining a paved transportation corridor
through the Refuge." This statement clearly refers to NC-12 as it currently exists and
does not address any of the Parallel Bridge alternatives except to imply that any
alignment or configuration other than that which currently exists would increase adverse
impacts to the Refuge and its resources.
The NCDOT and FHwA claim that the revised RN/BS Alternative ("Avoid Ponds
Alignment") "completely avoided intrusion into the impoundments" and "would not have
any significant impact on the wildlife features of the Refuge that could not be minimized
through a mitigation plan." These statements are false. While the Avoid Ponds
Alignment may not have directly affected the open water areas of the impoundments, it is
clear that several adverse impacts to the impoundments and Refuge would be likely to
result from this plan. Since it is not clear how this alternative was intended to be
implemented, the magnitude and character of the potential impacts are uncertain. For
instance, while it is clear that the road would be in very close proximity to the open water
areas of the impoundments, it is unclear how this would be achieved (e.g., bulkheading).
The method of construction and the means used to maintain separation between the road
and the water are important considerations in assessing the full effects of the plan on the
impoundments. That said, many adverse impacts are already easily discernable. For
example, the proximity of the road to the open water of the impoundments would
necessitate the removal of most or all of the shoreline vegetation that currently provides
valuable habitat and a buffer between the road and the impoundments. In addition to loss
of habitat, the loss of this buffer would likely increase disturbance of resting birds by
passing vehicles, increase the likelihood of collisions between birds and vehicles, and
increase the amount of debris and pollutants entering the impoundments from the
roadway. Beyond the impoundments, this alternative would require a massive amount of
perpetual dune construction and re-construction to protect the road from the ocean, which
would adversely impact the beach and dune communities within the Refuge. Finally, the
proposed alignment would result in the loss of over 50 acres of Refuge wetlands that
currently provide high quality waterfowl and wildlife habitat. We view all these as
significant impacts on the wildlife features of the Refuge and it is unlikely that these
impacts could be mitigated within the Refuge boundaries.
It is also necessary to clarify statements attributed to the Refuge's Comprehensive
Conservation Plan (CCP). On page 1 of the July 17, 2006, approved CCP for Pea Island
National Wildlife Refuge it notes:
"The Service designed the plan [CCP] as a working guide for the refuge's
management programs and actions over the next 15 years. However, with the
pending Herbert C. Bonner Bridge replacement project, the North Carolina
Department of Transportation proposes several alternatives, each affecting
future refuge management in significant ways. The "status quo" alternative in
this plan should not be interpreted in any way as a statement that the Service
prefers the Bonner Bridge or North Carolina Highway 12 remain where it is
currently located. The alternatives merely reflect planning strategies with the
road and bridge located in their current positions. The potential exists for the
refuge portion of the North Carolina Highway 12 to be relocated west of the
refuge in the Pamlico Sound as early as 2010. If this occurs, this comprehensive
conservation plan may require revision to reflect new methods of access that
would result if the North Carolina Department of Transportation chooses to
abandon its existing ROW through the refuge. The North Carolina Department
of Transportation has indicated that if it chooses to replace the bridge by
paralleling the existing alignment and using the existing ROW, it will request
permits for work outside the existing ROW, such as large-scale, repetitive beach
building and dune building over at least the next 50 years; and permits for many
miles of a major new ROW west of the existing ROW in an attempt to maintain
North Carolina Highway 12 for the life of the new bridge. Requests for large-
scale, long-term, repetitive beach building and dune building permits or for
major new ROW permits are not likely to be compatible. The Service would
work with federal, state, county and local officials, and other groups to identify
feasible public use access and management actions that are compatible with the
purposes for which the refuge was established."
Under the National Wildlife Refuge System Improvement Act of 1997 the management
hierarchy for goals, objectives, strategies, projects and management actions always must
put wildlife first requiring maintenance of the refuge's biological integrity, diversity, and
environmental health. The Service will provide opportunity for compatible wildlife-
dependent recreational uses because they are appropriate and legitimate and will be
encouraged.
The Merger Information Packet also contains misleading information regarding access to
the Refuge under the RN/BS alternative. For example, while indicating that retention of
the at-grade road through much of the Refuge would provide greater public access to
parts the Refuge and its facilities than the Phased Approach alternative, it fails to point
out that (according to the maps provided) it would eliminate the Visitor's Center.
2. Wintering Piping Plover Critical Habitat
The NCDOT and FHwA contend that removal of the terminal groin at the north end of
Pea Island (which they assume would occur if the Pamlico Sound Alternative were
selected) would result in adverse effects to wintering piping plover critical habitat. They
reason that removal of the groin would allow the inlet to migrate southward, resulting in a
loss of piping plover habitat. This is likely false. Piping plovers have evolved to thrive
in dynamic ocean front habitat characterized by erosion, accretion, and overwash. The
terminal groin actually disrupts these natural dynamic processes resulting in relatively
stable conditions that cause the quality of both wintering and breeding piping plover
habitat to degrade over time. So the groin has been detrimental to the overall quantity
and quality of piping plover habitat on Pea Island. Nonetheless, the north end of the
Island was designated as part of the Critical Habitat Unit that encompasses Oregon Inlet
primarily due to use by wintering piping plovers. The Unit, as described in the Final
Rule includes those lands that contain the primary constituent elements essential for
piping plover conservation from the southern end of Bodie Island to the north end of Pea
Island. The NCDOT/FHwA assessment of the effects of groin removal on piping plover
habitat is flawed because they fail to consider the effects of the action on the entire unit.
i
Assuming for the sake of argument that they are correct and Oregon inlet would migrate
south following removal of the groin, then Bodie Island would in all likelihood accrete as
Pea Island eroded, and because the migration process would in all likelihood create
overwash fans, flats and ephemeral pools on both sides of the inlet (rather than only on
the north side as is currently the case due to the stabilizing effect of the groin), the quality
of the habitat throughout the unit would improve. The expected result would be roughly
an equivalent amount of critical habitat of higher quality and more suitable breeding
habitat than currently exist. If the groin were removed and the U.S. Coast Guard and/or
Army Corps of Engineers determined that action was needed to stabilize/maintain the
navigation channel through the inlet, that action and its potential effects on piping plover
critical habitat and other natural resources would be assessed at the time a specific course
of action were identified and proposed.
The above analysis not withstanding, we must also point out that the effects of the
proposed project on wintering piping plover critical habitat were fully analyzed in our
July 10, 2008 Biological Opinion, in which we found that while the project would
adversely affect critical habitat, these effects would not rise to the level of "adverse
modification." No information has been presented that would alter that determination.
In short, there are no significant outstanding issues regarding this project's compliance
with the Endangered Species Act, and it would be inappropriate for anyone to state or
imply that the ESA was in any way responsible for any delays in this process. We further
note that the assumption regarding removal of the groin with implementation of the
Pamlico Sound alternative is an assumption thatFHwA/NCDOT have made and which
we have stated previously may not necessarily be the case. Also, we note that all the
above has been previously stated to the NCDOT and FHwA.
3. Information about the History of the Road and the Refuge/Seashore
Regarding the history of the Refuge and NC-12, FHwA/NCDOT correctly state that all
the documents they have found were provided to the Service on March 19, 2009. They
incorrectly state that "no comments or additional documents have been received" from
the Service. In fact, we have met with NCDOT and FHwA and discussed the matter over
the phone, as indicated in Appendix D of the above-referenced Merger Team Meeting
Minutes. In these meetings we have stated that the rights they read into or infer from
those documents do not exist. We have reviewed the subject documents as well as the
"FHwA Talking Points" included in Appendix D and find that the NCDOT cannot
demonstrate that it has a right to move its easement for NC-12 to any other location
within the Refuge. That right is not contained in any federal statute applicable to the
Refuge. It is not reserved in the judgments in condemnation which granted the United
States title to the Refuge lands. Nor do the concepts of "floating" or "rolling" easements
apply to a deeded linear road ROW. The language relating to road relocation in Cape
Hatteras National Seashore deeds is in no way applicable to the Refuge. In short, we are
not persuaded that the State of North Carolina possesses the right to relocate NC-12 as it
has publicly claimed.
This conclusion is corroborated by the fact that the State of North Carolina has never
before behaved as if it possessed a unilateral right to move the ROW corridor for NC-12.
In every instance in which an altered easement has been required for the road, the State
has sought and obtained either an easement under the 1951 Act of Congress or a ROW
permit under the National Wildlife Refuge System Administration Act. The position now
being advanced by the State is unprecedented, and it is without legal support.
Further, the FHwA has cited past instances in which the Service has granted permission
to relocate the ROW, each time finding that the relocation would not result in significant
environmental impacts, and that in some instances mitigation was provided to allow a
favorable compatibility determination and finding of no significant impact to be reached.
They fail to acknowledge that all those instances occurred prior to the passage of the
National Wildlife Refuge System Improvement Act of 1997. As we have repeatedly
stated, this Act fundamentally changed the standards by which the Service makes
compatibility determinations for ROW requests. Specifically, we cannot grant a ROW
for an activity that is not compatible with the purposes for.which the Refuge was
established (all the Parallel Bridge alternatives likely fall in this category), and mitigation
cannot be used to make an otherwise incompatible use compatible. Nothing about the
above-referenced history of the road and the Refuge alters these statutory realities.
Regardless of what the "joint planning" determination of FHwA may mean with regard.to
Section 4(f) of the Department of Transportation Act, it has no bearing on the
determinations we must make pursuant to the 1997 Refuge System Improvement Act.
While all laws must be administered with an eye toward common sense, and it is
incumbent on all of us to do our utmost to reconcile our various legal mandates in the
best interests of the public, in the end we must apply the law as written. As written,
compatibility is triggered if the activity will have more than minimal effect outside the
existing ROW (which likely applies to all the Parallel Bridge alternatives). As we have
consistently said for many years, the proposed Parallel Bridge alternatives identified to
date all appear likely to require work outside the existing ROW and are not likely to be
found compatible. Therefore, the "previously perceived need to strictly stay within the
existing easement" is not "an artificial and imprudent constraint" as stated in the Merger
Information Packet. It is a very real legal standard.
In recent conversations FHwA staff has asserted that compensatory mitigation may be
used to make the RN/BS Alternative compatible. To be clear, the Service can not allow
compensatory mitigation to make a proposed Refuge use compatible, with one exception
- for maintenance only within existing ROWS by replacement of lost habitat values
through compensatory mitigation to achieve a no net loss of quantity and quality of
habitat. Maintenance of an existing ROW includes minor expansion or minor
realignment to meet safety standards. Examples of minor expansion or minor
realignment include: expand the width of a road shoulder to reduce the angle of the slope;
expand the area for viewing on-coming traffic at an intersection; and realign a curved
section of a road to reduce the amount of curve in the road (50 CFR 29.41 (b) & (c) and
FWS Manual 603 FW 2.11 D). The proposed use of Refuge lands in the RN/BS
alternative clearly represents more than maintenance and more than a minor expansion or
minor realignment, and accordingly compensatory mitigation could not be factored into
the compatibility determination.
The FHwA has also raised the use of stipulations in order to make a proposed use
compatible. Stipulations in a compatibility determination are not a form of compensatory
mitigation or replacement of lost habitat values. If a use is not compatible as initially
proposed, it may be modified with stipulations that avoid or minimize potential adverse
impacts, making the use compatible. It is not the responsibility of the refuge manager to
develop a sufficient set of stipulations so as to make an otherwise not compatible
proposed use, compatible. If the use cannot be modified with stipulations sufficient to
ensure compatibility, the use cannot be allowed (FWS Manual 603 FW 2.12 A. (11) (a)).
It is highly unlikely that a set of stipulations could be devised that would make the
proposed uses contemplated in the RN/BS alternative compatible.
As stated above, it is our view that the proposed RN/BS Alternative is not likely to be
found compatible with the purposes for which the Refuge was established, and as such
could not be permitted in accordance with the 1997 Refuge System Improvement Act and
its implementing regulations. It is likely that the above findings also apply to the other
Parallel Bridge alternatives as most explicitly require extensive work outside the existing
ROW, and while the Phased Approach is intended to stay within the existing ROW, it is
our view (as stated in the October 28, 2008 letter from the Department of the Interior)
that it would also likely require extensive.work outside the ROW. We also note that the
Service was not alone in believing that the RN/BS Alternative was not permissible, as
most if not all of the Merger Team agencies expressed serious reservations about the
Alternative at the May 21 meeting to the extent that the question of whether to identify it
as the LEDPA was never even put to a vote.
Comments Re ag rding the PB/PITMP Alternative
As stated in the information provided with your June 24, 2009, e-mail the PB/PITMP
alternative: "proposes to proceed with the construction of Phase I of the Parallel Bridge
Corridor as soon as possible. Phase I of the Parallel Bridge Corridor consists of a parallel
replacement structure on the west side of the existing Bonner Bridge in the immediate
vicinity of Oregon Inlet." It is further stated: "The PB/PITMP Alternative would not
include any action at this time on Hatteras Island beyond the limits of Phase I. The study
and selection of future actions on Hatteras Island beyond the limits of Phase I would be
undertaken as outlined in a Partnership Agreement between the cooperating agencies.
The Partnership Agreement would address transportation management through 2060 with
a plan to monitor conditions on NC 12 and the affected environment, and modify
management actions so as to minimize the adverse impacts to the Refuge resources while
maintaining NC 12 as a viable transportation facility."
At the May 21, 2009 Merger Team meeting the Environment Protection Agency
representative presented this alternative as an adaptive management approach. Service
representatives agreed that this new alternative was consistent with the decision made by
the Merger Review Board at the August 30, 2007, Merger Review Board Meeting, to
proceed with the Phased Approach as the LEDPA. Though we never concurred with that
decision, we acknowledge that the decision to proceed with Phase I had been made,
elevated, and decided by the Merger Review Board in August 2007, and that there was no
need for the Merger Team to go through that process again. Accordingly, we have been
working with the FHwA and NCDOT to identify an alignment for the Phase I bridge
within the Refuge that would constitute a "minor" realignment of the existing ROW. We
are also assisting the transportation agencies in the process of applying for a permit to
retain the groin.
Though we have never concurred that any of the variations of the Phased Approach
should be identified as the LEDPA we agreed to explore the possibility of using adaptive
management to guide decisions regarding subsequent phases of the project, while noting
the limitations of adaptive management and expressing our reservations about its utility
in this situation. Immediately following the meeting we also provided the Department of
the Interior's Adaptive Management Guidelines to the members of the Merger Team to
help inform the development of the proposed Partnership Agreement.
An important component of an effective adaptive management plan is the establishment
of clear goals. In that regard, we note with concern the stated goal of the Partnership
Agreement to "...minimize the adverse impacts to the Refuge resources..." As noted
above, the existing road and groin are adversely affecting Refuge resources. These
structures are interrupting the natural processes through which the island and its habitat
are sustained. In fact, we have documented that the Refuge has lost substantial acreage
over the years, due at least in part to the fact that the road and its maintenance prevent
overwash of sand from the ocean to the sound, which retards the development of new
marsh and upland habitat. More work on refining the goal is needed. As a start, it should
include language establishing (1) standards, such as, (a) no net loss to the quantity and
quality of habitat necessary to meet the purpose of the Refuge and (b) maintenance of the
biological integrity, diversity and environmental health of the Refuge and (2) evaluation
criteria based on monitoring and assessment of the appropriate ecological and geological
processes and the status and trends of Refuge habitat, fish, wildlife, and plants.
Finding a workable means of meeting the current and future mobility needs of the Outer
Banks is obviously a very difficult challenge. We assure you that the Service is open to
using all the tools, flexibility, and creativity at our disposal in concert with the Merger
Team agencies and other stakeholders to meet this challenge. We remain committed to
working with all parties to address the need to replace the Bonner Bridge. We appreciate
the opportunity to provide the above comments, and hope that you will consider them as
you prepare the draft SFEIS.
Sincerely,
Mike Bryan
Refuge Manager
Field Supervisor
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