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Home My WebLink About20110023_Environmental Assessment_20100609 (3)Appendix B Revised Final Section 4(f) Evaluation Federal Highway Administration North Carolina Division Administrative Action Revised Final Section 4(f) Evaluation INC 12 Replacement of Herbert C. Bonner Bridge (Bridge No. 11) over Oregon Inlet Federal-Aid No. BRS-2358(15) NCDOT Project Definition: 32635 TIP Project No. B-2500 Dare County, North Carolina G?/ g /(q? Date ohn F. Sullivan III, P.E. Division Administrator Federal Highway Administration vo A ? zcf-?' Date o(Z-Gregory J. Thorpe, Ph.D. Branch Manager Project Development and Environmental Analysis Branch North Carolina Department of Transportation The following persons may be contacted for additional information concerning this document: John F. Sullivan 111, P.E. Federal Highway Administration 310 New Bern Avenue, Suite 410 Raleigh, North Carolina 27601 (919) 856-4346 Gregory J. Thorpe, Ph.D. Project Development and Environmental Analysis Branch North Carolina Department of Transportation 1548 Mail Service Center Raleigh, North Carolina 27699-1548 (919) 733-3141 The proposed project is the construction of a bridge to replace Herbert C. Bonner Bridge in Dare County, the demolition and removal of Bonner Bridge, and improvements to NC 12 between the community of Rodanthe and Oregon Inlet. This Revised Final Section 4(f) Evaluation revises the Final Section 4(t) Evaluation contained in the September 17, 2005, Final Environmental Impact Statement. B-1 Table of Contents SECTION 4(F) EVALUATION ....................................................................................................................3 Introduction ........................................................................................................................................................... .. 3 What Do We Propose? ..................................................................................................................... .. 3 What Work Has Been Completed Previously? ................................................................................ .. 3 What Progress Has Been Made Since the FEIS/Final Section 4(f) Evaluation? ............................. .. 4 What is the Purpose of This Revised Final Section 4(f) Evaluation? .............................................. .. 5 What is the New Preferred Alternative? .......................................................................................... .. 5 Is the Parallel Bridge Corridor with NC 12 Transportation Management Plan a Completely New Alternative? ...................................................................................................................................... .. 6 Identification of Section 4(f) Properties ................................................................................................................ .. 7 What Did the FEIS/Final Section 4(f) Evaluation Find? ................................................................. .. 7 What Has Changed? ......................................................................................................................... .. 7 Applicability of Section 4(f) to Properties within the Project Area ...................................................................... .. 7 What Did the FEIS/Final Section 4(f) Evaluation Find? ................................................................. .. 7 What Has Changed? ......................................................................................................................... .. 8 Constructive Use .............................................................................................................................. 16 Summary of Revised Section 4(f) "Use" Determinations ................................................................ 18 Avoidance Alternatives ......................................................................................................................................... 19 What Did the FEIS/Final Section 4(f) Evaluation Find? ................................................................. 20 What Has Changed? ......................................................................................................................... 20 Least Overall Harm Analysis ................................................................................................................................ 21 All Possible Planning to Minimize Harm ............................................................................................................. 27 Conclusion ............................................................................................................................................................ 34 Appendix A: FEIS/Final Section 4(f) Evaluation Comments Appendix B: Road/Pea Island National Wildlife Refuge/Cape Hatteras National Seashore Timeline Appendix C: Historic-Related Conceptual Design Modifications Appendix D: Merger Team Meeting Minutes Since FEIS Appendix E: New Preferred Alternative Appendix F: Draft Section 106 Programmatic Agreement Appendix G: Evaluation of the Pamlico Sound Bridge Corridor Alternative as a Feasible and Prudent Avoidance Alternative Under Section 4(f) of the Department of Transportation Act Appendix H: Draft Partnership Agreement Appendix L Phase I Hatteras Island Termini for Parallel Bridge Corridor Alternatives List of Tables Table 1: Section 4(f) Applicability (Use) from the FEIS/Final Section 4(f) Evaluation (September 17, 2008)..... 8 Table 2: Revised and New Section 4(f) "Use" Determinations .............................................................................. 8 Table 3: Revised Section 4(f) "Use" Determinations ............................................................................................ 19 Table 4: Total Highway Cost of the Alternatives Through 2060 .......................................................................... 26 Table 5: Phase I Estimated Construction Cost to Replace Bonner Bridge ............................................................ 27 B-2500 Revised Final Section 4(f) Evaluation Page 2 B-2 Section 4(f) Evaluation Introduction Section 4(f) of the Department of Transportation Act of 1966, as amended (49 U.S.C. 303 and 23 U.S.C. 138), states that the U.S. Department of Transportation (USDOT) may not approve the use of land from a significant publicly owned park, recreation area, or wildlife and waterfowl refuge, or any significant historic site, unless a determination is made that the project will have a de minimis impact or unless a determination is made that: 1. there is no feasible and prudent avoidance alternative, as defined in 23 CFR 774.17, to the use of land from the property; and 2. the action includes all possible planning, as defined in 23 CFR 774.17, to minimize harm to the property resulting from such use. If the Section 4(f) Evaluation concludes that there is no feasible and prudent avoidance alternative, then the USDOT may approve only the alternative that causes the least overall harm in light of the statute's preservation purpose. The analysis for a Section 4(f) Evaluation comprises the following steps: • identify properties in the study area that are protected by Section 4(f); • determine applicability (i.e., would any of the alternatives use Section 4(f) properties?); • if there is a use, identify any avoidance alternatives; and • if there are no avoidance alternatives, determine the overall least harm alternative. The Federal Highway Administration (FHWA) must comply with Section 4(f) for all projects funded with Federal-Aid Highway program funds (as this project is). FHWA issued a Final Environmental Impact Statement (FEIS) and Final Section 4(f) Evaluation on September 17, 2008. This document revises the Final Section 4(f) Evaluation. What Do We Propose? FHWA and the North Carolina Department of Transportation (NCDOT) propose to replace the Herbert C. Bonner Bridge across Oregon Inlet in Dare County. Bonner Bridge, built in 1962, is approaching the end of its reasonable service life and is structurally deficient. Bonner Bridge is a part of NC 12 and provides the only highway connection between Hatteras Island and Bodie Island. The replacement structure would serve the same function. The project also includes NC 12 between Oregon Inlet and the community of Rodanthe, an area that is at risk because of shoreline erosion and major storms. This project proposes to provide a long-term approach to minimizing that risk through 2060. What Work Has Been Completed Previously? In 1990, FHWA and NCDOT began studying replacement alternatives for Bonner Bridge (TIP No. B-2500) to address problems with deterioration of the reinforcing steel and concrete supporting structures, scour (erosive force of moving water) of a depth great enough to affect the bridge piles' ability to support the superstructure, and channel migration. In addition, the bridge's vulnerability to ship collision became apparent when a hopper dredge used to maintain Oregon Inlet's channel struck Bonner Bridge and demolished several spans. FHWA issued a Draft Environmental Impact Statement (DEIS) in November 1993. The DEIS suggested a single Preferred Alternative--the Parallel Bridge Corridor across Oregon Inlet. After the release of the DEIS, comments were received regarding the DEIS from the public and from Federal, state, and local agencies. A preliminary FEIS was prepared in 1996; however, it was never signed because formal consultation with the U.S. Fish & Wildlife Service (USFWS) under Section 7 of the Endangered Species Act was not completed. Because it had been more than seven years since completion of the DEIS, a re-evaluation was conducted in 2001 to determine if the preliminary FEIS remained a valid assessment of project impacts. A decision was made in 2001 to prepare a Supplemental DEIS. By this time, NC 12 had begun to be regularly threatened by shoreline erosion and overwash. Three areas on NC 12, or "hot spots," between Oregon Inlet and Rodanthe are especially B-2500 Revised Final Section 4Cf) Evaluation Page 3 B-3 vulnerable. To address these "hot spots", the study area was expanded south to encompass NC 12 to Rodanthe and new alternatives were developed that addressed these "hot spots". The SDEIS was completed and signed in September 2005. The SDEIS assessed five alternatives in two corridors, the Pamlico Sound Bridge Corridor and the Parallel Bridge Corridor. A proposal made during the comment period following the release of the SDEIS led to the development of two additional Parallel Bridge Corridor alternatives. These alternatives were assessed in the Supplement to the SDEIS (SSDEIS), which was issued in February 2007. The FEIS/Final Section 4(f) Evaluation (ncdot.org_/projects/bonnerbridgerepairs/newsupdates/4suplimental) identified the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge as the Preferred Alternative and addressed comments received on the SDEIS and SSDEIS. Substantial comments on the FEIS/Final Section 4(f) Evaluation were received from several jurisdictional agencies and from a non-governmental organization. The comments are included in Appendix A of this Revised Final Section 4(f) Evaluation. What Progress Has Been Made Since the FEIS/Final Section 4(f) Evaluation? In the year since publication of the FEIS/Final Section 4(f) Evaluation, FHWA and NCDOT have collected new information regarding the history of vehicular transportation across Bodie and Hatteras Islands, and the development of the Cape Hatteras National Seashore (Seashore) and the Pea Island National Wildlife Refuge (Refuge). This information was summarized in a reference timeline (Appendix B) and shared with the USFWS in March 2009 and all Merger Team representatives' in May 2009. The NCDOT and FHWA have been working with the State Historic Preservation Officer (SHPO), the Advisory Council for Historic Preservation (ACHP), and other consulting parties to modify conceptual project designs (Appendix C) to lessen effects to the Rodanthe Historic District and the Chicamacomico Life Saving Station. The parties also worked together to re-evaluate the effects on those historic properties as required under Section 106 of the National Historic Preservation Act. NCDOT and FHWA have also worked with Federal and State regulatory and resource agencies to address the comments and concerns expressed in response to the FEIS/Final Section 4(f) Evaluation. While the coordination and consultation often involved a single agency or several agencies with interest in a particular resource, meetings of the entire Merger Team of involved agencies took place in November 2008, March 2009, May 2009 and September 2009. Minutes of the Merger Team meetings that led to the new Preferred Alternative are located in Appendix D. The November 2008 Merger Team meeting focused on developing design parameters for Phase L This included a decision that the Oregon Inlet bridge terminus on Hatteras Island with the Parallel Bridge Corridor with Phased Approach (Phase I) Alternative should be extended to the south by approximately 2,000 feet (610 meters) in order to account for potential sound-side erosion at the north end of Hatteras Island. This decision was also applied to the Parallel Bridge Corridor with Nourishment and Parallel Bridge Corridor with Road North/Bridge South Alternatives. At the meeting, the USFWS and the National Marine Fisheries Service again expressed a preference for a 17.5 mile-long bridge through the Pamlico Sound instead of a parallel crossing of the Oregon Inlet. FHWA committed to reconsider the Pamlico Sound Bridge corridor, the results of which are ' Merger is a process to streamline the project development and permitting processes, agreed to by the USACE, NCDENR, FHWA and NCDOT and supported by other stakeholder agencies and local units of government. To this effect, the Merger process provides a forum for appropriate agency representatives to discuss and reach consensus on ways to facilitate meeting the regulatory requirements of Section 404 of the Clean Water Act during the NEPA/SEPA decision-making phase of transportation projects. The Merger Process allows agency representatives to work more efficiently (quicker and comprehensive evaluation and resolution of issues) by providing a common forum for them to discuss and find ways to comply with key elements of their agency's mission. The merger process helps to document how competing agency mandates are balanced during a shared decision-making process, which results in agency representatives reaching a "compromise based decision" to the regulatory and individual agency mandates. B-2500 Revised Final Section 4a) Evaluation Page 4 B-4 discussed later in this Revised Final Section 4(f) Evaluation. At the March 2009 meeting, NCDOT and FHWA presented information that had been gathered in response to some of the comments received on the FEIS/Final Section 4(f) Evaluation and FHWA committed to revise the Final Section 4(f) Evaluation. The Merger Team discussed whether the FEIS-Preferred Alternative should be changed but there was no consensus. The May 2009 meeting was to discuss selecting a new Preferred Alternative (possibly the Parallel Bridge Corridor with Road North/Bridge South Alternative). Additional alignment options developed for the Parallel Bridge Corridor with Road North/Bridge South Alternative by NCDOT to minimize harm to the historic features of the Refuge were considered but not adopted. Feedback from a majority of the Merger Team agencies at this Merger Meeting indicated a strong opinion that this alternative (including several possible design options in the vicinity of the ponds) should not be selected. Instead, the Merger Team decided that NCDOT should develop a modification of the FEIS/Final Section 4(f) Evaluation Preferred Alternative that was proposed by the U.S. Environmental Protection Agency (EPA) representative. This new alternative would replace the structurally deficient Bonner Bridge soon by combining the Phase I portion (the new bridge over Oregon Inlet) of the FEIS/Final Section 4(f) Evaluation Preferred Alternative with a deferred, fifty-year long decision-making process for the southernmost eleven miles of the project on Hatteras Island. These 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 (including a No Action Alternative), as required by the National Environmental Policy Act (NEPA). Decision-making was postponed for the later phases because while the shoreline erosion is a significant issue and new inlets are likely to form, exact locations and timing are unknown. Future major storms are likely to affect NC 12. Likewise, those future major storms are also likely to affect the context and quality of resources in the area as well. 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 Parallel Bridge Corridor with NC 12 Transportation Management Plan approach would allow parties to take advantage of likely future scientific and engineering advances, including new data, analysis, and technology. EPA's proposal became the new Preferred Alternative - the "Parallel Bridge Corridor with NC 12 Transportation Management Plan" Alternative that is the primary subject of this Revised Section 4(f) Evaluation. The proposed new Preferred Alternative described in Appendix E was discussed at the September 2009 meeting, along with possible measures to minimize and mitigate impacts to wetlands and submerged aquatic vegetation. There was agreement among the Merger Team representatives present that a new merger process concurrence form will be drafted. The concurrence form will recognize the Review Board's agreement to proceed with Phase I as soon as possible and will explain why the team agreed that decisions on the later phases of the project should be postponed. The Merger Team is scheduled to act on the concurrence form on October 15, 2009. What is the Purpose of This Revised Final Section 4(f) Evaluation? The purpose of this Revised Final Section 4(f) Evaluation is to: • change several determinations contained in the previous Final Section 4(f) Evaluation; • analyze a new Preferred Alternative that evolved through additional coordination and communication with Federal and State resource agencies; • analyze the feasibility and prudence of the Pamlico Sound Bridge Corridor alternatives; and • reconsider the least overall harm determination in light of the development of a new Preferred Alternative. FHWA is circulating this Revised Section 4(f) Evaluation to provide the resource agencies and the public an opportunity to review and comment. All comments received will be reviewed and taken into account prior to the approval of the use of any Section 4(f) property in the Record of Decision (ROD). What is the New Preferred Alternative? FHWA and NCDOT propose a new Preferred Alternative, described as the "Parallel Bridge Corridor with NC 12 Transportation Management Plan." This alternative would replace the current Herbert C. Bonner Bridge B-2500 Revised Final Section 4Cf) Evaluation Page 5 B-5 with a new bridge located to the west of the existing bridge (Phase I). The replacement bridge location in the Refuge is limited to the area necessary to safely construct and tie-in the new bridge to NC 12. 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. These 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 (including the No Action Alternative, as required by NEPA). A description of the new Preferred Alternative and maps are included in Appendix E. Is the Parallel Bridge Corridor with NC 12 Transportation Management Plan a Completely New Alternative? No. Phase I of the Parallel Bridge Corridor with NC 12 Transportation Management Plan is very similar to the other Parallel Bridge Corridor alternatives identified in the FEIS. On Bodie Island and over the Oregon Inlet, this alternative is essentially identical. For the remainder of this alternative, it is a structured variation of the "mixing and matching" of the five Parallel Bridge Corridor alternatives, with the decision-making for the later phases delayed until the future conditions of the barrier island and the transportation infrastructure are known. The mixing and matching concept, as stated in the FEIS (page 2-96) is explained as follows: "Although the NC 12 Maintenance alternatives are described and addressed in this FEIS as five separate alternatives, their components could be mixed and matched geographically along the length of NC 12 to create other variations. For example, NC 12 could be relocated on a road immediately south of a new Oregon Inlet bridge and relocated on a bridge in the area of the large ponds within the Refuge and at Rodanthe. NC 12 also could be protected by beach nourishment in the northern part of the Refuge and relocated on a bridge in the Rodanthe area. The Bridge South component of the Road NorthBridge South Alternative could be used in place of the Phased Approach alternatives' components at the south end of the Refuge and at Rodanthe. Other combinations are also possible. As such, the assessment of the five NC 12 Maintenance alternatives is representative of all possible combinations of their components. " The SSDEIS first introduced the "mixing and matching" concept of the five Parallel Bridge Corridor alternatives and the FEIS continued this concept. At a Sea Level Rise Peer Exchange workshop hosted by NCDOT and FHWA in May 2008, FHWA and NCDOT hosted a panel of national experts to provide sea-level rise information for the agencies to consider as the project developed. Objectives of the workshop included identifying recent scientific research on global climate change effects and to relate how that research can help inform the development of the Bonner Bridge Replacement Project. The outcome of the workshop was to identify analytical gaps, if any, between the NC 12 vulnerability analysis and shoreline erosion forecast conducted for the project compared to recent and relevant research on global climate change. Panelists generally agreed that the project's worst case analysis of shoreline erosion may account for a portion of sea level rise caused by future changes in climate. There was consensus that the current global sea level analytical models are not fully developed to predict local effects and that the wide range of future sea level rise information considered in the workshop illustrates the uncertainty associated with estimating future sea levels and shoreline locations. The new Preferred Alternative is consistent with the approach suggested by the panelists because it gives the project sponsors the opportunity to review and incorporate new analysis prior to commencement of each phase. While the Parallel Bridge with NC 12 Transportation Management Plan is not a completely new alternative, the alternative was not specifically evaluated under the FEIS/Final Section 4(f) Evaluation. Therefore, this Revised Final Section 4(f) Evaluation includes analysis of this alternative. B-2500 Revised Final Section 4Cf) Evaluation Page 6 B-6 Identification of Section 4(f) Properties What Did the FEIS/Final Section 4(f) Evaluation Find? Section 5.1 of the FEIS/Final Section 4(f) Evaluation identified the following Section 4(f) properties within the project area: • Cape Hatteras National Seashore (recreational area); • Pea Island National Wildlife Refuge (wildlife refuge); • Pea Island National Wildlife Refuge (historic property); • (former) Oregon Inlet US Coast Guard Station (historic property); • Rodanthe Historic District (historic property); and • Chicamacomico Life Saving Station (historic property). What Has Changed? No additional Section 4(f) properties have been identified in this Revised Final Section 4(f) Evaluation. Therefore, there are no changes to this section from the FEIS/Final Section 4(f) Evaluation (September 17, 2008). Applicability of Section 4(f) to Properties within the Project Area Section 4(f) applies when FHWA determines that an alternative would "use" one or more properties protected by Section 4(f). Except as set forth in 23 CFR 774.11 and 774.13, a use of Section 4(f) property occurs: 1. When land is permanently incorporated into a transportation facility; 2. When there is a temporary occupancy of land that is adverse in terms of the statute's preservation purpose as determined by the criteria in 23 CFR 774.13(d); or 3. When there is a constructive use of Section 4(f) property as determined by the criteria within 23 CFR 774.15. In the ensuing analysis, if a "use" determination is made, then the "use" determination means that the property is afforded Section 4(f) protection. What Did the FEIS/Final Section 4(f) Evaluation Find? Chapter 2 of the FEIS/Final Section 4(f) Evaluation identified the following detailed study alternatives: • Parallel Bridge Corridor o With Phased Approach/Rodanthe Bridge; o With All Bridge; o With Nourishment; o With Road North/Bridge South; and o With Phased Approach/Rodanthe Nourishment. • Pamlico Sound Bridge Corridor o With Curved Rodanthe Terminus; and o With Intersection Rodanthe Terminus. The FEIS/Final Section 4(f) Evaluation determined that each detailed study alternative used Section 4(f) property in the project area (Table 1), and therefore concluded that Section 4(f) was applicable to all alternatives. B-2500 Revised Final Section 4(f) Evaluation Page 7 B-7 Table l: Section 4 Applicability Use from the FEIS/Final Section 4 Evaluation September 17, 2008 Pamlico Sound Bridge Parallel Bridge Corridor Alternatives Corridor Alternatives Road Phased Phased Curved Intersection Section 4(f) Properties Nourishment North/ All Approach/ Approach/ Rodanthe Rodanthe Bridge Bridge Rodanthe Rodanthe South Bride Nourishment Terminus Terminus Cape Hatteras National Seashore Yes Yes Yes Yes Yes Yes Yes Pea Island National Wildlife Refuge Yes Yes Yes No Yes No No (former) Oregon Inlet US Coast Guard No No No No No No No Station (historic) Rodanthe Historic District (historic) No Yes Yes No No No No Chicamacomico Life Saving Station No Yes Yes No No No No (historic) What Has Changed? Table 1 indicates, for each alternative, whether the Final Section 4(f) Evaluation determined there would or would not be a "use" of each of the protected properties as defined by Section 4(f). Based on comments received on the FEIS/Final Section 4(f) Evaluation, newly obtained information, additional consultation and new analysis some of the determinations have changed. In Table 2, the determinations that have been revised are shaded and in a larger font size. In addition, determinations have been made for the new Preferred Alternative (Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative). The determinations for this new alternative are shown in bold, italics with a larger font size in Table 2. A comparison of Tables 1, 2 and 3 illustrates the changes that have been made to the Final Section 4(f) "use" determinations. Analysis supporting the revised and new determinations follows. Table 2: Revised and New Section 4 "Use" Determinations Parallel Bridge Corridor Alternatives Pamlico Sound Bridge Corridor Alternatives Road Phased Phased New: NC 12 Curved Intersection Nourishment North/ All Approach/ Approach/ Transportation Rodanthe Rodanthe Section 4(f) Bridge Bridge Rodanthe Rodanthe Management Terminus Terminus Properties South Bridge Nourishment Plan Cape Hatteras No No No No No No No No National Seashore Pea Island National Yes Yes Yes Yes Yes Yes No No Wildlife Refu e* (former) Oregon Inlet US Coast No No No No No No No No Guard Station Rodanthe Historic No No No No No No No No District Chicamacomico Life Saving Station NO NO NO No No No No No *Refuge as a historic property B-2500 Revised Final Section 4Cf) Evaluation Page 8 B-8 Cape Hatteras National Seashore As identified in Table 1, the FEIS/Final Section 4(f) Evaluation found that all alternatives would "use" the Seashore because the existing road would be relocated from its current alignment. However, newly obtained information shows that a public vehicular thoroughfare existed prior to the establishment of the Seashore, and the Seashore and road were concurrently and jointly planned and developed. FHWA and NCDOT have considered historical right-of-way information compiled after the FEIS/Final Section 4(f) Evaluation that is relevant to the impacts under Section 4(f). A timeline of related events can be found in Appendix B. FHWA and NCDOT acknowledge that while a large volume of historical material was found, not all documents that one would expect to have existed could be located. This information was provided to the Merger Team members in May 2009 (the National Park Service (NPS), as part of the U.S. Department of the Interior (USDOI), as the official with jurisdiction, is a member of the Merger Team). When there is such concurrent and joint planning and development between a Section 4(f) property and a transportation facility, the requirements of Section 4(f) do not apply to the subsequent use of the area for transportation. The applicable FHWA regulations regarding Section 4(f), 23 CFR 774.11(h)& (i) state: "(h) When a property formally reserved for a future transportation facility temporarily functions for park, recreation, or wildlife and waterfowl refuge purposes in the interim, the interim activity, regardless of duration, will not subject the property to Section 40. (i) 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 and concurrent or joint planning or development of the transportation facility and the Section 40 resource occurs, then any resulting impacts of the transportation facility will not be considered a use as defined in Sec. 774.17. Examples of such concurrent or joint planning or development include, but are not limited to: (1) Designation or donation of property for the specific purpose of such concurrent development by the entity with jurisdiction or ownership of the property for both the potential transportation facility and the Section 40 property; or (2) Designation, donation, planning, or development of property by two or more governmental agencies with jurisdiction for the potential transportation facility and the Section 40 property, in consultation with each other. " Concurrent and joint planning and development between the NPS (on behalf of the Seashore) and the State of North Carolina (on behalf of the transportation facility) is evident based on the following historical information The Seashore was authorized under an Act of Congress approved August 17, 1937 and established in 1953. The NPS was to oversee the Seashore and was empowered to accept lands, through gifts or donations, within the boundaries established by Congress. Since the NPS could only accept donations of land for the Seashore, the North Carolina General Assembly established (Chapter 257, Public Laws of North Carolina) the North Carolina Cape Hatteras National Seashore Commission (Commission) in 1939. This Commission was authorized, empowered and directed to acquire title in the name of the State of North Carolina for lands required for the Seashore. Once acquired by the Commission, the lands were to be transferred to the United States for the creation of the first National Seashore in history. The 1939 North Carolina Session Law provided that the transfer of lands acquired by North Carolina would be subject to several conditions. One of these conditions was that North Carolina would retain the right to operate any existing roadways and to establish other highways and roads as deemed necessary by the State of North Carolina. North Carolina also retained the right to condemn properties and levy taxes .2 The Commission proceeded with acquiring a number of parcels for eventual transfer to the U. S. Government 2 Chapter 257, 1939 North Carolina Session Law. B-2500 Revised Final Section 4(f) Evaluation Page 9 B-9 The Commission and the Governor entered into extensive conversations with the NPS regarding funding for the acquisition of land for the Seashore and which agency should be responsible for land acquisition. The NPS proposed to raise $618,000 in private donations and sought to have North Carolina match those funds. In June 1952, North Carolina agreed to provide the funding (an additional $200,000 was later sought and approved in 1958). A memorandum of agreement (MOA) was signed on July 15, 1952 between the Commission and the NPS'. The MOA resulted in the NPS now being responsible for land acquisition (rather than the Commission). Another aspect of the MOA was that the parties agreed that wherever possible, condemnation proceedings were to take place in Federal courts. Also as part of the MOA, the State conveyed lands to the United States (for example deeds dated December 22, 1952, July 10, 19534, and May 26, 1955). All of these deeds conveyed the property subject to the conditions and reservations recited in Chapter 257 of the North Carolina Public Law of 1939 and each contained the following language: ... upon the further condition that the State ofNorth Carolina and its subdivisions expressly retain title to and control of all public roads and highways now laid out or established over and upon the said lands, and the further right to lay out and establish over and upon said lands such other highways and roads as shall be deemed necessary by the State ofNorth Carolina and political subdivisions thereof and to such end the said land shall be subject to condemnation proceedings in the same manner and to the same extent as if said lands were privately owned. " In addition to the lands referenced above, on May 20, 1954, the State granted a Quitclaim deed to the United States for all interest that it had on the Refuge (also part of the Seashore), except a previously granted 100 foot permanent easement for right-of-way to operate and maintain the recently constructed road6 (the newly built road was completed on July 23, 1954). Some time after these conveyances, the United States realized that it had failed to acquire all of the lands within the boundaries designated as the Seashore. Specifically, the lands located between the low and high tide water lines as well as submerged land in the Oregon Inlet and several islands all of which belonged to North Carolina 7. Therefore, by deed dated August 7, 19588, North Carolina conveyed these lands to the United States and again expressly reserved the right to operate and maintain the roadway as the State deemed necessary: "... [T]he State ofNorth Carolina and its subdivisions expressly retain title to and control ofall public roads and highways now laid out or established over and upon said lands, and the further right to lay out and establish over and upon said lands such other highways and roads as shall be deemed necessary by the State of North Carolina... " The parties also recognized that erosion was a concern. Therefore, the Deed also provided that in the event that the parties were unable to determine the original markers due to a shift in the original lands conveyed, it was their intent that the land belong to the United States for the purposes of operating the Seashore. Therefore, it is evident that while assembling properties to be incorporated into the Seashore, the State of North Carolina and the U.S. Government concurrently and jointly planned on future transportation uses within the Seashore. Regarding transportation, prior to the creation of the Seashore, the only means of transportation between villages on Bodie Island and Hatteras Island was via a tug and barge service across Oregon Inlet (privately 3 "The Creation and Establishment of the Cape Hatteras National Seashore (NPS 2007), p. 102. 4 Deed Book 47, Page 481, Dare County. 5 Deed Book 61, Page 438, Dare County. 6 Quitclaim deed dated May 20, 1954 between the State Highway and Public Works Commission and the United States of America. ' For a more detailed description of the lands, see letter from USDOI dated April 23, 1958. 8 Deed Book 79, Page 548, Dare County. B-2500 Revised Final Section 4Cf) Evaluation Page 10 B-10 operated by Captain J.B. Tillet since the 1920s). Once across the inlet, motorist traveled Hatteras Island via sand pathways. By 1934, the North Carolina Highway Commission had begun to subsidize Captain Tillet's Ferry Service9. In 1938, the North Carolina State Highway and Public Works Commission (in conjunction with the Federal Works Agency Public Roads Administration) published a map of Dare County which depicts an "unimproved road" extending from Bodie Island to Rodanthe and points further south. A note on this map states ""Off-road culture not shown. Map includes only official roads and important suburban entrance roads not subject to public maintenance." (source: North Carolina State Archives, "Dare County, North Carolina (State Highway and Public Works Commission), 1938"). In the late 1940s, paved roads were constructed to link villages on Hatteras Island. In 1952, a paved road was constructed through Hatteras Island to the village of Hatteras. During the establishment of the Seashore, the State of North Carolina and the NPS coordinated and collaborated on providing transportation infrastructure within the Seashore. As early as May 1953, the state-contracted operator of a two-car ferry at Hatteras Inlet opened a toll ferry with improved facilities to carry several cars. The major problem was the bottleneck at Oregon Inlet where a fast-growing volume of visitors quickly overran the existing state ferry operation. To alleviate the bottleneck, the NPS contacted the Department of Defense to secure the service of a surplus Landing Craft Utility (LCU), a WWII-era landing craft, for use as a civilian ferry. The Navy agreed and in April 1953, it provided an LCU to the North Carolina State Highway Department for use at Oregon Inlet. The new ferry began service on May 1, 1953. Shortly after opening, this new ferry also proved inadequate to meet increased need. Two more ferries were thus obtained through the help of the NPS and put to work by the summer of 1954 (these LCUs were subsequently christened in honor of North Carolina governors William B. Umstead and R. Gregg Cherry, and NPS Director Conrad L. Wirth).'o The NPS had also undertaken a campaign referred to as "Mission 66." "Mission 66" began in the mid- to late- 1950s and was a project to update NPS facilities by 1966, the 50'11 Anniversary of the NPS. Construction of modern roads was a key element of the program. A specific briefing paper was prepared for Mission 66 as it applied to the Seashore and the Refuge. The briefing paper spoke of the current road system and referred to the State's plan to have a highway system throughout the length of the entire Outer Banks. The paper also referenced the State's "optimistic Plan" for a bridge to span Oregon Inlet. As a result of the increase in visitors and a desire to draw more people to the Seashore and the Refuge, in 1962 the state began construction of a bridge over Oregon Inlet with the help of a $500,000 appropriation from Congress". This $500,000 contribution from the NPS was from an appropriation from Congress under the "Mission 66" program. As the result of a severe storm in March 1962, a portion of NC 12 on the Refuge washed away. North Carolina coordinated with the USDOI to relocate the road and on October 1, 1963, the United States conveyed a Deed of Easement to the State for the relocated portion of NC 1212. The road relocation was completed on August 8, 1969. In 1963, ferry service ceased with the opening of the Herbert C. Bonner Bridge over Oregon Inlet. In addition to the funding provided by the NPS, the State coordinated the construction of the bridge with the NPS" 9 Pea Island National Wildlife Refuge, Comprehensive Conservation Plan, page 7. 'o "The Creation and Establishment of Cape Hatteras National Seashore" (NPS, 2007) pp. 131-132 " Public Law 87-799, 10/11/62, Congress authorized the Secretary of the Interior to spend $500,000 toward the construction of a bridge across Oregon Inlet. This was part of the NPS Mission 66 Restoration Program. 12 Deed Book 116, Page 201, Dare County, North Carolina. 13 USDOI, NPS Special Use Permit No. CAHA-3-63 dated 7/31/83. B-2500 Revised Final Section 4(f) Evaluation Page 11 B-11 From 1966 to present North Carolina has coordinated with the USFWS on multiple occasions to relocate or rehabilitate sections of the road through the Refuge portion of the Seashore. The roadway has been relocated outside of the original 100 foot easement location on at least four occasions with the consent and coordination of the USFWS. Even the NPS (Director Wirth) acknowledged that "...North Carolina was responsible for protecting its roads through the park and that meant going beyond the basic right-of-way... "14 According to "The Creation and Establishment of Cape Hatteras National Seashore" (NPS, 2007), there were numerous other instances where the NPS acknowledged the need for, and planned for, transportation infrastructure within the Seashore. Conclusion After consideration of the facts discussed above and in Appendix B, the history demonstrates that the Federal and State governments preserved the Seashore on Bodie Island and Hatteras Island with an understanding that vehicular passage would be accommodated; and that the vehicular passage has not been fixed to one location. Rather, the vehicular passage has evolved in response to advances in highway construction and in response to the forces of nature. Further, the history indicates that the Seashore and the transportation facility were concurrently and jointly planned and developed by the Federal and State governments working together to preserve the land for wildlife while maintaining a means for safe and efficient vehicular transportation. In consideration of this substantial history of concurrent and joint planning and development for the co-existence of the Seashore and the roadway, it is FHWA's revised determination that Section 40 is not applicable to the Seashore, as the impacts resulting from relocating NC 12 from its current alignment through the Seashore would not be considered a use as defined in 23 CFR 774.17. This determination does not mean that the replacement project will not be designed to minimize impacts to the Seashore, it simply means that FHWA is not required to make a specific Section 4(f) approval for use prior to approving the project. FHWA and NCDOT will continue to consult and coordinate with the NPS throughout the final design engineering process in order ensure that all harm to the Seashore is minimized and mitigated. A draft Partnership Agreement that would guide this process through 2060 is included in Appendix H. Pea Island National Wildlife Refuge (as a Refuge) As identified in Table 1, the FEIS/Final Section 4(f) Evaluation found that all Pamlico Sound Bridge Corridor alternatives and all Parallel Bridge Corridor alternatives, except the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative, would "use" the Refuge because the existing road would be relocated from its current alignment. However, newly obtained information shows that a public vehicular thoroughfare existed prior to establishment of the Refuge and the Refuge and road were concurrently and jointly planned and developed. FHWA and NCDOT have considered historical right-of-way information compiled after the FEIS/Final Section 4(f) Evaluation was published that is relevant to the impacts under Section 4(f). A timeline of related events can be found in Appendix B. FHWA and NCDOT acknowledge that while a large volume of historical material was found, not all documents that one would expect to have existed could be located. In March 2009, FHWA and NCDOT met with the USFWS and provided the information in Appendix B to the USFWS for comment. This information was also provided to the Merger Team members in May 2009. When there is such concurrent or joint planning or development between a Section 4(f) property and a transportation facility, the requirements of Section 4(f) do not apply to the subsequent use of the area for transportation. Concurrent or joint planning and development between the transportation facility and the Refuge is evident based on the following historical information. Located on one of North Carolina's barrier islands, the Refuge was established by Executive Order 7864 on Apri18, 1938, as a refuge and breeding ground for migratory birds and other wildlife. Presidential Proclamation 2284 closed a 25,700-acre area encompassing the Refuge and a portion of the Pamlico Sound west of and adjacent to the Refuge to migratory bird hunting. The Refuge falls within the geographical boundaries of the Seashore. While both entities fall under the purview of the USDOI, the Seashore is managed by the NPS, while 14 "The Creation and Establishment of Cape Hatteras National Seashore" (NPS, 2007). B-2500 Revised Final Section 4(f) Evaluation Page 12 B-12 the Refuge is managed by the USFWS pursuant to a Memorandum of Understanding with the NPS. The Refuge originally covered 5,915 acres of land. Over time, that area has been reduced by erosion to approximately 5,000 15 acres Prior to the creation of the Refuge, residents lived in the villages to the south of the Refuge. The only means of transportation to these villages was via a tug and barge service across Oregon Inlet that had been privately operated by Captain J.B. Tillet since the 1920s. Once across the inlet, motorist traveled along Hatteras Island via sand pathways 16 By 1934, the North Carolina Highway Commission had begun to subsidize Captain Tillet's Ferry Services'. In 1938, the US Secretary of Agriculture acquired the land for the Refuge through condemnation actions 18. These acquisitions did not include existing public highways and public utility easements across the island19. By this time, the North Carolina State Highway and Public Works Commission (in conjunction with the Federal Works Agency Public Roads Commission) published a map of Dare County which depicts an "unimproved road" extending from Bodie Island to Rodanthe and points further south. A note on this map states ""Off-road culture not shown. Map includes only official roads and important suburban entrance roads not subject to public maintenance." (source: North Carolina State Archives, "Dare County, North Carolina (State Highway and Public Works Commission, 1938"). North Carolina had begun to provide full reimbursement to Captain Tillet as early as 1942 for the Ferry Service, thereby eliminating the need for residents to pay a toll to cross Oregon Inlet20. By 1950, Captain Tillet had sold his ferry business to the State of North Carolina. During this same time period, the State had begun plans to construct a hard surface road in place of the sand roadway that traversed the Refuge. Toward this end, Congress passed Public Law 229 on October 29, 1951, that authorized the Secretary of the Interior: "...to convey to the State ofNorth Carolina a permanent easement for the construction of a public road (together with rights for such other uses as may be customary or necessary in the State ofNorth Carolina in connection with the construction or operation of such a road) through the Pea Island National Wildlife Refuge in Dare County, North Carolina, and to accept in return therefore the conveyance of any rights-of-way, easements, or other rights in or claims to land owned by the State ofNorth Carolina not needed for use in the construction or operation ofsuch road. "2' On May 20, 1954, the State granted a Quitclaim deed to the United States for all interest that it had on the Refuge, except a previously granted 100 foot permanent easement for right-of-way to operate and maintain the recently constructed road 22 (the newly built road was completed on July 23, 1954). On July 21, 1954, the USDOI conveyed a permanent easement in two parcels of land for the construction, operations, and maintenance of a public road across the Refuge. The easement to the State described a parcel of land as a strip of land measuring 100 feet wide, being 50 feet on both sides of a referenced center line. The easement also stated that nothing within the document was to limit or impair the right of the United States to continue to use the property for its intended purposes "not inconsistent with the construction, operation, and maintenance of a public highway thereon .,,2' The easement also provided for the construction, operation, and maintenance of a parking area and facilities for a ferry landing to be used in connection with the public road. 15 Pea Island National Wildlife Refuge, Comprehensive Conservation Plan, Supra. 16 Pea Island National Wildlife Refuge, Comprehensive Conservation Plan, Supra. Pea Island National Wildlife Refuge, Comprehensive Conservation Plan, Supra. 1s Deed Book 19, Page 451, Dare County, North Carolina; Deed Book 21, Page 81, Dare County, North Carolina. 19 Id. 20 pea Island National Wildlife Refuge, Comprehensive Conservation Plan, Supra. 21 65 Stat. 662 (October 29, 1951) 22 Quitclaim deed dated May 20, 1954 between the State Highway and Public Works Commission and the United States of America. 23 Deed Book 56, Page 208, Dare County, North Carolina. B-2500 Revised Final Section 4(f) Evaluation Page 13 B-13 As part of the creation of the Seashore, the United States then realized that it had failed to acquire all of the lands within the boundaries designated as the Seashore (including the Refuge area). Specifically, the lands located between the low and high tide water lines as well as submerged land in the Oregon Inlet and several islands all of which belonged to North Carolina 24. Therefore, by deed dated August 7, 1958, North Carolina conveyed these lands to the United States and again expressly reserved the right to operate and maintain the roadway as the State deemed necessary :21 "... [T]he State ofNorth Carolina and its subdivisions expressly retain title to and control ofall public roads and highways now laid out or established over and upon said lands, and the further right to lay out and establish over and upon said lands such other highways and roads as shall be deemed necessary by the State of North Carolina... " The State of North Carolina and the USDOI coordinated and collaborated on providing transportation infrastructure within the Refuge (as part of the Seashore). Relevant historical information describing this coordination and collaboration is described in more detail in the analysis for the Seashore (previous section) and is not repeated here. From 1966 to the present, North Carolina has coordinated with the USFWS on multiple occations to relocate or rehabilitate sections of the road through the Refuge. The roadway has been relocated outside of the original 100 foot easement location on at least four occasions (Appendix B) with the consent and coordination of the USFWS. The approximate length of these four road relocations is six miles. This represents approximately half of the eleven mile distance NC 12 traverses within the Pea Island National Wildlife Refuge. According to "The Creation and Establishment of Cape Hatteras National Seashore" (NPS, 2007), there were numerous other instances where the USDOI acknowledged the need for, and planned for, transportation infrastructure within the Refuge (as part of the Seashore). Even the NPS (Director Wirth) acknowledged that "...North Carolina was responsible for protecting its roads through the park and that meant going beyond the basic right-of-way... "26 Conclusion After consideration of the facts discussed above and based on information located in Appendix B, the history demonstrates that the Federal and State governments preserved the Hatteras Island area with an understanding that vehicular passage would be accommodated, and that the vehicular passage has not been fixed to one location. Rather, the vehicular passage has evolved in response to advances in highway construction and in response to the forces of nature. Further, the history indicates that the Refuge, transportation facility and existing Bonner Bridge were concurrently and jointly planned and developed by the Federal and State governments working together to preserve the land for wildlife while maintaining a means for safe and efficient vehicular transportation. In consideration of this substantial history of concurrent and joint planning and development for the co-existence of the Refuge and the roadway, it is FHWA's revised determination that Section 40 is not applicable to the Refuge (as a refuge), as the impacts resulting from relocating NC 12 from its current alignment through the Refuge would not be considered a use as defined in 23 CFR 774.17. This determination does not mean that the replacement project will not be designed to minimize impacts to the Refuge, it simply means that FHWA is not required to make a specific Section 4(f) approval for use prior to approving the project. The USFWS has expressed a concern that FHWA's determination regarding Section 4(f) applicability to the Refuge (as a refuge) should not be read to absolve NCDOT from complying with all other applicable federal environmental laws. FHWA agrees with the USFWS in this regard. The determination only applies to FHWA's Section 4(f) approval. FHWA and NCDOT will continue to consult and coordinate with the USFWS throughout the final design engineering process in order ensure that all harm to the Refuge is minimized and 24 "The Creation and Establishment of Cape Hatteras National Seashore" (NPS, 2007). 2s Deed Book 79, Page 548, Dare County, North Carolina. 26 "The Creation and Establishment of Cape Hatteras National Seashore" (NPS, 2007). B-2500 Revised Final Section 4(f) Evaluation Page 14 B-14 mitigated. A draft Partnership Agreement that would guide this process through 2060 is included in Appendix H. Pea Island National Wildlife Refuge (as a Historic Property) The FEIS/Final Section 4(f) Evaluation found there would be neither a permanent incorporation of land from the Refuge (as a historic property) into a transportation facility nor a temporary occupancy of land that is adverse in terms of the statute's preservation purpose for the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative. However, FHWA has revised its constructive use analysis for this property, which resulted in a determination that the alternative would use the Pea Island National Wildlife Refuge (as a historic property). The constructive use analysis is located later in this Revised Final Section 4(f) Evaluation. NCDOT has coordinated with, and continues to coordinate with the USFWS regarding the location of Phase I of the Parallel Corridor with NC 12 Transportation Management Plan Alternative. This alternative would require the use of approximately 3.08 acres of the Pea Island National Wildlife Refuge (as a historic property) for Phase L This use is depicted in Appendix E. For the later phases of the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative, additional use of the Pea Island National Wildlife Refuge (as a historic property) could be necessary for some or all alternative actions. Any such additional use would be assessed under Section 4(f) prior to approving the future action. The analysis would be based upon the actual future shoreline conditions as they exist in the future. Additional information about the assessment of future impacts caused by future actions in the vicinity of the historic Pea Island National Wildlife Refuge property is included in the draft Section 106 Programmatic Agreement located in Appendix F. (former) Oregon Inlet US Coast Guard Station The use determinations in the Final Section 4(f) Evaluation for the historic (former) Oregon Inlet US Coast Guard Station property have not changed. None of the alternatives would use this property. Phase I of the new Preferred Alternative (Parallel Bridge Corridor with NC 12 Transportation Management Plan) would also avoid using the historic (former) Oregon Inlet US Coast Guard Station. There would be no permanent incorporation of property, as depicted in the conceptual design drawing for Phase I included in Appendix E. As depicted, it is currently estimated that approximately 7.04 acres of the property would be temporarily needed for construction staging. The Section 4(f) regulations (23 CFR 771.13(d)) provide that such temporary occupancies are not considered a "use" of property under Section 4(f) when "(1) the duration would be temporary and there would be no change in ownership of the land (2) the scope of work would be minor (3) no permanent adverse physical impacts are anticipated and there would be no interference with the protected activities, features, or attributes of the property (4) the land would be fully restored and (5) the official with jurisdiction over the Section 40 resource agrees with the above conditions ". Because all five conditions would be satisfied, the temporary occupancy of the portion of the historic (former) Oregon Inlet US Coast Guard Station depicted in Appendix E is not considered a use of Section 4(f) property. Additional documentation concerning this property and the Preferred Alternative is included in the draft Section 106 Programmatic Agreement located in Appendix F. Later phases of the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative would not use the (former) Oregon Inlet US Coast Guard Station because this property is located adjacent to Phase I. Rodanthe Historic District and Chicamacomico Life Saving Station The use determinations in the Final Section 4(f) Evaluation for the Rodanthe Historic District and Chicamacomico Life Saving Station properties have changed for the Parallel Bridge Corridor with Road North/Bridge South and All Bridge Alternatives. The use determinations for the other Parallel Bridge Corridor alternatives have not changed. NCDOT and FHWA modified the conceptual designs for the Parallel Bridge Corridor with Phased Approach/ Rodanthe Bridge, Parallel Bridge Corridor with Road North/ Bridge South, and Parallel Bridge Corridor with All Bridge Alternatives, which moved the southern terminus of all Parallel Bridge Corridor bridging alternatives outside the historic district. These modifications were made due to comments received on the FEIS/Final Section 4(f) Evaluation explained below in the "Constructive Use" section. Additional information is located in Appendix C. After re-initiating consultation with the SHPO, the ACHP and B-2500 Revised Final Section 4(f) Evaluation Page 15 B-15 consulting parties to present these modifications, a determination of "no adverse effect" was concluded for all of the Parallel Bridge Corridor bridging alternatives on the Rodanthe Historic District and the Chicamacomico Life Saving Station. Therefore, none of the Parallel Bridge Corridor alternatives would use these properties. Phase I of the new preferred Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative would also avoid using the Rodanthe Historic District and Chicamacomico Life Saving Station properties. However, a use of the Rodanthe Historic District and Chicamacomico Life Saving Station could be necessary for some or all alternative actions that may be evaluated in the future for the later phases of the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative. Any such proposed use would be assessed under Section 4(f) (as well as all other applicable environmental laws) prior to FHWA approval of the future action. The analysis would be based on the future shoreline and historic property conditions as they exist in the future. Additional information about the assessment of future impacts caused by future actions in the vicinity of the Rodanthe Historic District and Chicamacomico Life Saving Station properties is included in the draft Section 106 Programmatic Agreement located in Appendix F. Constructive Use The preceding analysis focused on a direct, physical use of Section 4(f) properties in the project area. FHWA must also evaluate whether the alternatives have such severe proximity impacts that a constructive use would result, as defined in the Section 4(f) regulations. The FEIS/Final Section 4(f) Evaluation determined that none of the alternatives would constructively use any of the Section 4(f) properties. However, the SHPO, the USDOI and the Southern Environmental Law Center provided comments suggesting that the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative would constructively use the Refuge. In addition, the SHPO commented that the alternative would also constructively use the Rodanthe Historic District and the Chicamacomico Life Saving Station. Based on these comments and further evaluation, FHWA has determined that the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative would constructively use the Refuge as a historic property. In regards to the Rodanthe Historic District and Chicamacomico Life Saving Station, the NCDOT and FHWA worked with the SHPO, ACHP and consulting parties to develop conceptual design modifications to lessen proximity impacts to those resources to the extent that there would no longer be an adverse effect on either property. These conceptual design modifications were also applied to the two other Parallel Bridge Corridor alternatives that originally proposed work in the Rodanthe area as described in Appendix C. Thus, consistent with the FEIS/Section 4(f) Evaluation, FHWA determines that none of the Parallel Bridge Corridor alternatives would constructively use the Rodanthe Historic District and the Chicamacomico Life Saving Station historic properties. The constructive use analysis and determinations follow. Pea Island National Wildlife Refuge (as a Historic Property) The FEIS/Final Section 4(f) Evaluation did not make constructive use determinations for any of the detailed study alternatives for the Refuge. The only change in the constructive use determination involves the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative. The SHPO, in their comments on the FEIS/Final Section 4(f) Evaluation (dated October 28, 2008), stated their belief that this alternative would constructively use the Refuge (as a historic property). They state: "...In the case ofPea Island Wildlife Refuge, the construction of a ten-mile long bridge, elevated thirty feet above ground level and topped with a nearly five foot railing (andperhaps with an additional six foot high, chain-link fence as suggested by the Refuge during the Section 106 consultation), will introduce a substantial visual intrusion that is antithetical to the historic landscape... Retaining its key original elements and integrity of location, setting, materials, feeling and association, the Refuge as a historic landscape will not only be adversely affected, it will be substantially, visually impaired by the presence of a bridge of the height and length proposed with the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge (preferred). While the bridge may not eliminate the Refuge's ability to function as a wildlife refuge, it will destroy its integrity as a historic landscape... " In response to this comment, the FHWA Federal Preservation Officer was consulted and additional discussions with the SHPO, ACHP, USFWS and NCDOT Historic Architecture Staff occurred. FHWA reviewed the B-2500 Revised Final Section 4(f) Evaluation Page 16 B-16 available documentation pertaining to why the Refuge is eligible for the National Register; its significance; what elements of the historic landscape were constructed by the Civilian Conservation Corps (CCC) and where; the extent to which those elements still exist and have not been altered; and the proximity of the alternative to the significant elements of the historic landscape that are still extant. FHWA also considered the extent to which the visual impact of the alternative could be lessened through mitigation measures, such as by requiring careful attention to the design details of the bridge structure, or through landscaping. FHWA found that the historic landscape of the Refuge is a rare example of its type; it is nationally significant; a number of contributing elements are extant and in fair condition; that although threatened by weather, the historic landscape is protected from development due to its location within the National Seashore and Refuge; that the introduction of a bridge structure up to 33 feet in height across the entire length of the Refuge, in a location nearly adjacent to most of the significant contributing elements that still exist, would be a substantial visual intrusion for which little mitigation is possible. Thus the proximity impacts from this alternative would be so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f) would be substantially impaired. Therefore, we now find that the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative would constructively use the Refuge (as a historic property). Earlier in this analysis, FHWA found that the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative would permanently incorporate land from the Refuge into a transportation facility. Because of this determination, there cannot also be a constructive use of this property from this alternative. (former) Oregon Inlet US Coast Guard Station The FEIS/Final Section 4(f) Evaluation found that none of the alternatives would constructively use this property. Phase I of the new preferred Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative would also not constructively use the historic (former) Oregon Inlet US Coast Guard Station because it would not have proximity impacts severe enough to substantially impair the protected features, activities, and attributes of the property. The property is unoccupied and as such has no noise-sensitive activities. Access to the property via SR 1257 and NC 12 would continue to be provided. While the alternative would have an adverse visual effect on the property due to the replacement bridge being approximately 17 feet higher than the existing Bonner Bridge as it enters Hatteras Island and extending approximately 2,000 feet farther as it returns to grade, this slight change in the viewshed would not rise to the level of a substantial impairment. Later phases of the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative would not be expected to constructively use the (former) Oregon Inlet US Coast Guard Station because this property is located adjacent to Phase I. Rodanthe Historic District and Chicamacomico Life Saving Station The FEIS/Final Section 4(f) Evaluation did not find a constructive use of either property from any alternative. These determinations have not changed, but some alternatives have been modified to reduce proximity impacts. In the FEIS, three alternatives (Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge, Parallel Bridge Corridor with Road North/Bridge South, and Parallel Bridge Corridor with All Bridge) were originally determined to have an "adverse effect" (pursuant to Section 106 of the National Historic Preservation Act) on these properties. The SHPO, in their comments on the FEIS/Final Section 4(f) Evaluation (dated October 28, 2008), stated their belief that the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative would constructively use the Rodanthe Historic District and Chicamacomico Life Saving Station: "... Given the serious access problems and visual impacts caused by the proposed bridge, we believe that the Preferred Alternative [Phased Approach/Rodanthe Bridge] substantially impairs the functions, features and attributes of the Rodanthe Historic District and Chicamacomico Life Saving Station and, thereby, constitutes a constructive use of the historic properties. " B-2500 Revised Final Section 4(f) Evaluation Page 17 B-17 In response to this concern, FHWA and NCDOT have modified conceptual project designs in the Rodanthe area to bring NC 12 down to grade (ground level) prior to entering the Rodanthe Historic District. The modified concept designs apply to the following alternatives: • Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge; • Parallel Bridge Corridor with Road North/Bridge South; and • Parallel Bridge Corridor with All Bridge. After re-initiating consultation with the SHPO, the ACHP, and consulting parties, a determination of "no adverse effect" was concluded for these three alternatives on these historic properties. As a result of the design changes and the additional coordination, the original FEIS/Final Section 40 Evaluation determination (that these three alternatives would not constructively use these properties) remains valid and therefore has not changed. Phase I of the new preferred Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative would not constructively use the Rodanthe Historic District and Chicamacomico Life Saving Station properties because it includes no action in the vicinity of these properties. Further, it is anticipated that any future action during a later phase would not constructively use the Rodanthe Historic District and Chicamacomico Life Saving Station properties because the conceptual design modifications that were implemented for the other Parallel Bridge Corridor alternatives could presumably be implemented for the later phase of the Parallel Corridor with NC 12 Transportation Management Plan Alternative as well. If, however, a use of the Rodanthe Historic District and Chicamacomico Life Saving Station is necessary for any alternative action that may be evaluated in the future for the later phases of the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative, then the proximity impacts of the proposed use would be assessed under Section 4(f) for possible constructive use prior to FHWA approval of the future action. The analysis would be based on the future shoreline and historic property conditions as they exist in the future. Additional information about the assessment of future impacts caused by future actions in the vicinity of the Rodanthe Historic District and Chicamacomico Life Saving Station properties is included in the draft Section 106 Programmatic Agreement located in Appendix F. Summary of Revised Section 4(f) "Use" Determinations In summary, this Revised Section 4(f) Evaluation has changed FHWA's determinations of the proposed "use" of property under Section 4(f) for the Cape Hatteras National Seashore for all alternatives evaluated in the FEIS. This revised Section 4(f) Evaluation has also changed FHWA's determination of the proposed "use" of property under Section 4(f) for the Pea Island National Wildlife Refuge for the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative. For the new Preferred Alternative (Parallel Corridor with NC 12 Transportation Management Plan), this revised Section 4(f) Evaluation has determined that there would be a use of approximately 3.08 acres of the Pea Island National Wildlife Refuge. A summary of use and applicability determinations is presented in Table 3. B-2500 Revised Final Section 4Cf) Evaluation Page 18 B-18 Table 3: Revised Section 4(f) "Use" Determinations Road Phased Phased NC 12 PSB: PSB: 4(f) Resource Nourishment North/ All Approach/ Approach/ Transportation Curved Intersection Bridge Bridge Rodanthe Rodanthe Management odanthe Rodanthe South Bride Nourishment Plan (Phase I) Terminus Terminus Cape Hatteras National NA NA NA NA NA NA NA NA Seashore (joint (joint (joint (joint (joint (joint (joint (joint (public planning) planning) planning) planning) planning) planning) planning) planning) recreation area Pea Island NA NA NA NA NA NA NA NA National (joint (joint (joint (joint (joint (joint (joint (joint ildlife Refuge W ife W planning) planning) planning) planning) planning) planning) planning) planning) a (as refuge) Pea Island National P:Yes P:Yes P:Yes P:No P:Yes P:Yes P:No P:No Wildlife Refuge T:No T:No T:No T:No T:No T:No T:No T:No (as a historic C:No C:No C:No CYes C:No C:No C:No C:No property) (former) Oregon Inlet P:No P:No P:No P:No P:No P:No P:No P:No US Coast T:No T:No T:No T:No T:No T:No T:No T:No Guard Station C:No C:No C:No C:No C:No C:No C:No C:No (historic) Rodanthe P:No P:No P:No P:No P:No P:No P:No P:No Historic District T:No T:No T:No T:No T:No T:No T:No T:No (historic) C:No C:No C:No C:No C:No C:No C:No C:No Chicamacomico Life Saving P:No P:No P:No P:No P:No P:No P:No P:No Station T:No T:No T:No T:No T:No T:No T:No T:No (historic) C:No C:No C:No C:No C:No C:No C:No C:No Kev: P = Permanent- T = Temnorarv_ C = Constructive- N A = Not Annlicable Avoidance Alternatives The intent of the Section 4(f) statute and the policy of the USDOT is to prohibit the use of significant publicly owned parks, recreation areas, wildlife and waterfowl refuges, and historic sites as part of a project, unless there is no feasible and prudent alternative to the use of such land. Therefore, FHWA cannot approve the use of a Section 4(f) property if there is a feasible and prudent avoidance alternative available. A feasible and prudent avoidance alternative is one that avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property. In order to demonstrate that there is no feasible and prudent alternative to the use of 4(f) land, a Section 4(f) Evaluation must address both location alternatives and design shifts that totally would avoid using the 4(f) land. The Section 4(f) regulations (23 CFR 774.17) define feasible and prudent avoidance alternatives as follows: "(1) A feasible and prudent avoidance alternative avoids using Section 40 property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 40 property. In assessing the importance ofprotecting the Section 40 property, it is appropriate to consider the relative value of the resource to the preservation purpose of the statute. (2) An alternative is not feasible if it cannot be built as a matter of sound engineering judgment. (3) An alternative is not prudent if (i) It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need; B-2500 Revised Final Section 4(f) Evaluation Page 19 B-19 (ii) It results in unacceptable safety or operational problems; (iii) After reasonable mitigation, it still causes: (A) Severe social, economic, or environmental impacts; (B) Severe disruption to established communities; (C) Severe disproportionate impacts to minority or low income populations; or (D) Severe impacts to environmental resources protected under other Federal statutes; (iv) It results in additional construction, maintenance, or operational costs of an extraordinary magnitude; (v) It causes other unique problems or unusual factors; or (vi) It involves multiple factors in paragraphs (3)(i) through (3)(v) of this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude. The first test under Section 4(f) is to determine whether or not there is an avoidance alternative that is feasible. Based on 23 CFR 774.17(2) (see above), an alternative is feasible if it is technically possible to design and build. The second part of the standard involves determining whether or not an alternative is prudent. An alternative is prudent if it does not cause the adverse impacts discussed above in 23 CFR 774.17(3). Where sufficient analysis demonstrates that a particular alternative is not feasible and prudent, the analysis or consideration of that alternative as a viable alternative comes to an end. What Did the FEIS/Final Section 4(f) Evaluation Find? Due to the large Section 4(f) properties covering nearly all of Bodie and Hatteras Islands in the project area, the FEIS/Final Section 4(f) Evaluation did not find any feasible and prudent avoidance alternatives. All of the alternatives identified in Chapter 2 of the FEIS either did not meet the Purpose and Need of the project or used Section 4(f) property. By definition, an alternative that uses Section 4(f) property is not an avoidance alternative. In their comments on the FEIS/Final Section 4(f) Evaluation, the USDOI did not agree with this determination. USDOI believed that the Pamlico Sound Bridge Corridor alternatives would appear to be feasible and prudent and would minimize harm to the Refuge. Further, USDOI commented that NCDOT has previously demonstrated that the Pamlico Sound Bridge Corridor presents feasible alternatives from an engineering standpoint. What Has Changed? FHWA did not consider the Pamlico Sound Bridge Corridor as an avoidance alternative in the Final Section 4(f) Evaluation because, at that time, FHWA found the Pamlico Sound Bridge Corridor used land from the Cape Hatteras National Seashore (a Section 4(f) property). The preceding section of this Revised Final Section 4(f) Evaluation documented newly obtained information showing that the road pre-dates the establishment of the Seashore and both were concurrently and jointly planned and developed to co-exist-information which led FHWA to revise its use determinations for the Seashore. Thus, the Pamlico Sound Bridge Corridor must be analyzed as a feasible and prudent avoidance alternative under Section 4(f). FHWA completed a feasible and prudent analysis for the Pamlico Sound Bridge Corridor and considered the factors suggested by the USDOI in their FEIS comments. This evaluation of the Pamlico Sound Bridge Corridor as a Feasible and Prudent Avoidance Alternative under Section 4(f) of the Department of Transportation Act is located in Appendix G. FHWA determined that the Pamlico Sound Bridge Corridor is not a feasible and prudent avoidance alternative to using the Refuge because the cost of all of the Pamlico Sound Bridge Corridor alternatives would be of extraordinary magnitude in consideration of the funding available to the NCDOT to operate, improve and maintain its State highway system. To summarize the detailed analysis contained in Appendix G, implementation of any of the Pamlico Sound Bridge Corridor alternatives would require a single construction phase costing between $942.9 million and $1.441 billion (2006 dollars). The project could not be financed by phasing construction over a fifty year period because it consists of a single, 17.5 mile long bridge that would B-2500 Revised Final Section 4(f) Evaluation Page 20 B-20 have to be built in one phase. Funding a 17.5-mile bridge would create a unique maintenance problem of extraordinary magnitude for NCDOT as it would have to defer much needed improvements on the remainder of the State highway system in North Carolina for a significant period of time. The Pamlico Sound Bridge Corridor would also have severe adverse impacts to the public's access to the Refuge. Important in this determination is the historical record that shows that throughout the history of the Seashore and Refuge, NC 12 has been operated and maintained in the Seashore and the Refuge while at the same time protecting the important historic features and attributes of the Refuge. Therefore, in this evaluation, the Pamlico Sound Bridge Corridor alternatives are not carried forward as detailed study alternatives because they are not feasible and prudent avoidance alternatives. Conclusion Based on the analysis and determinations from the DEIS, SDEIS, SSDEIS, FEIS/Final Section 4(f) Evaluation, and this Revised Final Section 4(f) Evaluation, there is no feasible and prudent avoidance alternative to the use of the Section 4(f) property needed to construct the proposed action. Least Overall Harm Analysis The FEIS/Final Section 4(f) Evaluation established that, due to the extensive size and location of properties protected by Section 4(f) in the Bonner Bridge project area, all feasible and prudent alternatives would use Section 4(f) property. There is no feasible and prudent avoidance alternative for this project. In response to comments from the USDOI on the Final Section 4(f) Evaluation, FHWA reconsidered whether the Pamlico Sound Bridge Corridor is a feasible and prudent avoidance alternative but found that it is not (See Appendix G and earlier discussion above). When FHWA determines there is no feasible and prudent avoidance alternative, the Section 4(f) regulations require FHWA to identify, from among the remaining alternatives using Section 4(f) property, the alternative that causes the "least overall harm." The Section 4(f) regulations, 23 CFR 774.3(c), specify that the alternative that causes the least overall harm is determined by balancing seven specific factors. These factors are as follows: 1. the ability of the alternatives to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property); 2. the relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection; 3. the relative significance of each Section 4(f) property; 4. the views of the official(s) with jurisdiction over each Section 4(f) property; 5. the degree to which each alternative meets the purpose and need for the project; 6. after reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and 7. substantial differences in costs among the alternatives. What Did the FEIS/Final Section 4(f) Evaluation Find? The FEIS/Final Section 4(f) Evaluation contained a least overall harm analysis that considered each of the factors listed above for every alternative. The analysis considered the Pea Island National Wildlife Refuge to be the most significant of the various Section 4(f) properties within the project area because of its multiple functions as a wildlife refuge, as a historic property and as part of the Cape Hatteras National Seashore. After balancing the various factors, the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative was the alternative identified as causing the least overall harm. The Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative was thought to cause the least overall harm because it would elevate NC 12 from an at-grade road onto a high structure at all of the locations (totaling approximately eleven miles) where future shoreline erosion is predicted to threaten the road by 2060 -- thereby staying within the existing road easement. In some locations this meant that NCDOT would be building bridges expected to be standing in the Atlantic Ocean by 2060. B-2500 Revised Final Section 4(f) Evaluation Page 21 B-21 Since staying within the existing road easement would avoid a physical take of additional Refuge property; would not be subject to a compatibility determination under the National Wildlife Refuge System Administration Act; and would allow natural shoreline processes to take place, the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative was thought not to substantially impair any of the important activities, features, or attributes of the Refuge. Thus, based upon the information at that time, the Final Section 4(f) Evaluation concluded that the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative would cause the least overall harm. How Do the Changes Described in this Revised Final Section 4(f) Evaluation Affect the Least Overall Harm Analysis? Several changes previously explained in this Section 4(f) Evaluation are relevant to the least overall harm analysis: • The Pamlico Sound Bridge Corridor was determined not to be a feasible and prudent avoidance alternative. Therefore, the revised least overall harm analysis does not include the Pamlico Sound Bridge Corridor. • New information was uncovered about historical vehicular access across the project area and the concurrent and joint planning and development of the road, Seashore and Refuge. This information led F14WA to reconsider its previous emphasis on staying within the current road easement above all other considerations. • Adverse comments submitted in response to the FEIS/Final Section 4(f) Evaluation and subsequent additional consultation with the officials with jurisdiction indicated that the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge did not avoid adverse impacts to the Refuge. The comments and additional consultation led NCDOT and FHWA to reconsider the effect on the Refuge of building lengthy, elevated ocean bridges. • Modifications to several alternatives were implemented in response to comments received on the Final Section 4(f) Evaluation that lessen the adverse impacts to the Rodanthe Historic District and the Chicamacomico Life Saving Station. With the harm minimization modifications at these properties, there is now no difference in impacts expected to these two historic properties. The Parallel Bridge Corridor alternatives are now substantially equal with respect to these properties. • Additional consultation with the project Merger Team led NCDOT and FHWA to reconsider the need to make final decisions now, based on long-range predictions of storms and shoreline erosion, for all future phases of the project. This was due to the uncertainty as to when the later construction phases would be needed. A proposal by EPA to only commit to taking the immediately needed action at this time- replacement of the structurally deficient Bonner Bridge, with a phased decision-making process for assessing and approving later actions in the project area-minimizes harm to the Refuge by giving the project sponsors the opportunity to review and incorporate new analysis prior to commencement of each phase. These changes affect FHWA's analysis of several of the least overall harm factors, and result in a new conclusion. Discussion is contained in the sections below to address each of the factors and provide the basis for the revised determination of the alternative that causes least overall harm. Factor #1: The ability of the alternatives to mitigate adverse impacts to each Section 4(l) property (including any measures that result in benefits to the property) The Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative was developed in response to a proposal from EPA to delay the decision-making for the later phases of this fifty-year long project until a future point in time when coastal conditions affecting NC 12 are better known. Although the future conditions have been predicted using the best available scientific models, there is inherent uncertainty involved in predicting the exact timing and location of shoreline changes of a coastal barrier island in the future. Because the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative includes firm commitments to study and mitigate the future environmental conditions prior to making decisions for the later phases, it provides the best opportunity to mitigate the impacts to the Section 4(f) properties in the project area. B-2500 Revised Final Section 4(f) Evaluation Page 22 B-22 With respect to Phase I, the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative would have substantially equal impacts after mitigation as the other Parallel Bridge Corridor alternatives. Phase I of the current Preferred Alternative (Parallel Bridge Corridor with NC 12 Transportation Management Plan) and Phase I of all other Parallel Bridge Corridor alternatives are very similar. At the northern end of the project, on Bodie Island, the alternatives are identical. They remain identical over the Oregon Inlet channel. Upon entering Hatteras Island, the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative is located approximately 216.5 feet further west of NC 12. The Oregon Inlet termini for the various Phase I alternatives are depicted in Appendix I. The following alternatives all have their southern termini located just south of SR 1257: the Preferred Alternative, both Parallel Bridge Corridor with Phased Approach Alternatives and the Parallel Bridge Corridor with Nourishment Alternative. The Parallel Bridge Corridor with Road North/Bridge South and the Parallel Bridge Corridor with All Bridge Alternatives enter Hatteras Island farther west than the Preferred Alternative, requiring the use of more property from the Refuge. The Parallel Bridge Corridor with Road North/Bridge South and Parallel Bridge Corridor with All Bridge Alternatives would also require a longer extension into the Refuge before tying into the existing easement. All alternatives have Phase I returning to ground level and tie-in to the existing road alignment at grade. The approximately 216.5 foot shift west with the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative would relocate approximately 2.91 acres of the existing road easement to an adjacent area of the Refuge, which is considered a use under Section 4(f). An additional approximately 0.17 acre area would be required in order to maintain safe vehicular access to the Refuge parking lot that provides parking for Refuge visitors participating in recreational fishing activities offered at Oregon Inlet. Maps depicting these impacts are included in Appendix E. For comparison, Phase I of the Parallel Bridge Corridor with Road North/Bridge South Alternative would use approximately 5.3 acres of the Refuge and Phase I of the Parallel Bridge Corridor with All Bridge Alternative would use approximately 6.1 acres of the Refuge. While Phase I of the Parallel Bridge Corridor with Phased Approach and Nourishment Alternatives would be built within the existing easement, these alternatives would have such severe proximity impacts on the historic landscape that there would be a constructive use of the Refuge. Phase I of the Preferred Alternative impacts an area that includes relatively lower-quality wetlands. The additional wetland impacts would be mitigated as required by the environmental permitting process. The impacted area does not contain habitat used by any of the endangered species known to exist on the Refuge. The additional use of Refuge property would be minimized through conditions and/or stipulations that will be negotiated with the USFWS and incorporated into the new road easement. These may include measures such as contract specifications, research assistance, the return of easement land to the Refuge, capital improvements on the Refuge or any other reasonable measures that would benefit the Refuge. The Parallel Bridge Corridor with Road North/Bridge South and the Parallel Bridge Corridor with All Bridge Alternatives would impact more wetland and higher quality wetlands than the Preferred Alternative. Phase I of the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative also minimizes harm as compared to the other Parallel Bridge Corridor alternatives because it allows NCDOT to preserve public fishing access at Oregon Inlet, a recreational activity currently provided by the Refuge that was determined to be compatible with the Refuge mission in 2006. Because the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative can be constructed without building a temporary traffic maintenance bridge, NCDOT can commit to providing public fishing access both during and after construction (assuming the USFWS continues to permit recreational fishing). While the exact parameters of such access is a detail that could not be finalized prior to the final design engineering process, a general commitment would be included in the ROD to design the project in a manner that provides public fishing access. During construction, the contractor would be responsible for maintaining reasonable public access for fishing, with temporary limitations allowed when necessary to protect the safety of the public and/or the construction workers. B-2500 Revised Final Section 4Cf) Evaluation Page 23 B-23 Another important benefit of avoiding a temporary traffic maintenance bridge is that traffic conditions during the construction period would be safer for the 5,400 to 10,900 vehicles that cross Bonner Bridge each day (FEIS p.1-4). This option would provide an approximately 220 foot separation between the existing Bonner Bridge and the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative. In addition, avoiding the need to construct the temporary traffic maintenance bridge would result in fewer temporary impacts to the Refuge from the temporary bridge. Factor #2: The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection. The only Section 4(f) property that would be used by any alternative is the Refuge (as a historic property). The harm to the Refuge (as a historic property) that would remain after mitigation is minimized is described below. The other Section 4(f) properties in the project area would incur proximity impacts from various alternatives, but would not be used within the meaning of Section 4(f). Through the consultation process required by Section 106 of the National Historic Preservation Act, FHWA determined that all of the Parallel Bridge Corridor alternatives except for the Parallel Bridge Corridor with Nourishment Alternative would have an adverse effect on the Refuge. The SHPO concurred in the determination. The adverse effect determination is based in part on the alternatives requiring a bridge height of up to 33 feet in various portions of the historic landscape that would alter the naturalized setting enhanced by the Civilian Conservation Corps in the 1930s, and also due to impacts on specific elements of the constructed landscape such as the historic ponds (as a result of possible road relocations). The adverse effects are mitigated through the measures documented in the draft Programmatic Agreement located in Appendix F. While the Parallel Bridge Corridor with Nourishment Alternative would avoid the adverse effect on the Refuge, it would have a use of Refuge property under Section 4(f) due to the placement of sand on the beaches. It is not possible to precisely quantify or qualify the extent of remaining adverse effects to the Refuge after mitigation, due to the deferred decision-making for later phases of the project with the preferred Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative. These uncertainties are accounted for through a draft Programmatic Agreement pursuant to Section 106 of the National Historic Preservation Act (see Appendix F). The purpose of the Programmatic Agreement is to set forth the agreed upon treatment and mitigation of harm for Phase I, and the agreed upon process for evaluating, treating, and mitigating harm prior to FHWA's approval of later phases of action. Although the Section 106 regulations permit a Programmatic Agreement to defer the identification of historic properties for future phases of a project, in this case NCDOT has completed the identification of properties protected under Section 4(f) for the entire project area. Because the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative includes firm commitments to study and mitigate the future environmental conditions prior to making decisions for the later phases, it provides the best opportunity to mitigate the impacts to the Section 4(f) properties in the project area. Factor #3: The relative significance of each Section 4(fi property The FEIS/Final Section 4(f) Evaluation identified the Refuge/Seashore on Hatteras Island as the most significant Section 4(f) properties. Due to the determination of concurrent and joint planning and development between the Seashore and the transportation infrastructure, coupled with the determination that the Refuge (as a historic property) is the only Section 4(f) property that will be used, the Refuge remains the most significant Section 4(f) property affected by this project. Factor #4: The views of the official(s) with jurisdiction over each Section 4(f) property As described above, following the FEIS/Final Section 4(f) Evaluation, additional comments were received and additional consultation occurred with the officials with jurisdiction over the Section 4(f) properties in the project area. The SHPO indicated its opinion that the formerly preferred Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative would substantially impair the integrity of the historic Refuge. This opinion was directly tied to the extensive high bridging proposed with this alternative. B-2500 Revised Final Section 4(f) Evaluation Page 24 B-24 As part of the Merger Team, the SHPO actively participated in the discussions over the past year that led to the development of the preferred Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative. As a result, the SHPO is expected to sign an amended Concurrence Point 43 (selection of Preferred Alternative/Least Environmentally Damaging Practicable Alternative) identifying the Parallel Bridge Corridor with NC 12 Transportation Management Plan as the Preferred Alternative/Least Environmentally Damaging Practicable Alternative. Furthermore the SHPO and the ACHP have been consulted on the new Preferred Alternative and are expected to sign the draft Programmatic Agreement included in Appendix F to resolve its adverse effects pursuant to Section 106 of the National Historic Preservation Act. The draft Programmatic Agreement will be finalized prior to the ROD. There are two Federal agencies (USFWS & NPS) under the USDOI that manage Federal lands along the project corridor. The USFWS has indicated that it has concerns with the Draft Partnership Agreement (Appendix H) and is in the process of developing comments and suggesting revisions. The NPS has indicated that an amended Merger Team concurrence form is the appropriate mechanism for documenting the apparent decision at the May 2009 meeting to move forward with Phase I of the project. NPS also stated they see potential value for developing an interagency agreement in the future, if there are coordination functions that cannot be satisfactorily addressed under the Merger Team process. An important feature with the Parallel Bridge Corridor with NC 12 Transportation Management Plan is that it meets the criteria identified in former Secretary of Interior Dirk Kempthome's July 2006 letter, which states "I believe that the best way to proceed would be to separate the replacement of the Bonner Bridge ... from the more difficult and less urgent issues of the realignment of the road... ". 2' Prior to the ROD, NCDOT and FHWA will continue to consult and coordinate with the USFWS and NPS to address their concerns. F14WA is circulating this Revised Final Section 4(f) Evaluation to provide the resource agencies and the public an opportunity to review and comment. All comments received will be reviewed and taken into account prior to the approval of the use of any Section 4(f) property in the ROD. Factor #5: The degree to which each alternative meets the purpose and need for the project There is no change in the analysis of this factor. All of the alternatives being compared in this least overall harm analysis, including the new Preferred Alternative, would meet the purpose and need for the project. Factor #6: After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(l) The Final Section 4(f) Evaluation highlighted relocations, economic impacts, and visual impacts, and incorporated other impact discussions within the FEIS by reference. The Parallel Bridge Corridor alternatives that included nourishment were thought to be favored by this factor, with the remaining alternatives being substantially equal. This determination was primarily due to visual impacts in Rodanthe that have since been minimized through design modifications. Phase I of the Parallel Bridge Corridor with NC 12 Transportation Management Plan is expected to have similar impacts to resources not protected by Section 4(f) as the other Parallel Bridge Corridor alternatives. It is not possible to precisely quantify or qualify the extent of adverse impacts to resources not protected by Section 4(f) for the later phases of the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative; however, Because the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative includes firm commitments to study and mitigate the future environmental conditions prior to making decisions for the later phases, it provides the best opportunity to mitigate the impacts to the Section 4(f) properties in the project area. 27 FHWA, Final Environmental Impact Statement and Final Section 4(f) Evaluation, NC 12 Replacement of the Herbert C. Bonner Bridge, Volume 2, September 17, 2008, Appendix A B-2500 Revised Final Section 4(f) Evaluation Page 25 B-25 Factor #7: Substantial Differences in Costs among the Alternatives The estimated cost of the new Preferred Alternative in comparison to the other alternatives is shown in Table 4 (Total Highway Cost of the Alternatives Through 2060) and in Table 5 (Phase I Estimated Cost to Replace Bonner Bridge). Table 4 shows that the total highway, end-to-end, cost of the project through 2060 ranges from $602 million to $1.17lbillion for the low estimate to $740 to million to $1.524 billion for the high estimate (costs are presented in 2006 dollars). The least expensive end-to-end alternative is the Road North/Bridge South Alternative, with the Phased Approach/Rodanthe Nourishment being the most expensive. The Preferred Alternative, Parallel Bridge Corridor with NC 12 Transportation Management Plan, incorporates costs from all the Parallel Bridge Corridor Alternatives since this alternative does not make a decision about the future phases at this time. Hence, there is less certainty in the total end-to-end cost estimate for this alternative compared to the others. Table 5 provides cost estimates for Phase I of each alternative. The Parallel Bridge Corridor with NC 12 Transportation Management Plan (Preferred Alternative) has the lowest estimated cost range, from a low of $265 million to a high of $315 million. This is due to the following reasons: • Phase I of the Preferred Alternative is less expensive than the Parallel Bridge Corridor with Road North/Bridge South and the Parallel Bridge Corridor with All Bridge Alternatives because these two alternatives are located up to 500 feet west of the existing easement. A connection would be required to tie the end of the Phase I bridge to the roadway within the existing easement. This connection would extend further south than the tie-in for the Preferred Alternative. • Phase I of the Preferred Alternative is less expensive than the Parallel Bridge Corridor with Phased Approach Alternatives as well as the Parallel Bridge Corridor with Nourishment Alternative because it would not require the construction of a temporary bridge, ramps on Hatteras Island, and other maintenance of traffic costs. These additional costs are necessary to since all work would be confine the existing 100-foot easement. Therefore, the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative is the least expensive alternative for Phase I, and (along with the Parallel Bridge Corridor with Road North/Bridge South and the Parallel Bridge Corridor with All Bridge Alternatives) provides better maintenance of traffic during construction than both Phased Approach Alternatives and the Nourishment Alternative. Table 4: Total Highway Cost of the Alternatives Through 2060 Alternative (in 2006 dollars) Low Estimate High Estimate Nourishment $672 million $970 million Road North/Bridge South $602 million $740 million All Bride $1.108 billion $1.435 billion Phased A roach/Rodanthe Bride $1.171 billion $1.497 billion Phased A roach/Rodanthe Nourishment $1.149 billion $1.524 billion NC 12 Transportation Management Plan* $602 million $1.524 billion *The costs shown for the NC 12 Transportation Management Plan Alternative incorporate the lower and upper limits of total cost for the other Parallel Bridge Corridor Alternatives in order to provide a reasonable prediction of possible costs for the future phases of action. Since this alternative does not make a decision about the future phases at this time, there is less certainty in the total cost estimate for this alternative compared to the others. B-2500 Revised Final Section 4Cf) Evaluation Page 26 B-26 Table 5: Phase I Estimated Construction Cost to Replace Bonner Bridge Alternatives (in 2006 dollars) Low Estimate High Estimate Nourishment $312 million $368 million Road North/Bridge South $284 million $346 million All Bride $285 million $347 million Phased A roach/Rodanthe Bride $312 million $368 million Phased A roach/Rodanthe Nourishment $312 million $368 million NC 12 Transportation Management Plan (Preferred) $265 million $315 million Conclusion Based on a consideration and balancing of the seven factors above, FHWA and NCDOT have determined that the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative (the Preferred Alternative) is the alternative that causes the least overall harm. The major factor in determining that the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative causes the least overall harm is the flexibility it allows in determining future phases. The Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative recognizes that the project area is complex and that the shoreline is constantly changing. It also recognizes that the ability to predict the effect of future storms on the project area is extremely difficult to quantify, and that the various alternatives may need to be reassessed in the future as the shoreline and other landscape features change between 2009 and 2060. FHWA and NCDOT will coordinate with the officials with jurisdiction over the Section 4(f) properties in the project area and with the Merger Team agencies to determine the best solution to address future actions along the project corridor. This interagency collaboration will lead to FHWA and NCDOT implementing actions that will cause the least overall harm to Section 4(f) resources for future phases of this project. All Possible Planning to Minimize Harm Under 23 CFR 774.3(c)(2), the alternative selected as causing the least overall harm must also include "all possible planning ... to minimize harm to Section 4(f) property." According to 23 CFR 774.17, all possible planning may include design modifications, replacement, or monetary compensation for parks, recreation areas, or wildlife refuges. Common to all Section 4(f) properties, the Merger Process and the Partnership Agreement are intended to serve as a framework for decision-making for the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative. They also serve as a framework for identifying all possible planning to minimize harm. This framework will utilize coastal and natural resource monitoring of area conditions to identify specific issues, involving relevant stakeholders in identifying the optimal solutions. As a result, this alternative, more so than any other alternative, allows for implementation of strategies that will minimize harm to the Section 4(f) resources. Other property-specific minimization of harm efforts include: Cape Hatteras National Seashore: • Related to the need for Seashore property on Bodie Island (approximately 6.3 acres [2.6 hectares]), FHWA and DOT would restore and return the 6.3 acres (2.6 hectares) of Seashore currently used by Bonner Bridge. After mitigation, the Seashore would not lose any net area with the Preferred Alternative. • The NPS has been engaged in the development of the new Preferred Alternative through participation as a Merger Team member. • The NPS is identified as a signatory to the proposed Partnership Agreement (Appendix H). Their participation (through the Partnership Agreement and/or through participation on the Merger Team) will assist in future decision-making that lessens harm to the Seashore. • Access to Seashore facilities on Bodie Island will be maintained during construction. The details will be worked out with the NPS during the design process. B-2500 Revised Final Section 4Cf) Evaluation Page 27 B-27 Construction specifications to minimize impacts to the campgrounds and the Oregon Inlet Fishing Center during construction will be developed with the NPS during final design. The NPS has requested 2' NCDOT to consider wetland mitigation related to highway alignment changes north of the current Bonner Bridge. Specifically, the NPS has requested wetland enhancement that would include control of exotic plants in wetlands on Bodie Island. As suggested in the NPS letter, NCDOT will work with the NPS to develop an agreed-upon Wetland Mitigation Plan prior to implementation of mitigation. Greensheet Commitment 42. "Bicycle Accommodations. The Seashore management plan supports the use of bicycles along NC 12. All bridges in both replacement bridge corridors (including the Preferred Alternative) would have 8 -foot (2.4-meter) wide shoulders that would be safer for bicycle and pedestrian traffic than Bonner Bridge's 2 -foot (0.6-meter) wide shoulders. In addition, a bicycle-safe bridge rail on the bridges also would provide increased safety for bicyclists. New roadway would have 4 -foot (1.2-meter) paved shoulders, which would be safer for use by bicycle and pedestrian traffic than existing NC 12's unpaved shoulders. " Greensheet Commitment 49. "Disposal of Dredged Material. Prior to construction, during the USACE permit preparation process, the FHWA and the NCDOT would work with appropriate environmental resource and regulatory agencies to identify the characteristics of dredged material from bridge construction in open water and develop a disposal plan that would minimize harm to natural resources. The appropriate location for dredged material disposal would be determined based on the character of the materials dredged, the availability ofdisposal sites, and coastal conditions near the time of construction. In addition, the terms and conditions outlined in the Biological and Conference Opinions (USFWS, 2008) related to piping plovers specify that "all dredge spoil excavated for construction barge access must be used to augment either existing dredge-material islands or to create new dredge- material islands for use by foraging plovers. This must be accomplished as per the specifications of the North Carolina Wildlife Resources Commission. " Pea Island National Wildlife Refuge: • The conceptual design for Phase I maintains access to the Refuge parking lot and maintains access for public fishing opportunities. • Approximately 3.27 acres of the existing easement is potentially available to be returned to the USFWS. Additional coordination will occur to determine if the USFWS wants this land to be returned. • The USFWS has been engaged in the development of the new Preferred Alternative through participation as a Merger Team member. • The USFWS is identified as a signatory to the Partnership Agreement (Appendix H). Their participation (through the Partnership Agreement and/or through participation on the Merger Team) will assist in future decision-making that lessens harm to the Refuge. • Greensheet Commitment # 4. "Sedimentation and Erosion Control. All waters in the project area are classified as SA waters (Class A salt waters) with a supplemental classification ofHigh Quality Waters (HQ W). The most stringent application of the BestManagement Practices (BMPs) is expected where highway projects affect receiving waters of special designation, such as HQ W. Also, impacts to adjacent areas of SAV and/or wetlands should be minimized. Therefore, sedimentation and erosion control measures shall adhere to the Design Standards in Sensitive Watersheds [15A NCAC 04B.0124(b)-(e)J. Prior to construction, the design-build contractor will submit the proposed sediment and erosion control plans for each stage of construction to the NCDOT and permitting agencies for review. " • Greensheet Commitment 49. Disposal of Dredged Material. Prior to construction, during the USACE permit preparation process, the FHWA and the NCDOT would work with appropriate environmental resource and regulatory agencies to identify the characteristics of dredged material from bridge construction in open water and develop a disposal plan that would minimize harm to natural resources. The appropriate location for dredged material disposal would be determined based on the character of the materials dredged, the availability ofdisposal sites, and coastal conditions near the time of 28 Letter dated September 16, 2009 from NPS to NCDOT B-2500 Revised Final Section 4(f) Evaluation Page 28 B-28 construction. In addition, the terms and conditions outlined in the Biological and Conference Opinions (USFWS, 2008) related to piping plovers specify that "all dredge spoil excavated for construction barge access must be used to augment either existing dredge-material islands or to create new dredge- material islands for use by foraging plovers. This must be accomplished as per the specifications of the North Carolina Wildlife Resources Commission. " Greensheet Commitment 423. "Seabeach Amaranth. Since the favored habitat of the seabeach amaranth is highly ephemeral, a survey of the project area would be conducted for the habitat of this species at least one year prior to initiating bridge construction activities. It would occur as needed for each construction phase of the Phased Approach/Rodanthe Bridge Alternative (Preferred). " Greensheet Commitment 424. "Piping Plover. The NCDOT will implement the following nondiscretionary measures that include the terms and conditions outlined in the Biological and Conference Opinions (USFWS, 2008): a. All construction equipment and personnel must avoid all bird closure areas within the Seashore and Refuge. All future routine maintenance activities of bridge structures that would occur within or adjacent to current or future plover nesting areas must occur outside the nesting season (April I to July 15). All future repair work on bridge structures that would occur within or adjacent to current or future plover nesting areas must occur outside the nesting season (April I to July 1 5) unless emergency or human safety considerations require otherwise. In this event, the area must be surveyed for nesting plovers and avoided to the extent possible. b. During the construction ofPhases II, III and IV of the Phased Approach/Rodanthe Bridge Alternative (Preferred), keep all construction equipment and activity within the existing right-of- way. Do not moor any construction barges within 300 feet (91.4 meters) of the following islands: Green Island, Wells Island, Parnell Island, Island M1V, Island C, the small unnamed island immediately east oflsland C, Island D, and Island G (see Figure I in the Biological and Conference Opinions in Appendix E). c. All dredge spoil excavated for construction barge access must be used to augment either existing dredge-material islands or to create new dredge-material islands for use by foraging plovers. This must be accomplished as per the specifications of the North Carolina Wildlife Resources Commission. The point of contact is Sue Cameron at 910-325-3602. If the dredge material is used outside the current defined action area, the action area is assumed to be expanded to cover the beneficial placement of the material. d. To the maximum extent practical, while ensuring the safety of the traveling public, limit or avoid the use of road signs or other potential predator perches adjacent to plover nesting or foraging areas. Where signs or other structures are necessary, determine if alternative designs would be less conducive for perching on by avian predators (gulls, crows, grackles, hawks, etc.). For example, minimize or avoid the use of large cantilever signs in favor of smaller and shorter designs. In addition, the project will incorporate the most current BMPs to reduce habitat degradation from stormwater runoff pollution as a conservation measure. Phase I of the project will be built at least 125 feet (38.1 meters) farther west of the Bonner Bridge and currently occupied piping plover habitat. Temporary facilities such as haul roads that affect proposed piping plover critical habitat will be removed as soon as possible. " B-2500 Revised Final Section 4(f) Evaluation Page 29 B-29 Greensheet Commitment 425. "Sea Turtles (green sea turtle, leatherback sea turtle, and loggerhead sea turtle). The NCDOT will implement the following nondiscretionary measures that include the terms and conditions outlined in the Biological and Conference Opinions (USFWS, 2008): a. All construction equipment and personnel must avoid all marked sea turtle nests. Construction material and equipment staging areas must not be located seaward of the artificial dune. All future routine maintenance activities of bridge structures that would occur within or adjacent to current or future sea turtle nesting habitat, and which would require vehicles or equipment on the beach or the use of night lighting (excluding navigation lights required by the US Coast Guard), must occur outside the nesting season (May I to November 15). All future repair work of bridge structures that would occur within or adjacent to current or future sea turtle nesting habitat, and which would require vehicles or equipment on the beach or the use of night lighting (excluding navigation lights required by the US Coast Guard) must occur outside the nesting season (May I to November 15) unless emergency or human safety considerations require otherwise. In this event, the area must be surveyed for sea turtle nests and avoided to the extent possible. b. Provide an opportunity for the USFWS or an USFWS designee to educate construction contractor managers, supervisors, foremen and other key personnel and resident NCDOTpersonnel with oversight duties (division engineer, resident engineer, division environmental officer, etc.) as to adverse effects of artificial lighting on nesting sea turtles and hatchlings, and to the importance of minimizing those effects. c. During turtle nesting season (May I to November 15), use the minimum number and the lowest wattage lights that are necessary for construction. During turtle nesting season, portable construction lighting must be of the low-pressure sodium-vapor type. During turtle nesting season, utilize directional shields on all portable construction lights, and avoid directly illuminating the turtle nesting beach at night. During turtle nesting season, all portable construction lights must be mounted as low to the ground as possible. During turtle nesting season, turn off all lights when not needed d. For Phases II, III and IV of the Phased Approach/Rodanthe Bridge Alternative (Preferred), on the ocean side, design the bridge structure in a manner which will shield the beach on the east side from direct light emanating from passenger vehicle headlights. For the small portion ofPhase I over land on Hatteras Island, retrofit the bridge structure at the time that Phase H connects with Phase I. The specific design of the bridge will be developed in consultation with the USFWS prior to re-evaluation of the environmental document for Phase II. e. Avoid retrofitting the bridges and approach roads with permanent light fixtures in the future (excluding navigation lights required by the US Coast Guard). In addition, NCDOT does not anticipate the use of explosives during construction or demolition of the existing bridge. The NCDOT contractor will use pipeline or clamshell dredging, rather than a hopper dredge to minimize effects to sea turtles. No permanent light fixtures will be installed on the bridge or the approaches (with the exception of navigation lights as required by the US Coast Guard). " B-2500 Revised Final Section 4(f) Evaluation Page 30 B-30 • A Section 106 Programmatic Agreement (Appendix F) will be signed by the FHWA, State Historic Preservation Officer, and the Advisory Council on Historic Preservation. This Programmatic Agreement (to be finalized prior to the ROD) will resolve adverse effects to this historic property through mitigation measures specified in the draft Programmatic Agreement. Excerpts from this draft Programmatic Agreement pertinent to the Refuge include: I. Parallel Bridge Corridor Minimization/Mitigation Measures In order to facilitate planning and streamline development of plans for the Undertaking/Phase I, NCDOT shall, in consultation with the consulting parties, develop the following historic contexts to aid in historic planning for the parallel bridge corridor and possible heritage tourism initiatives. A. Ethnographical Context 1) NCDOT will work with the USFWS, SHPO, and NPS to compile an ethnographical context of the men and women that lived and worked in the general project area during the late nineteenth and early twentieth centuries. The context will focus on the area's watermen, fishermen, Civilian Conservation Corps, members ofgun or hunting clubs, and life saving station employees. NCDOT will be responsible for the following tasks. a. Gathering oral histories from surviving members of these groups or families. b. Conducting primary and secondary research regarding the activities of these groups. c. Compiling documentary materials and digitizing images. 2) NCDOT will produce a digital document which contains the recorded oral histories and documentary materials. NCDOT shall afford the USFWS, SHPO, and NPS an opportunity to review and comment on the draft digital document. If no comments are received from the USFWS, SHPO, and NPS within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the document. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. NCDOT shall deposit copies of the documentation with USFWS, NPS, SHPO, and the Historic Architecture Group ofNCDOT within three (3) years of the letting of the Phase I contract. B. Context for Tourism 1) NCDOT will work with the USFWS, SHPO, Aquariums, CHA, and NPS to compile a context for the Coast Guard and Life Saving stations, wildlife refuges, and other state and federal "outposts" on North Carolina's Outer Banks. 2) NCDOT will produce a digital document which synthesizes the histories and documentary materials associated with the various sites. 3) In addition, NCDOT will prepare the artwork and text for a brochure that could be used by travelers and residents as a guidebook to locate and understand the significance of the various sites and their place in history of the Outer Banks and the state. 4) NCDOT shall afford the USFWS, SHPO, Aquariums, CHA, and NPS an opportunity to review and comment on the draft brochure. If no comments are received from the USFWS, SHPO, Aquariums, CHS, and NPS within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the brochure. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. S) NCDOT shall deposit copies of the documentation and brochure artwork and text with USFWS, SHPO, Aquariums, CHA, and NPS within three (3) years of the letting of the Phase I contract and will provide 50, 000 brochures to tourism organizations such as Historic Albemarle, Coastal Guide, NC Northeast Commission, Outer Banks Visitors Bureau, and state visitor centers. II. Pea Island National Wildlife Refuge A. Bridge Design B-2500 Revised Final Section 4(f) Evaluation Page 31 B-31 Currently, the bridge rail is proposed as a 32-inch concrete parapet with 2-bar, metal rail atop the parapet. Prior to completion of the final design for the Undertaking/Phase I bridge structure within the Pea Island National Wildlife Refuge, NCDOT shall afford the SHPO, USFWS, and NPS an opportunity to review and comment on the plans and specifications for the parapet and bridge rail for NC 12. If no comments are received from the SHPO, USFWS, or NPS within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the proposed design. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. B. Management ofNC 12 NCDOT, in consultation with FWHA, USFWS, NPS, SHPO, and the North Carolina Coastal Geological Cooperative, will develop and implement sustainable techniques to protect NC 12 and subsequently ameliorate the adverse impacts to the Refuge and Pea Island. C. Copies of Technical Reports NCDOT will provide the USFWS and NPS with copies of the cultural resource technical reports previously produced by NCDOT to describe the historic architecture, historic landscape, terrestrial archaeology, and underwater archaeology investigations in the Undertaking/Phase I's Area of Potential Effects. NCDOT will deliver this information to USFWS and NPS within six (6) months of signing the PA. D. Sim NCDOT will provide and install signs within the Refuge, at locations coordinated with the USFWS and NPS, to direct people to the visitor's center and points of historical interest, including prominent Civilian Conservation Corps installations, within three (3) years of the letting of the Phase I contract. E. Exhibits and Kiosks 1) NCDOT will provide the USFWS and NPS with information about the historic significance and structural importance of Civilian Conservation Corps' work efforts in the Refuge for use in exhibits and kiosks that will be made available to visitors. 2) NCDOT will design and produce a custom kiosk at a location specified by the USFWS within three (3) years of the letting of the Phase I contract. The kiosk, like the signs mentioned in Stipulation C above, will be installed or built in a manner consistent with USFWS or the Refuge's Visitor Service Facility Standards. More specifically, NCDOT will research and design the interpretive panels; design the structure, provide funding for fabrication of the kiosk, and install the kiosk at the site. Prior to fabrication of the interpretive panels and kiosk structure NCDOT shall afford the SHPO, ACHP, and USFWS an opportunity to review and comment on the panels and structure. If no comments are received from the SHPO, ACHP, or USFWS within 30 days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the proposed design. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. 3) Once installed by NCDOT, it is the intention of USFWS to maintain the kiosks subject to the availability of appropriated funds ". and IV. Context Sensitive Solutions FHWA and NCDOT commit to utilizing the best practices and measures available at the time during the construction the Parallel Bridge and when implementing activities associated with Pea Island/NC 12 Transportation Management Plan to avoid and minimize all impacts to historic properties. " (former) Oregon Inlet US Coast Guard Station: • A Section 106 Programmatic Agreement (Appendix F) will be signed by the FHWA, State Historic Preservation Officer, and the Advisory Council on Historic Preservation. This Programmatic Agreement (to be finalized prior to the ROD) will resolve adverse effects to this historic property through mitigation measures specified in the draft Programmatic Agreement. Excerpts from this draft Programmatic Agreement pertinent to the Station include: B-2500 Revised Final Section 4(f) Evaluation Page 32 B-32 L Parallel Bridge Corridor Minimization/Mitigation Measures In order to facilitate planning and streamline development of plans for the Undertaking/Phase I, NCDOT shall, in consultation with the consulting parties, develop the following historic contexts to aid in historic planning for the parallel bridge corridor and possible heritage tourism initiatives. A. Ethnographical Context 3) NCDOT will work with the USFWS, SHPO, and NPS to compile an ethnographical context of the men and women that lived and worked in the general project area during the late nineteenth and early twentieth centuries. The context will focus on the area's watermen, fishermen, Civilian Conservation Corps, members ofgun or hunting clubs, and life saving station employees. NCDOT will be responsible for the following tasks. a. Gathering oral histories from surviving members of these groups or families. b. Conducting primary and secondary research regarding the activities of these groups. c. Compiling documentary materials and digitizing images. 4) NCDOT will produce a digital document which contains the recorded oral histories and documentary materials. NCDOT shall afford the USFWS, SHPO, and NPS an opportunity to review and comment on the draft digital document. If no comments are received from the USFWS, SHPO, and NPS within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the document. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. NCDOT shall deposit copies of the documentation with USFWS, NPS, SHPO, and the Historic Architecture Group ofNCDOT within three (3) years of the letting of the Phase I contract. B. Context for Tourism 6) NCDOT will work with the USFWS, SHPO, Aquariums, CHA, and NPS to compile a context for the Coast Guard and Life Saving stations, wildlife refuges, and other state and federal "outposts" on North Carolina's Outer Banks. 7) NCDOT will produce a digital document which synthesizes the histories and documentary materials associated with the various sites. 8) In addition, NCDOT will prepare the artwork and text for a brochure that could be used by travelers and residents as a guidebook to locate and understand the significance of the various sites and their place in history of the Outer Banks and the state. 9) NCDOT shall afford the USFWS, SHPO, Aquariums, CHA, and NPS an opportunity to review and comment on the draft brochure. If no comments are received from the USFWS, SHPO, Aquariums, CHS, and NPS within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the brochure. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. 10) NCDOT shall deposit copies of the documentation and brochure artwork and text with USFWS, SHPO, Aquariums, CHA, and NPS within three (3) years of the letting of the Phase I contract and will provide 50, 000 brochures to tourism organizations such as Historic Albemarle, Coastal Guide, NC Northeast Commission, Outer Banks Visitors Bureau, and state visitor centers. IIL (former) Oregon Inlet US Coast Guard Station A. Parking Lot and Access Road 1) NCDOT will make improvements (clearing sand and paving) to the access road (SR 1257) and parking area, if NCDOT needs these areas for staging. If and when the (former) Oregon Inlet Coast Guard Station becomes a viable facility and is open to the public, NCDOT will maintain SR 1257 to the standards of the North Carolina Secondary Road System. B-2500 Revised Final Section 4(f) Evaluation Page 33 B-33 2) For the purposes of this PA, staging areas are defined as (1) the storage of equipment or materials that are needed for the construction/demolition of the bridge over the Oregon Inlet and (2) the placement of temporary offices or trailers. 3) NCDOT shall insure access to the (former) Oregon Inlet Coast Guard Station during construction of the Undertaking (Phase I). B. Signs NCDOT will provide and install roadside signs to direct visitors to the station from Northbound NC 12 and Southbound NC 12 within one (1) month of the replacement bridge over Oregon Inlet being open to traffic. C. Exhibits and Kiosks NCDOT will provide Aquariums with information about the historic significance and structural importance of the Station for use in exhibits and kiosks, which will be made available to visitors. NCDOT will design and produce a custom kiosk at a location specified by Aquariums within three (3) years of the letting ofPhase I of the project. 1) More specifically, NCDOT will research and design the interpretive panels; design the structure, provide funding for fabrication of the kiosk, and install the kiosk at the site. 2) Prior to fabrication of the interpretive panels and kiosk structure NCDOT shall afford the SHPO, ACHP, and Aquariums an opportunity to review and comment on the panels and structure. If no comments are received from the SHPO, ACHP, or Aquariums within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the proposed design. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. 3) Once installed by NCDOT, Aquariums will maintain the kiosks. IV. Context Sensitive Solutions FHWA and NCDOT commit to utilizing the best practices and measures available at the time during the construction the Parallel Bridge and when implementing activities associated with Pea Island/NC 12 Transportation Management Plan to avoid and minimize all impacts to historic properties. " The SHPO has been engaged in the development of the new Preferred Alternative through participation as a Merger Team member. Rodanthe Historic District and Chicamacomico Life Saving Station: • Conceptual design modifications (Appendix C) were developed in order to minimize harm to these historic properties. Specifically, the southern endpoint of several alternatives was moved north of the historic district, which eliminated harm to these properties. • The SHPO has been engaged in the development of the new Preferred Alternative through participation as a Merger Team member. • The SHPO has requested to be engaged in the Partnership Agreement. Their participation will assist in future decision-making that lessens harm to these historic properties. Conclusion The Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative proposes to proceed with the construction of Phase I of the Parallel Bridge Corridor as soon as possible. FHWA and NCDOT propose to use approximately 3.08 acres of the Pea Island National Wildlife Refuge. This use is a best estimate that may change based on the contractor's final design. Following a ROD, the NCDOT will award a contract to a design- build contractor. The design-build contract will determine the exact alignment and pier placement for Phase I based on engineering design, construction techniques and coordination with the NCDOT, FHWA, NPS, USFWS and other environmental resource and regulatory agencies when developing the final design for the new Oregon Inlet bridge. The Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative does not include any action at this time on Hatteras Island beyond the limits of Phase L The study and selection of future actions on Hatteras Island beyond the limits of Phase I will be undertaken as follows: B-2500 Revised Final Section 4(f) Evaluation Page 34 B-34 When the coastal and environmental monitoring indicates a future problem for the transportation corridor, the Merger Team will convene for purposes of identifying an appropriate response strategy. Such response strategy(ies) will be culled from the alternatives currently studied (including the "No Action" Alternative as required by NEPA), as these represent the range of possible solutions. The Section 4(f) Evaluation will be reviewed to verify the status of Section 4(f) resources, the effect(s) of the proposed response strategies on the 4(f) resources, "use" determinations and, if necessary, a revised least overall harm analysis. If a later phase of the Preferred Alternative requires the use of Section 4(f) property, additional Section 4(f) analysis would be undertaken prior to FHWA's approval of the later phase. Thus, if FHWA approves the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative, an express commitment will be made in the ROD to complete additional Section 4(f) analysis before all later phases of the project are implemented, if the later phase would use additional Section 4(f) property. In addition, FHWA and NCDOT commit to coordinate with the USFWS-Pea Island National Wildlife Refuge and the NPS to develop a Partnership Agreement (or other mutually-agreed upon mechanism) to set up protocols to follow prior to NCDOT implementing future actions beyond Phase I. These actions 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. Future construction actions within the project corridor would be evaluated based on future conditions of resources in the project area in cooperation with the appropriate environmental regulatory and resource agencies and the public in a process stipulated in the Partnership Agreement. B-2500 Revised Final Section 4Cf) Evaluation Page 35 B-35 Appendix A: FEIS/Final Section 4(f) Comments Comments included in this Appendix are those received from the US Department of the Interior, the North Carolina State Historic Preservation Office and the Southern Environmental Laws Center. Other comments were received for the FEIS, but did not relate to Section 4(f) issues and are not included here. B-36 United States Department of the Interior OFFICE OF THE SECRETARY Washington, DC 20240 ?A?UH 3`1`?a ER 07/206 Gregory J. Thorpe, Ph.D. Project Development and Environmental Analysis North Carolina Department of Transportation 1548 Mail Service Center Raleigh, North Carolina 27699-1548 Dear Dr. Thorpe: P 1M?? R @ TAKE PRIDE' IVAMIERI A 9043.1 PEP/NRM The Department of the Interior (Department) has received the Final Environmental Impact Statement (FEIS) and Section 4(f) Evaluation for the NC-12 Replacement of Herbert C. Bonner Bridge (No. 11) over Oregon Inlet, Dare County, North Carolina. The FEIS identifies two replacement bridge corridors, the Pamlico Sound Bridge Corridor and the Parallel Bridge Corridor. Within each corridor are various alternatives. The Preferred Alternative (the Phased Approach/Rodanthe Bridge) is among the Parallel Corridor alternatives. The Department and the Fish and Wildlife Service (FWS) have provided detailed comments on this project throughout the planning process; raising numerous concerns about the effects of Parallel Bridge Corridor alternatives (including the Preferred Alternative) on Pea Island National Wildlife Refuge (Refuge). While the FEIS does a better job of acknowledging our previously submitted comments, concerns still remain about the project and its potential impact to the Refuge. Rather than repeat those concerns here, the purpose of this letter is to succinctly state our views regarding the proposed project. Specific comments related to the Endangered Species Act of 1973 will be provided by the Service under separate cover. Pea Island National Wildlife Refugge Pea Island National Wildlife Refuge encompasses 5,834 acres of barrier island beach, dune, scrub, marsh, and open water habitat which support a diverse assemblage of Federal trust fish and wildlife resources. These include federally listed sea turtles and over 300 species of migratory birds. Given its location on a barrier island in the central portion of the Atlantic Flyway, the Refuge is of particular importance as a migratory stop-over and wintering site for numerous species of shorebirds, wading birds, waterfowl, passerines, and raptors. The Refuge is also prized for the wildlife-dependent recreational opportunities it provides to over one hundred thousand visitors per year. 1"he Refuge is extremely important on a local, regional, national, and international basis for both migratory birds as habitat and for humans who value knowing the birds have high quality feeding and breeding habitat. B-37 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. Although an elevated roadway through the Refuge would allow for westward sand migration to proceed unabated, issues such as lighting and disorientation of sea turtle hatchlings, and shading of sea turtle and migratory bird nests that require open, sun- heated sand would increase. We recommend NCDOT fully address measures or plans to off-set these new issues on the Refuge. Section 4(f) Evaluation Section 4(f) of the Department of Transportation Act of 1966, as amended (49 U.S.C. 303), states that the U.S. Department of Transportation may not approve the use of land from a significant publicly owned park, recreation area, or wildlife and waterfowl refuge, or any significant historic site unless a determination is made that: there is no feasible and prudent alternative to the use of land from the property; and the action includes all possible planning to minimize harm to the property resulting from such use. Even though the information presented in the FEIS and Section 4(f) Evaluation is proposing a Parallel Bridge Corridor alternative, it still demonstrates that implementation of any of the Parallel Bridge Corridor alternative may violate section 4(f) because the Pamlico Sound alternative would appear to be feasible and prudent and would minimize harm to the Refuge (a section 4(f) property). Though all alternatives have some form of 4(f) impact, the Preferred Alternative has far greater impacts in quantity and quality on lands protected by section 4(f). Based upon section 4(f) directives, park and refuge lands should not be used whenever there are feasible and prudent alternatives that would avoid or minimize harm to those lands. The NCDOT, in previous planning documents, has clearly demonstrated that the Pamlico Sound Bridge Corridor alternatives present feasible alternatives from an engineering standpoint. This reduces the analysis to the question of prudence, which seems to be only an issue of cost and visitor access. It was our understanding that throughout the planning process NCDOT indicated that although the Pamlico Sound Bridge Corridor alternative was more expensive initially, it would be comparable to the Parallel Bridge Corridor due to the extensive maintenance cost over the life of the project. We recommend an independent economic analysis of the alternatives be conducted because of the significant environmental effects and the fluctuating economics of the project. There appears to remain a distinct possibility that the Preferred Alternative will require activities to occur outside the existing right-of-way, which would constitute either a permanent or temporary use of 4(f) properties. More importantly, we disagree that z B-38 implementation of the Preferred Alternate as proposed in the right-of-way would not constitute a "constructive use" of 4(f) property. The 4(f) evaluation presents NCDOT's and FHWA's conclusions regarding the effects of the Preferred Alternative on the Refuge in terms of noise, visual character, access, and ecology; all section 4(f) constructive uses. In each case, it is our opinion that the analysis understates the magnitude of these effects in order to reach a conclusion (page 5-18) that "...attributes of the Refuge would not be substantially impaired, and thus would not be a constructive use of the Refuge." As stated repeatedly by the Service and the Department of the Interior throughout the planning process, in particular the noise, visual character, and access on the Refuge would be impacted by construction and operation of a bridge alternative through the Refuge. It is our opinion that these impacts rise to the level of substantial impairment as described in section 4(f) regulation 23 CFR 774.15. Noise: Noise resulting from vehicles traversing the elevated bridges would replace wind and surf as the prevailing sounds experienced by visitors and wildlife. Vehicles travelling on elevated structures such as bridges produce more tire-to-pavement noise than they do on an at-grade roadway. Also, exhaust noise will travel farther into the Refuge from an elevated point of origin. Pea Island National Wildlife Refuge was established in 1538 under an Executive Order to further the purposes of the Migratory Bird Conservation Act, and to serve "... as a breeding ground for migratory birds and other wildlife ....°' Increased noise levels may negatively impact bird breeding adjacent to the new bridge structure. Visual Character: The large, concrete bridges would replace dunes and water as the predominant visual features of the Refuge. We suggest that the FEIS plainly state that the Preferred Alternative would introduce a large elevated man-made structure (bridge) through the previously open vista on the Refuge landscape; causing negative impacts to the visual characteristics of the Refuge. Access: The Refuge offers a Visitor's Center that provides access to hiking trails and indoor and outdoor viewing areas. The Preferred Alternative would elevate NC-12 onto a series of bridges. Once completed, these bridges would traverse all but 2.1 miles of the Refuge. The FEIS places considerable emphasis on the ability of the Phased Approach to provide paved-road access to the Refuge. However, the FEIS understates the fact that the Preferred Alternative would not provide any vehicular access to the Visitor's Center or the impoundments, which are two of the major destinations for Refuge visitors. Also overlooked in the FEIS is the quality of the visitor experience that would be provided under the Preferred Alternative and the effect it would have on visitation. While the FEiS notes that respondents to surveys indicated that most would continue to visit the Refuge whether or not paved access were provided, it is unclear if the respondents understood that under the Preferred Alternative the afforded access would be very limited, and the activities they traveled to the Refuge in which to engage (bird watching, nature photography, fishing) would be occurring adjacent to or under a bridge. As a result, even though the Preferred Alternative would nominally afford access to the Refuge, the Visitor's Center would no longer be available, and we anticipate that the quality of the visitor experience would be degraded to the point that B-39 visitation may be reduced. This would represent a substantial loss to the American public. Ecology: Over the project's life, ocean shoreline erosion predictions will place the complex of bridges next to and over the beach habitat. The shading effect from the bridges will affect nesting, foraging, and roosting habitat quality for some migratory birds - piping plover, American oystercatcher, least tern, black skimmer, and nesting habitat quality for sea turtles. Section 4.7.8 of the FEIS, beginning on page 4-102, falls short of presenting a comprehensive analysis of project impacts on fish and wildlife resources inhabiting or using the Refuge and project area. Through careful selection and use of literature for general discussion of certain topics relative to impacts on wildlife from the project, there is a deflection of issues and concerns. For example the FEIS selectively cites literature regarding the minor effects of road-kill on wildlife species population demographics, and ignores literature that demonstrates the major effect road-kill has on species population demographics. Another point that should have been addressed is that some shorebirds move back and forth from the ocean beach to overwash fans or mudflats in the sound on a regular basis. The more often these species must fly near a highway, the greater the probability of their becoming a road-kill statistic. Elevating the roadway to a bridge 30-40 feet above grade within these areas of prime habitat will remove the road-kill potential from an at grade road, but it fails to mention that birds perch (sometimes en- masse) on bridge abutments, and when they land and take off, they will be doing so directly into bridge traffic. Some forms of mitigation have been shown to reduce avian mortality along bridges but this type of information is not mentioned in the FEIS; we recommend it be added. Refuge Compatibility and Policy NCDOT states in the FEIS that the project will be contained within the existing 100-foot- wide right-of-way. If all the proposed work (staging areas, construction, and future maintenance of existing NC-12) is performed within the existing right-of-way and is in compliance with any terms and conditions contained within the easement deed, a Refuge compatibility determination will not be required. However, we want to take this opportunity to re-express that we do not believe it will be possible to maintain the existing NC-12 corridor and construct the new bridges entirely within the existing right-of-way. We expressed this in a September 11, 2007, letter from DOI Acting Assistant Secretary for Fish and Wildlife and Parks Verhey to Governor Easley, "While the intent is to construct these new bridges within the exiting road's right- of-way, we believe the (preferred] alternative would require continued maintenance outside of the existing road's right-of-way through the Refuge until each subsequent phase of bridge construction along NC-12 is completed." The FEIS indicates that significant NC-12 maintenance activities (other than road scraping which occurs 1 to 2 times per month) currently occur 4 to 7 times per year. Based on our records, these activities occur outside the existing right-of-way (requiring 4 B-40 permits from the Refuge) 2 to 4 times per year and have been increasing in frequency. These activities include dune maintenance, dune reconstruction, dune translation (moving sand from the back side of the dune to the seaward side) and sand bagging. Given the scope of these activities and based on our experience in seeing these activities implemented in the past, it is unlikely that it will be possible to conduct these activities completely within the right-of-way, while being as efficient or effective as current practices. Also, we would like to remind you that by signing a Record of Decision on this FEIS, all previous SUPs for maintenance and repair of the existing at grade NC-12 would be nullified because the FEIS (now the National Environmental Policy Act (NEPA) document of record) clearly states NCDOT's intent to conduct all activities related to this project (including existing NC-12 maintenance and repair) within the existing right-of- way. If any work related to bridge construction, or maintenance, or existing NC-12 maintenance goes outside the existing right-of-way, you would need to re-comply with the Refuge's Appropriate Use Policy and Compatibility Policy. If the requested use is found to be appropriate and compatible, the Refuge is obligated to follow through with NEPA compliance, Section 7 Endangered Species Act compliance, and compliance with several laws relative to cultural and archaeological resources, including Section 106 of the National Historic Preservation Act. If the NCDOT is faced with an emergency, we have the ability to accelerate everything through the administrative process under emergency declarations. However, since we can reasonably anticipate storms, planning should occur now to avoid emergencies that can be reasonably anticipated. Even if the administrative processes can be suspended for the "emergency within the right-of-way," they can only be suspended by the Refuge Manager for 30 days and all corrective measures must be completed within that time frame. Full compliance with administrative regulations must follow the corrective action. The Terminal Groin The Service issued an SUP in 1989 to NCDOT for construction of the terminal groin for the purpose of protecting the existing Bonner Bridge. A new or revised SUP would be required to keep the terminal groin for a different bridge or purpose. In 2003, NCDOT and the Refuge decided to separate terminal groin issues from the Bonner Bridge replacement NEPA document. As you recall, the decision in 2003, was to defer planning on the terminal groin SUP renewal or on the removal of the terminal groin until a later date. An assumption inserted into the FEIS analysis involves the dependency of the Terminal Groin for the success of the Preferred Alternative. The discussion on page 3-65 is somewhat confusing and appears to be contradictory. First, the new parallel bridge appears to be designed (at least for this stage of planning) to have clearance for a much wider navigation zone. This would allow the Oregon Inlet channel to migrate to some extent without impacting navigation or the new bridge. The third paragraph actually states an assumption that the Corps of Engineers will terminate dredging the channel for the bridge navigation span with the implication being that the channel can move and maintain necessary depths through natural scouring and without impacting navigation. B-41 Further down on the page (next to the last paragraph) there is a statement that removal of the terminal groin would pose new challenges for maintaining the current navigation channel. This discussion leaves us unclear as to what the Preferred Alternative will actually involve. The navigation channel, old bridge, new bridge, and terminal groin are all in such close proximity that dredging in one spot versus another is likely to precipitate changes in an adjacent site including the navigation channel underneath the bridge. Basically, it appears that more analysis with regards to inlet dynamics and coastal processes is critical to further model development. Finally we note that NCDOT has not requested a new SUP to retain the groin. As mentioned above, there are many issues related to the groin that will need to be resolved before a new SUP could be issued. The FEIS does not provide sufficient basis for decision-making regarding those issues, and additional analysis will be needed. This would appear to be an area of considerable unresolved uncertainty. We appreciate the opportunity to provide these comments. The Department wishes to further coordinate with the NCDOT and FNWA at the earliest possible time in order to reach a solution to our issues and concerns. Coordination can be initiated by contacting Mike Bryant, Refuge Manager, Pea Island National Wildlife Refuge, at (252) 473-1131, extension 222, or Pete Benjamin, Project Leader, Raleigh Ecological Services Field Office, at (919) 856-4520, extension 11. Singerely, .. Willie R. Taylor Director, Office of Environmental Policy and Compliance b B-42 North Carolina Department of Cultural Resources State Historic Preservation Office Peter B. Sandbeck, .Administrator Michael I?. I :aslcy, Governor I.isbcth C: I vans, Secretary 1c1-frry 1. Crow, Deputy Secretary October 27, 2008 MEMORANDUM TO: Gregory Thorpe, Ph.D., Director Project Development and Environmental Analysis Branch NCDOT Division of Highways FROM: Peter Sandbeck ??? Officc of .Archives and History Division of Historical Resources David Brook, Director SliBJECT. Fuial Environmental Impact Statement & Section 4(0 Evaluation for the NC 12 Replacement of the Herbert C. Donner Bridge, B-2500, Dare County, FR 90-8304 We have reviewed the Final Environmental Impact Statement (FEIS) and Section 4(0 F valuation for the proposed undertaking and offer the following comments. The FEIS correctly identifies the historic properties within the undertaking's Area of Potential Effects (APE) as the (former) Oregon Inlet Coast Guard Station and Chicamacomico Life Saving Station, both of which are listed in the National Register of Historic Places as having national significance, plus the Pea Island National Wildlife Refuge and Rodanthe Historic District, which have been determined eligible for listing in the National Register. The FEIS also addresses the absence of archaeological resources within the APE and commits to identifying and assessing any unanticipated archaeological discoveries encountered west of Bodie Island during construction. The determinations of effects, on the historic properties, for the two bridge corridors and the various alternatives within each corridor are also properly noted in the sections dealing with historic properties, including the determination that the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge (Preferred) will adversely, affect all of the historic properties. Given the adverse effect determinations, the Federal Highway Administration (FIIWA), North Carolina Department of Transportation (NCDOT) and State Historic Preservation Office (HPO) have entered into consultation under Section 106 of the National Preservation Act. Due to the high level of controversy regarding the recommended alternative and its potential to have substantial impacts on important historic properties, the Advisory Council on Historic Preservation (ACHP) is participating in the consultation to develop a Memorandum of Agreement (MOA) to mitigate the adverse effects of the undertaking on the historic properties. To that end the consulting and concurring parties met in Manteo on July 10, 2008 and joined in conference calls on October 10 and 20, 2008 to discuss the parties' concerns and explore mitigative measures. We understand FHWA's goal is to conclude the consultation and have a fully executed MOA to include in the December 15, 2008, Record of Decision. Location: 109 Fast Jones Street, Raleigh NC 27601 Mailing Address: 4617 Mail Service Center, Raleigh NC 27699-4617 Telephone/Fax: (919) 807-65701807-6599 B-43 B-2500, Dare CountNT October 27, 2008 Page 2 Having carefully reviewed the Final Section 4(f} Evaluation, we do not concur with FI-IWA's finding that the proposed undertaking will not constructively use historic properties. The document notes that the Preferred Alternative will have a "Sizeable visual intrusion into the landscape of the Refuge and views in Rodanthe will be affected." It also notes that one mile of bridge in Rodanthe would bisect the community and make access more circuitous. (Table S-l, page xii). In the case of Pea Island Wildlife Refuge, the construction of a ten-mile long bridge, elevated thirty feet above ground level and topped with a nearly five-foot railing (and perhaps with an additional six-foot high, chain-funk fence as suggested by the Refuge during the Section 106 consultation), will introduce a substantial visual intrusion that is antithetical to the historic landscape. Determined eligible for listing in the National Register under Criterion A in the areas of conservation and social history, the Refuge is an outstanding example of the national wildlife refuges created in the early 201h and associated with efforts of the Civil Conservation Corps to protect and revitalize natural resources. Retaining its key original elements and integrity of location, setting, materials, feeling and association, the Refuge as a historic landscape will not only be adversely affected, it will be substantially, visually impaired by the presence of a bridge of the height and length proposed with the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge (Preferred). While the bridge may not eliminate the Refuge's ability to function as a wildlife refuge, it will destroy its integrity as a historic landscape. Similarly, the introduction of a thirty-foot elevated bridge with flanking one-way frontage roads in the Rodanthe Historic District will not only adversely affect the historic district, it will substantially impair the characteristics which make the district eligible for listing in the National Register. The district, which is comprised of one and two-story buildings that are linked by their association with and views to the National Register-listed Chicamacomico Life Saving Station, will be completely dominated by the bridge proposed as part of the Preferred Alternative. Views to the Pamlico Sound, which are part of the historic viewshed from the station's tower and are still an important part of the visitor's experience will be destroyed as will the visual relationships between the district's contributing buildings. In an effort to minimize the degree of impairment caused by the proposed bridge, the Final Section 4(f) Evaluation suggests that modem development adjoining the district has already diminished this connection. However, the photographs in the Finding of Adverse Effect Documentation, prepared by the NCDOT Historic Architecture and Landscapes Section for the undertaking, clearly illustrate that this connection exists today and that a nearly three-story bridge will dwarf the one and two-story buildings that make up the historic district. In addition to bisecting the historic district and making access more circuitous, the bridge will block the motorist's view of the historic district, especially the life saving station, which depends in large part on tourists' seeing the building from a distance and stopping to visit. While sigmage to the site will be part of the MOA for the adverse effect of the undertaking on the historic lifesaving station, the value of someone's seeing the iconic building from the road and being able to easily pull over to visit the site cannot be over-estimated. With the new bridge, the building will not be visible from either the north or south approach. Further, if a driver traveling north misses the signed turn, he will have to travel another mile north before being able to make a U- turn so as to travel back another mile to turn left onto the frontage road. Or, traveling south and missing the sign for the station, a driver will have to travel further south, turn around and travel north again to access the frontage road. Having reached the frontage road, the traveler will have to drive along the one-way road with the bridge looming on the west - hardly the setting or feeling that one associates with a lifesaving station that historically had a 360° view of its surroundings. Given the serious access problems and visual impacts caused by the proposed bridge, we believe that the Preferred Alternative substantially impairs the functions, features and attributes of the Rodanthe Historic District and Chicamacomico Life Saving Station and, thereby, constitutes a constructive use of the historic properties. B-44 P-2500, Dare Counts. October 27, 2008 Page 3 We would finally= note that we understand from discussions with the Merger Team and as outlined in Section 2.15 - Preferred Alternative, that there will be an opportunity to explore possible adjustments in the alignment and specific plans for Phases II-IV in order to address changes that may occur in the project area due to its dynamic and unpredictable nature, especially in the undertaking's APE for the historic properties. The above comments are made pursuant to Section 106 of the National Historic Preservation Act and the Advisory Council on Historic Preservation's Regulations for Compliance with Section 106 codified at 36 CFR Part 800. Thank you for your cooperation and consideration. If you have questions concerning the above comment, contact Renee Gledhill-Farley, environmental review coordinator, at 919-807-6579. In all future communication concerning this project, please cite the above referenced tracking number. cc: Jeffrey Crow, SHPO Clarence Coleman, FHWA Mary= Pope Furr, NCDOT Carol Legard, ACF IP Ken Wenberg, CHA Rick Kanaski, USFWS Doug Stover, NPS David Griffin, NC Aquarium Bill Biddlecome, USACE Terry Wheeler, Dare County State Clearinghouse B-45 SOUTHERN ENVIRONMENTAL LAW CENTER 200 WEST FRANKLIN STREET, SUITE 330 Charlottesville, VA CHAPEL HILL, NC 27516-2559 Chapel Hill, NC Telephone 919-967-1450 Atlanta, GA Facsimile 919-929-9421 Asheville, NC selcnc@selcnc.org October 27, 2008 Sewanee, TN VIA ELECTRONIC MAIL, FAC:SIMILF. AJVL FIRST CLASS MAIL Dr. Gregory J. Thorpe Project Development and Environmental Analysis Branch North Carolina Department of Transportation 1548 Mail Service Center Raleigh, NC 27699-1548 Fax (919) 733-9794 Re: Final Environmental Impact Statement and Section 4(f) Evaluation NCDO`1' TIP Project Number B-2500, Bonner Bridge, Dare County, NC Dear Dr. Thorpe: The following comments on the above-referenced Final Environmental Impact Statement and Section 4(f) Evaluation ("FEIS") are submitted on behalf of the Southern Environmental Law Center, National Wildlife Refuge Association, Environmental Defense Fund, Defenders of Wildlife, The Wilderness Society, Audubon North Carolina, North Carolina Wildlife Federation, and Pamlico Tar River Foundation. After reviewing the Supplement, the SDEIS, associated scientific research and the FEIS, we continue to support the Pamlico Sound Bridge alternatives and do not agree that any of the alternatives that utilize the Parallel Bridge corridor, including the preferred alterative, the Phased Approach, are viable alternatives. Our comments are focused on our numerous concerns about the adequacy of review of the environmental impacts associated with the Phased Approach and related compliance with the National Wildlife Refuge System Improvement Act, Section 4(f) of the Department of `transportation Act of 1966, and the National Environmental Policy Act ("NEPA"). As discussed in more detail below, the FEIS is inadequate and the project cannot go forward as planned for the following reasons: The Phased Approach fails to comply with the National Wildlife Refuge System Improvement Act. That Act requires NCDOT and FHWA to demonstrate that bridge replacement is compatible with the purposes of Pea Island National Wildlife Refuge. Yet, the Phased Approach cannot comply with that requirement; the Pamlico Sound Bridge alternative is the only compatible alternative. 100% recycled paper B-46 2. The FEIS's Department of Transportation Act of 1966 section 4(f) analysis is inadequate. First, NCDOT erroneously concludes that the Phased Approach will not "use" Refuge lands because it will operate within the existing NC Highway 12 easement. As a result, NCDOT's erroneous determination that the Phased Approach will not use the Refuge impermissibly skews the evaluation of the factors in the "least overall harm" analysis. In addition, the Section 4(f) Evaluation of the Phased Approach's impacts does not provide the decisionmaker with sufficient information to engage in a meaningful least overall harm analysis required by Section 4(f). 3. The FEIS violates NEPA by failing to adequately assess the environmental impacts from the Phased Approach. To comply with NEPA, the FEIS must thoroughly and objectively analyze the environmental consequences of the alternatives, but the FEIS's analysis of the environmental impacts of the Phased Approach fails to do so. The FEIS also fails to identify a preferred alternative and instead selects a preferred alternative without adequate review of all its foreseeable environmental impacts. The FEIS also fails to evaluate the ecological needs of the Refuge and the manner in which the Phased Approach interferes with the beneficial processes of this dynamic shoreline. 4. The Phased Approach fails to address public access to the Refuge. 5. The Phased Approach may not be able to be funded or comply with state or federal legal requirements. 6. Because the terminal groin is an essential component of the Phased Approach, the effects from its removal or retention must be addressed in the FEIS, and a compatibility determination and 4(f) determination are required. The FEIS fails to do so. Moreover, it is unlikely that retention of the terminal groin could be found to be compatible. OVERVIEW: Pea Island National Wildlife Refuge ("Pea Island Refuge") is at the core of the debate about the Bonner Bridge replacement. Established in 1938 by Executive Order, Pea Island Refuge is a "refuge and breeding ground for migratory birds and other wildlife." Exec. Order No. 7862, 3 Fed. Reg. 734 (Apr. 12, 1938). Pea Island Refuge is separated from North Carolina's mainland by marshes and Pamlico Sound and lies on the north end of Hatteras Island. Hatteras Island and Oregon Inlet are part of a dynamic barrier island system and the Pea Island Refuge relies on this dynamic process for ecological viability. Pea Island Refuge is subject to ocean overwash, high shoreline erosion rates, inlet formation, and other impacts associated with large storm events, sea level rise, and general barrier island dynamics. While many of these natural processes are incompatible with transportation corridors, they are beneficial to the abundant wildlife and 2 B-47 are instrumental in creating nesting habitat, feeding grounds, and other natural habitats. Hundreds of thousands of migratory birds, including the greater snow goose and other migratory waterfowl, migrating shorebirds, raptors, wading birds, and migratory songbirds, use Pea Island Refuge. And Pea Island Refuge manages approximately 1,000 acres of waterfowl impoundments for the benefit of migratory birds. Also, Pea Island Refuge has 13 miles of ocean beach that provide nesting habitat for loggerhead sea turtles, green sea turtles, piping plover, and several species of shorebird. These tremendous natural resources draw tourists, anglers, birders, and other outdoor enthusiasts. Many members of our organizations regularly recreate and enjoy the natural resources of Pea Island Refuge. As the FEIS acknowledges, a long-term solution to the problems posed by locating transportation corridors within this volatile system is necessary to meet the purpose and need of the Bonner Bridge replacement project. The purpose and need as stated in the FEIS is: (1) Provide a new means of access from Bodie Island to Hatteras Island for its residents, businesses, services, and tourists prior to the end of the current Bonner Bridge's service life; (2) Provide a replacement crossing that takes into account natural channel migration expected through the year 2050 and provides flexibility to let the channel move; and (3) Provide a replacement crossing that will not be endangered by shoreline movement through the year 2050. FEIS at 1-6. While the purpose and need has been narrowed from the goals established by the Outer Banks Task Force, the FEIS purpose and need does reflect the dynamic nature of Oregon Inlet and the project area shoreline. i The Phased Approach, however, cannot meet the purpose and need or the Outer Banks Task Force objectives because it fails to protect NC 12 from shoreline movement during the project life, fails to take into account channel migration and to let the channel move, and fails to preserve the natural barrier island system. The Phased Approach will have significant effects on Hatteras Island and the transportation corridor cannot be maintained safely and efficiently within this dynamic environment. The Phased Approach attempts to continue to maintain a fixed transportation corridor on a shifting barrier island at the cost of public safety, reliability, and ecological protection. Furthermore, the Phased Approach is not compatible with the purpose of the Pea Island National Wildlife Refuge, pursuant to the National Wildlife Refuge System Improvement Act, nor is it a viable alternative pursuant to Section 4(f) of the Department of Transportation Act of 1966. As discussed in greater detail below, the Pamlico Sound Bridge is the only alternative that will work and can be authorized pursuant to applicable federal laws. NC 12 and its associated maintenance are steadily degrading the Refuge, and the Phased Approach does not protect against this degradation. As discussed more fully below, the Phased Approach is not a viable, or lawful, alternative. The Phased Approach would keep NC 12 under construction for the life of the project as short bridges are ' Through the Outer Banks Task Force, state and federal agencies determined that the long-term goals for this area were (1) to preserve the natural barrier island system; (2) minimize impacts to Hatteras and Ocracoke islands; and (3) maintain access top and on the islands so that the transportation system is safe, efficient, and has minimal impact on the environment. SDEIS at 2- 15. B-48 perpetually built through the Refuge north of Rodanthe. Furthermore, the "phased" short bridge locations are estimated based on current shoreline erosion and inlet formation predictions. Shoreline changes, however, are often episodic in nature and are difficult to predict precisely. An inlet could form or the shoreline erode prior to or during a planned construction phase. Also, the effect of climate change has not been adequately evaluated. Any increase in storm intensity and/or sea level rise may cause substantial revisions to the current predictions, further exacerbating the uncertainty associated with predicting inlet/breach locations and timing. The FEIS attempts to respond to this natural uncertainty by proposing a monitoring program and by acknowledging that some of the phases may be different than those evaluated in the FEIS. This proposal, however, amounts to a blank check that cannot pass legal scrutiny. Even if the Phased Approach could be completed in a manner compatible with the dynamic shoreline, the final project is a long bridge on the beach and in the Atlantic Ocean. As the FEIS acknowledges, the Phased Approach would substantially interfere with fishing, surfing, and other beach activities and will severely limit and reduce access to the Refuge. In contrast, the Pamlico Sound Bridge is safer, more reliable, and more protective of the environment. The Pamlico Sound Bridge would not be subject to ocean overwash, inlet formation, or erosion. It would allow the U. S. Fish and Wildlife Service to preserve and protect the Refuge and the associated wildlife. Furthermore, the Pamlico Sound Bridge is the only alternative that can be authorized pursuant to applicable federal laws. As explained in more detail below, the Phased Approach rests on faulty legal assumptions, inadequate economic analysis and flawed predictions about engineering around future coastal conditions within the project area. L The Phased Approach fails to comply with the National Wildlife Refuge System Improvement Act. A. NCDOT and FHWA must demonstrate that bridge replacement is compatible with the purposes of Pea Island National Wildlife Refuge. Congress passed the National Wildlife Refuge System Improvement Act ("NWRSIA") in 1997. According to the legislative history, the purpose behind NWRSIA is "to establish clearly the conservation mission of the System, provide clear Congressional guidance to the Secretary for management of the System, provide a mechanism for unit-specific refuge planning, and give refuge managers clear direction and procedures for making determinations regarding wildlife conservation and public uses of the System and individual refuges." H. Rep. No. 105-106 (May 21, 1997). In enacting NWRSAA, Congress stated: [I]t is the policy of the United States that - (A) each refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for which that refuge was established; ... (C) compatible wildlife-dependent recreational uses 4 B-49 are the priority general public uses of the System and shall receive priority consideration in refuge planning and management. 16 U.S.C. § 668dd(a)(3). Further, "[T]he Secretary shall - (A) provide for the conservation of fish, wildlife, and plants, and their habitats within the System; (B) ensure that the biological integrity, diversity, and environmental health of the System are maintained for the benefit of present and future generations of Americans." 16 U.S.C. § 668dd(a)(4) (emphasis added). "[T]he Secretary shall not initiate or permit a new use of a refuge or expand, renew, or extend an existing use of a refuge, unless the Secretary has determined that the use is a compatible use and that the use is not inconsistent with public safety." 16 U.S.C. § 668dd(d)(3)(A)(i). "`Compatible use' means a wildlife-dependent recreational use or any other use of a refuge that, in the sound professional judgment of the Director, will not materially interfere with or detract from the fulfillment of the mission of the System or the purposes of the refuge." 16 U. S.C. § 668ee. "Sound professional judgment" requires "a finding, determination, or decision that is consistent with principles of sound fish and wildlife management and administration, available science and resources, and adherence to the requirements of this Act and other applicable laws." 16 U.S.C. § 668ee. In addition to "sound professional judgment," the other major element of a compatibility decision is assessing whether the proposed use will "materially interfere with or detract from the fulfillment of the mission of the System or the purposes of the refuge." 16 U.S.C. § 668ee. According to the Fish & Wildlife Service's 2000 Final Compatibility Policy (65 Fed. Reg. 62484), which was announced concurrently with the implementing regulations: Inherent in fulfilling the System mission is not degrading the ecological integrity of the refuge. Compatibility, therefore, is a threshold issue, and the proponent(s) of any use or combination of uses must demonstrate to the satisfaction of the Refuge Manager that the proposed use(s) pass this threshold test. The burden of proof is on the proponent to show that they pass; not on the Refuge Manager to show that they surpass. Some uses, like a proposed construction project on or across a refuge that affects the flow of water through a refuge, may exceed the threshold immediately, while other uses, such as boat fishing in a small lake with a colonial nesting bird rookery may be of little concern if it involves few boats, but of increasing concern with growing numbers of boats. Likewise, when considered separately, a use may not exceed the compatibility threshold, but when considered cumulatively in conjunction with other existing or planned uses, a use may exceed the compatibility threshold .... The Refuge Manager must consider not only the direct impacts of a use but also the indirect impacts associated with the use and the cumulative impacts of the use when conducted in conjunction with other existing or B-50 planned uses of the refuge, and uses of adjacent lands or waters that may exacerbate the effects of a refuge use. 65 Fed. Reg. 62484, 62490 (Oct. 18, 2000) (emphasis added). Of particular significance is the policy's statement that cumulative, indirect, and direct impacts of the use in conjunction with other existing or planned uses of the refuge and uses of adjacent lands and waters are all to be considered in determining whether the ecological integrity of the refuge is maintained. Thus, in the case of Bonner Bridge, the Refuge Manager's compatibility determination of replacement of the bridge under any alternative must consider all the impacts related to both NC 12 and the subsequent construction of the Phased Approach. B. The Phased Approach cannot comply with the National Wildlife Refuge System Improvement Act. 1. Restricting the Phased Approach to the current NC 12 easement does not exempt the Phased Approach from a compatibility determination. The FEIS rests on the erroneous assumption that any activity can take place within the existing right-of-way and not trigger a compatibility determination. FEIS at xi. The National Wildlife Refuge System Improvement Act, however, directly contradicts this interpretation. As discussed above, the Act requires the Refuge Manager to consider direct, indirect, and cumulative impacts associated with existing or planned uses of the refuge and the impact on adjacent lands and waters. This analysis should include the effect on the Refuge from keeping NC 12 in its current location; the impact on the Refuge from construction spanning the life of the project; the impact on the Refuge from measures taken within the easement to address shoreline erosion or storm events; and impacts on the Refuge from the final Phased Approacha bridge that sits in the ocean and on the shore of the Refuge. The following excerpt from agency compatibility regulations addresses maintenance activities within an existing easement: (c) Existing right-of-ways. We will not make a compatibility determination and will deny any request for maintenance of an existing right-of-way which will affect a unit of the National Wildlife Refuge System, unless: the design adopts appropriate measures to avoid resource impacts and includes provisions to ensure no net loss of habitat quantity and quality; restored or replacement areas identified in the design are afforded permanent protection as part of the national wildlife refuge or wetland management district affected by the maintenance; and all restoration work is completed by the applicant prior to any title transfer or recording of the easement, if applicable. Maintenance of an existing right-of-way includes minor expansion or minor realignment to meet safety standards. 50 CFR 26.41 (emphasis added). 6 B-51 The maintenance of a transportation corridor within the Refuge physically jeopardizes the purposes of the Refuge. It adversely affects habitat and the ability of the Refuge to function as a natural system. The activities anticipated to occur with the Phased Approach are more significant and damaging than routine maintenance and this approach will not meet the National Wildlife Refuge Improvement Act's mandate that "the biological integrity, diversity, and environmental health" of the Refuge be maintained. 2. The Phased Approach cannot be found to be compatible. In our comment letter on the SDEIS dated December 9, 2005, we reviewed in detail the legislative history and current cases interpreting the National Wildlife Refuge System Improvement Act (Refuge Act). The Refuge Act continues to be pertinent to the discussion of additional alternatives, but for the sake of brevity that discussion is hereby incorporated by reference. The Phased Approach and any indirect or cumulative impacts associated with it are subject to a compatibility determination pursuant to the Refuge Act. The Refuge Act prevents any new use or expanded, renewed, or extended use of a refuge to be permitted, "unless the Secretary has determined that the use is a compatible use and that the use is not inconsistent with public safety." 16 U. S.C. § 668dd(d)(3)(A)(i). To be compatible, uses must preserve a refuge and promote the refuge system's mission. Accordingly, any use of the Refuge must be one that does not degrade the Refuge's ecological integrity nor interfere with its mission to provide a refuge and breeding ground for migratory birds and other wildlife. All indirect and cumulative impacts that arise from a refuge use must also be considered and determined to be "compatible." The Refuge Compatibility Policy clearly states: "The Refuge Manager must consider not only the direct impacts of a use but also the indirect impacts associated with the use and the cumulative impacts of the use when conducted in conjunction with other existing or planned uses of the refuge, and uses of adjacent lands or waters that may exacerbate the effects of a refuge use." 65 Fed. Reg. 62484, 62490 (Oct. 18, 2000). Because the Phased Approach, and the associated direct and indirect impacts, is a use of the Refuge that "materially interfere[s] with" and "detract[s] from the fulfillment of the mission of the System or the purposes of the refuge," it cannot be found to be compatible. 16 U. S.C. § 668ee. The Phased Approach directly impacts the Refuge. The Phased Approach will maintain a transportation corridor that bisects the Refuge for fifty years (the life of the project). During the life of the project the perpetual construction and associated noise and direct environmental impacts will degrade the Refuge resources, degrade wildlife habitat, and materially interfere with the purpose of the Refuge. The Phased Approach also will have significant indirect impacts. Because of the unpredictable nature of barrier island dynamics-including inlet/breach formation, shoreline erosion rates and locations, and sound side erosion-the Phased Approach will likely require "temporary" or "emergency" actions that will permanently and adversely affect the Refuge. As has been the case for 7 B-52 maintaining NC 12 in the past, these temporary measures include sand bags, beach nourishment, dune rebuilding, dune sprigging, fencing, and road relocation. As the FEIS admits, NCDOT has never conducted these emergency or maintenance measures within the existing right-of-way. In a letter to Governor Easley, the Department of Interior states: While the intent is to construct these new bridges within the existing road's right-of-way, we believe this alternative would require continued maintenance outside of the existing road's right-of-way through the Refuge until each subsequent phase of bridge construction along NC 12 is completed. Current information also indicates that all 4 phases would require at least 13 years of actual construction during a 28-year timeframe. Based on the information that the Service currently has, it is unlikely that we could find this alternative to be compatible with the purposes for which the refuge was established, as required under the Refuge Improvement Act. Letter to Governor Easley, dated September 11, 2007 (emphasis added) (a copy is attached). Yet the FEIS fails to evaluate the impact on the Refuge from these measures. Furthermore, all of these measures interfere with the natural barrier island dynamics that are necessary to sustain naturally the Refuge and the associated wildlife. These measures have severe affects on wildlife and habitat and are reasonably foreseeable indirect impacts associated with the Phased Approach. Finally, the final Phased Approach is a bridge in the Atlantic Ocean. This ocean-side bridge will be a new feature on the beach, which the FEIS fails to evaluate adequately. For example, an ocean-side bridge may affect erosion rates, inlet formation, ocean overwash, etc. Once these natural processes are interrupted, the bridge will impact migratory bird and other wildlife habitat. Although the FEIS refers to studies conducted on a pier, it is illogical to assume that a pier would have the same effects on the adjacent shoreline as a bridge that travels parallel to the shore for miles. The FEIS also acknowledges the disastrous impact from storms like Hurricane Katrina on bridges, but fails to analyze the increased impact on a bridge that would bear the brunt of an impact from a hurricane. For these reasons, the Phased Approach is not compatible with the Refuge. The FEIS incorrectly states that a compatibility determination is only necessary for "alternatives that use Refuge lands outside the existing easement." FEIS at xi. First, as discussed above, the Refuge Act specifically mandates that a compatibility determination consider the direct, indirect, and cumulative impacts on refuge land and any adjacent land or waters that affect the Refuge use. The Phased Approach will have direct and indirect adverse impacts on the Refuge and it is therefore subject to a compatibility determination. Furthermore, the NC 12 easement is not a carte blanche proclamation that allows NCDOT to pursue any action without respect for the Refuge Act. The Refuge Act itself recognizes that easements and right-of-ways may coexist on national wildlife refuges. Work within easements, however, may be limited by the Refuge Manager and may be subject to a 8 B-53 compatibility determination. For example, maintenance of an existing right-of-way is subject to review and approval by the U. S. Fish and Wildlife Service and is restricted to minor actions such as minor expansions or minor realignments to meet safety standards. See Final Compatibility Policy Pursuant to the National Wildlife Refuge System Improvement Act of 1997, 65 Fed. Reg. 62484, 62490 (Oct. 18, 2000). The Phased Approach's impacts on the Refuge are far from minor, include significant direct and indirect effects, and cannot be determined to be compatible. Furthermore, the FEIS fails to provide adequate information about how construction and maintenance could be restricted to the easement, which NCDOT has never done within the Refuge. The FEIS adds to this oversight with contradictory statements about activities outside the easement that could be part of future phases and maintaining that no work will occur outside the existing right-of-way. See e.g., FEIS at 2-96, 2-147, and 4-8. The FEIS is also inadequate because the information is not sufficient to prove that any of the Parallel Bridge alternatives, including the Phased Approach, could be compatible. North Carolina Department of Transportation and Federal Highway Administration have the burden to prove that a use is compatible. "Compatibility, therefore, is a threshold issue, and the proponent(s) of any use or combination of uses must demonstrate to the satisfaction of the Refuge Manager that the proposed use(s) pass this threshold test. The burden of proof is on the proponent to show that they pass; not on the Refuge Manager to show that they surpass." 65 Fed. Reg. 62484, 62490 (Oct. 18, 2000). Nothing in the FEIS proves that any Parallel Bridge alternative, including the Phased Approach, could possibly be found to be compatible and the NCDOT and FHWA have not met their burden of proof. The FEIS acknowledges that future phases may not be built; may include different components from a "mix and match" menu; and may not meet federal legal requirements. These difficulties are not adequately addressed within the FEIS and in essence create a carte blanche approach that cannot be compatible with the Refuge. And NCDOT cannot rely on the existing easement as a legal shield to a compatibility analysis. Finally, as discussed in section VI, infra, retaining the terminal groin is an essential part of the Parallel Bridge, and the impacts to the Refuge of retaining the groin must be considered in the compatibility analysis. According to the permit under which it was built, if the terminal groin is no longer required to protect the existing Bonner Bridge, it must be removed within two years. As discussed in section VI, though, if the groin is instead determined to be necessary to protect the new Parallel Bridge and it is retained, it will have numerous adverse environmental consequences that are not compatible with the purposes of the Refuge. These consequences must be considered in the compatibility analysis. C. Only the Pamlico Sound Bridge alternative complies with the National Wildlife Refuge System Improvement Act. The continued use of NC 12 thru the Refuge is a use that is subject to a compatibility determination. As discussed above, NCDOT and FHWA must demonstrate that a bridge replacement alternative is compatible with the Refuge's purpose or it cannot 9 B-54 be permitted. The proposed construction of a bridge within the existing right-of-way is not a sufficient legal bar to a compatibility determination, despite the FEIS's unsupported statements to the contrary. None of the Parallel Bridge alternatives comply with the National Wildlife Refuge Improvement Act because the associated operation and maintenance of NC 12 and the subsequent construction of the Phased Approach interferes impermissibly with the Refuge's purpose. As explained in more detail below, the only compatible alternative is the Pamlico Sound Bridge. The key to compatibility is the mission of the National Wildlife Refuge System and the purpose of the Refuge. The NWRIA establishes wildlife conservation as the primary National Wildlife Refuge mission. "Inherent in fulfilling the System mission is not degrading the ecological integrity of the refuge." Final Compatibility Policy Pursuant to the National Wildlife Refuge System Improvement Act of 1997, 65 Fed. Reg. 62484, 62489 (Oct. 18, 2000). Recognizing that the ecological integrity of any national park or refuge in the project area is closely tied to the geological dynamic system, the National Park Services policy now requires that the Cape Hatteras National Seashore be managed to "support the natural processes of barrier island dynamics." The Refuge was established by executive order in 1938 as the Pea Island Migratory Waterfowl Refuge and its purpose is to be "a refuge and breeding ground for migratory birds and other wildlife." 3 Fed. Reg. 734 (Apr. 12, 1938). As discussed above, the Refuge supports a vast array of migratory birds, mammals, and threatened and endangered species. The Refuge provides important feeding and nesting grounds for the federally-listed piping plover and is a nesting area for loggerhead and green sea turtles.2 Building any of the Parallel Bridge alternatives will directly, substantially, and adversely affect the continued utilization of the Refuge as a breeding ground for migratory birds and other wildlife and damage the ecological integrity of the refuge. In order to maintain NC 12 through the northern portion of Hatteras Island, which is a dynamic system with dramatic shoreline erosion and potential for new inlet formation, the needs of the wildlife refuge would be subsumed by the need to keep the road within the easement, fill in breaches, and develop an artificial dune system. Currently, the constant beach erosion and severe weather events result in continual maintenance to repair and protect the integrity of NC 12. Even if these activities could be confined to the existing right-of- way-and the FEIS provides no information about how that will be possible-continuing such invasive uses of Refuge land has significant adverse impacts on the Refuge. For example, the maintenance activities currently degrade the quality of habitat available for wildlife by preventing overwash, contributing to a degraded beach profile, and eliminating natural vegetation succession. In sum, the repair and maintenance of NC 12 degrades the ecological integrity of the refuge and harms the habitat of migratory birds and wildlife. These impacts will occur regardless of whether the maintenance occurs in or out of the existing right-of-way. As the FEIS acknowledges, "Oregon Inlet, Bodie Island, and Hatteras Island are part of a migrating barrier system characteristic of the southeast Atlantic Coast," which Additional comments on the endangered species impacts are included in later sections of this comment letter. 10 B-55 are characterized by variable and high erosion rates. FEIS at 3-51. The FEIS predicts that the shoreline will erode well into refuge land over the next 50 years. Although it is important to note that the FEIS relies on average annual shoreline erosion rates to predict future shoreline conditions, the average rate does not take into consideration the high annual variability of erosion and accretion. In other words, within a year a stretch of shoreline could erode 10 feet and accrete 5 feet and would only have an annual shoreline erosion of 5 feet. All Parallel Bridge corridor alternatives will require continual NC 12 maintenance and the FEIS does not adequately evaluate the impacts on the Refuge from conducting these activities within the right-of-way. Furthermore, NCDOT cannot provide adequate assurances that any future activities will indeed take place within the right-of- way. The FEIS does not commit to any particular Parallel Bridge corridor and explicitly states that the Parallel Bridge corridor alternatives can be mixed and matched and that each phase will be re-evaluated prior to construction. This amounts to a blank check and the FEIS fails to evaluate the alternatives adequately. Ultimately, none of these repair, maintenance, or construction methods can occur within the Refuge in a manner that is compatible with the Refuge purpose. Beyond shoreline erosion, the proposed project area is susceptible to large storm events, which dramatically shape the Refuge. "North Carolina coast is subject to two types of severe windstorms: extra-tropical northeasters and hurricanes. Northeasters, with accompanying high tides and waves, can rapidly erode the shoulders of Oregon Inlet. Northeasters are fairly common in this area, with between 30 and 35 hitting the coast each year. Hurricanes may be responsible for major events, such as inlet openings and closings and gorge shifts ..." FEIS at 3-55. For the purposes of the compatibility determination, these severe weather events perform important ecological functions and are beneficial to the Refuge. Transportation corridors, however, require protection from severe weather events. In protecting NC 12, the natural processes are stunted and the Refuge cannot fulfill its purpose. The Pamlico Sound bridge corridor allows the Refuge to manage its lands in such a way as to promote habitat creation and protection for the wildlife in the refuge. None of the Parallel Bridge alternatives allows sufficient flexibility for the Fish and Wildlife Service to manage the Refuge and therefore cannot be compatible. 11. The Department of Transportation Act of 1966 section 4(f) analysis is inadequate. Section 4(f) of the Department of Transportation Act of 1966 prevents a federal project from using publicly owned land unless "(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use." 49 U.S.C. § 303(c). When there is no feasible and prudent avoidance alternative, the regulation implementing Section 4(f) states that "the Administration may approve only the alternative that ... [c]auses the least overall harm," using a balancing of seven factors. 23 11 B-56 C.F.R. § 774.3 (c)(1) (emphasis added). The Final Section 4(f) Evaluation contained within the FEIS ("Section 4(f) Evaluation") determined that all project alternatives considered included some use of Section 4(f) property and that no feasible prudent avoidance alternative exists and proceeded to the least overall harm analysis. After purporting to engage in a balancing of the relevant factors, the Section 4(f) Evaluation determined that the Pamlico Sound alternatives would cause fewer impacts to most environmental resources, but that the Phased Approach would cause the "least overall harm." FEIS at 5-44. The 4(f) Evaluation prepared is insufficient for a number of reasons. First, it erroneously concludes that the Phased Approach will not "use" Refuge lands simply because it will operate within the existing NC 12 easement. Moreover, this erroneous conclusion skews the least overall harm analysis in favor of the Phased Approach, even though the Pamlico Bridge alternative is the sole alternative that bypasses the Refuge. In addition, the analysis of the Phased Approach's impacts on the Refuge is inadequate and does not provide the decision-maker with sufficient information to meaningfully engage in the least overall harm analysis required by Section 4(f). A. NCDOT erroneously concludes that the Phased Approach will not "use" Refuge lands because it will operate within the existing NC 12 easement. NCDOT asserts that the Phased Approach "stays completely within the existing easement within the Refuge and, therefore, does not constitute a use of the Refuge under Section 4(f)." FEIS at 5-29. NCDOT also asserts that the construction and maintenance of the Phased Approach will occur completely within the existing right-of-way on the Refuge. "The Phased Approach / Rodanthe Bridge Alternative (Preferred) would not require the use of any property from the Refuge because it would be constructed and maintained entirely within NCDOT's existing easement." FEIS at 5-18. Indeed, NCDOT posits that it will be able to accomplish "all construction activities, such as material/equipment deliveries, excavations, temporary shoring, pile driving, and erection of bridge girders" within the existing right-of-way. FEIS at 2-123. NCDOT fails to explain how it is feasible to construct and maintain an elevated bridge within the existing right-of-way, construct a service road, while maintaining the current NC 12 and cause no further encroachments into the Refuge. While it lists a host of activities that will allegedly occur contemporaneously within the refuge, the Section 4(f) Evaluation falls short of explaining how all construction equipment and activities, including pile driving and shoring, and construction of a temporary road are going to co-exist. NCDOT's Section 4(f) Evaluation also neglects to address the projected dune building and maintenance activities through 2030 that are integral to the Phased Approach (FEIS at 4-71, 4-72), much less explain how future dune building and maintenance also will stay within the easement and cause no further encroachment onto the Refuge. For example, the FEIS makes reference to smaller dunes of indeterminate size and unquantified impact which will purportedly be built within the easement on the Refuge, but the Section 4(f) Evaluation omits dune maintenance and building from the discussions 12 B-57 of Refuge use and Refuge impacts. Absent credible information to the contrary, it is infeasible that NCDOT will be able to accomplish all of the activities it proposes - new dune construction and maintenance, a temporary road, and constructing a bridge over forty-feet wide - entirely within the its existing easement. Hence, it is foreseeable that the Phased Approach will result in actual use of additional Refuge land. Assuming NCDOT feasibly could implement the Phased Approach within the bounds of the existing easement, the definition of "use" under 23 C.F.R. § 774.17 is broader than actual use. "Use" is not limited to physical takings and land acquisition, as is suggested by the Section 4(f) Evaluation's repeated reference to the Phased Alternative staying within the easement and thereby avoiding "use" of the Refuge. Rather, "use" for purposes of Section 4(f) encompasses certain temporary and constructive uses of protected land. See 23 C.F.R. § 774.17. Temporary occupancies are categorically excluded from "use" only if they satisfy all of conditions set forth in the regulation. 23 C.F.R. § 774.13 (d). NCDOT fails to address whether and what kinds of temporary occupancies associated with construction and maintenance under the Phased Approach, particularly those occupancies which may result in permanent adverse impacts on the Refuge, could potentially constitute a temporary occupancy adverse to the statute's preservation purpose and hence a "use" under Section 4(f) analysis. Even if NCDOT could carry out the Phased Approach within the existing easement and avoid any actual temporary uses, the Phased Approach's proximity impacts at a minimum will result in a "constructive use" of the Refuge: A constructive use occurs when the transportation project does not incorporate land from a Section 4(f) property, but the project's proximity impacts are so severe that the protected activities, features, or attributes that qualify a resource for protection under Section 4(f) are substantially impaired. Substantial impairment occurs only when the protected activities, features, or attributes of the resource are substantially diminished. 23 C.F.R. § 774.15 (a). The Section 4(f) Evaluation includes a constructive use section. However, that analysis appears to be an afterthought with a foregone conclusion. Having already concluded that the Preferred Alternative would not "use" Refuge land under the "Use of Section 4(f) Properties" analysis, and having determined the Phased Approach would cause the Least Harm (FEIS at 5-45), the NCDOT then turned to whether the Phased Approach would result in a constructive use of Section 4(f) property. The implementing regulations are clear that any constructive uses should be evaluated in accordance with 23 C.F.R. § 774.03, which encompasses the avoidance alternative / least harm analysis. See 23 C.F.R. § 774.15 (b). Instead, NCDOT divorced the constructive use determination from the broader "use" determination, reaching the conclusion first that its preferred option would not "use" Refuge land and would cause the least overall harm. Not surprisingly, NCDOT determined that the Preferred Alternative would cause "no substantial impairment," and hence no constructive use of Section 4(f) properties. In so 13 B-58 doing, NCDOT failed to give adequate consideration to the constructive uses of the Refuge caused by the Phased Approach. More fundamentally, within the constructive use analysis provided, NCDOT consistently reads the constructive use threshold more narrowly than the regulation provides in determining that the various proximity impacts do not amount to 4(f) "uses." The appropriate guidepost for constructive use throughout the regulation is "substantial impairment" of the property. As a literal reading of the phrase "substantial impairment" suggests, "Substantial impairment occurs when the activities, features or attributes of the 4(f) property are substantially diminished ... which means that the value of the resource in terms of its Section 4(f) significance will be meaningfully reduced or lost." Section 4(f) Policy Paper, Office of Planning, Environment and Realty Project Development and Environmental Review, US Department of Transportation - Federal Highway Administration (March 1, 2005) (emphasis added and internal citation omitted). For instance, in discussing potential proximity impacts of the Phased Approach, NCDOT determined that the vibration, visual, access and ecological impacts bridge within the Refuge under the Preferred Alternative will not prevent the Refuge from "continuing to function as a refuge." FEIS at 5-53. Similarly, in evaluating the impacts on Rodanthe's Historic District, NCDOT explained that the alteration of access would not detract from its eligibility for inclusion on the National Register of Historic Places. FEIS at 5-57. Proximity impacts need not completely eradicate the functioning of a Refuge or render a historical property ineligible for the listing in order to rise to the level of a constructive use. Total loss of the resource is not required; rather, meaningful reduction of the significance of the resource is sufficient for a proximity impact to amount to a constructive use. In addition, the Section 4(f)'s Evaluation's examination of specific proximity impacts as constructive uses fails to adequately assess ecological impacts and access restrictions of the Phased Approach in the Refuge. Ecological intrusion amounts to a constructive use the impact "substantially diminishes the value of wildlife habitat in a wildlife and waterfowl refuge adjacent to the project, substantially interferes with the access to a wildlife and waterfowl refuge when such access is necessary for established wildlife migration or critical life cycle processes, or substantially reduces the wildlife use of a wildlife and waterfowl refuge." 23 C.F.R. § 774.15 (e)(5). The Section 4(f) Evaluation generally fails to address the long-term ecological proximity impacts from permanently altering the landscape within the Refuge with the introduction of an elevated bridge and hardened piles, which will affect sand and water migration, erosion, and eventually habitat in the ocean hazard zone and offshore currents. Although the Section 4(f) Evaluation acknowledges, for example, the USFWS's request for additional studies on nighttime lighting effects on sea turtles, the effect on the piping plover as a result of an eventual offshore bridge, and an analysis for impact to habitat as a result of "scour, maintenance, placement of revetment or stabilizing structures and repair of bridge piles," it fails to assess these potential ecological impacts or anticipate the constructive use of the Refuge likely to result from these types of proximity impacts. 14 B-59 In addition, the Section 4(f) Evaluation completely omits an analysis of ecological impacts on the Refuge stemming from planned "short-term" dune construction and maintenance within the easement during implementation of Phased Approach, which is estimated to be completed by 2030. FEIS at 4-68 to 4-73. In fact, the Section 4(f) Evaluation ignores the dune construction and maintenance planned with the Phased Approach, and submits that the Phased Approach "would allow more natural coastal processes to occur by eliminating artificial dune construction and beach nourishment." FEIS at 5-52. This conclusion is not only inaccurate but underscores the inadequacy of the ecological impact analysis presented in the Section 4(f) Evaluation. The Section 4(f) Evaluation fails to consider whether and to what degree sand dune construction, maintenance, and the resulting interference with natural coastal processes will impact the Refuge and result in a constructive, if not an actual, use of Refuge lands that abut the easement. The Section 4(f) Evaluation similarly fails to adequately assess as a potential constructive use of the Refuge the impacts from significantly restricting access. The Section 4(f) analysis concedes, for example, that the Phased Approach would "limit access to the Refuge to two locations" (FEIS at 5-51) and would cause loss of access "to the Refuge Visitor Center, headquarters, and North Pond Trail with the Preferred Alternative." FEIS at 5-30. A restriction in access which substantially diminishes the utility of a significant publicly owned land is a constructive use. However, NCDOT dismissed this proximity impact because the restriction in access "would not eliminate the Refuge's ability to function." FEIS at 5-51. NCDOT misstates the applicable standard and fails to adequately assess the potential constructive use caused by the Phased Approach, which will cut off most access to the Refuge. Thus, NCDOT's determination that the Phased Approach will not "use" Refuge lands simply because it purportedly will operate within the existing NC 12 easement is based upon an incomplete analysis of actual or constructive uses of the Refuge and misapplication of the relevant standards. NCDOT neglects to explain how it is even feasible to accomplish implementation of a project of this magnitude within the confines of a 100-foot easement, and it essentially overlooks the significant proximity impacts to the adjacent Refuge and the resulting substantial impairment to the Refuge. Finally, the Section 4(f) Evaluation fails to acknowledge or assess the use of the Refuge that will result from retaining the terminal groin, which does not lie within the existing NC 12 easement. The retention of the terminal groin is an essential part of the Phased Approach that will require NCDOT to secure a new permit to retain it in its existing location on the Refuge, as discussed in section VI, infra. Although the Section 4(f) Evaluation mentions the terminal groin as it relates to the Coast Guard Station, concluding that the Pamlico Sound alternatives will adversely affect the Coast Guard Station by reason of removal of the terminal groin (FEIS at 5-20), the Evaluation does not analyze the extent of use and environmental impacts on the Refuge posed by permitting and retaining the terminal groin. 15 B-60 B. NCDOT's erroneous determination that the Phased Approach will not "use" the Refuge impermissibly skews the evaluation of the factors in the "least overall harm" analysis. The Least Harm Analysis and balancing of factors3 presented in the Section 4(f) Evaluation analysis relies upon the assumption that the Phased Approach will not result in a use of the Refuge. In evaluating the first two factors, the ability to mitigate adverse impacts and the relative severity of remaining harm, the Section 4(f) Evaluation explicitly relies upon the assumption that the Phased Approach will not use Refuge lands. According to the Section 4(f) Evaluation, "[s]ince the Pamlico Sound Bridge Corridor alternatives and Phased Approach/ Rodanthe Bridge Alternative (Preferred) are the only alternatives that avoid permanently incorporating land from the Refuge, the FHWA and NCDOT consider them to be substantially equal as the best options in terms of use of Refuge lands under the requirements of Section 4(f)." FEIS at 5-30. In the conclusion of the discussion of the first two factors, the Section 4(f) Evaluation again reiterates its reliance on the assumption that the Phased Approach will not use Refuge lands, stating: "The Phased Approach/Rodanthe Bride Alternative (Preferred) would be confined to the existing easement, reducing its potential impact by not using Refuge lands, providing for fishing access, minimizing protected species impacts, minimizing direct impacts to habitat, and allowing for shoreline erosion." FEIS at 5-35. In considering the third factor, the relative significance of each Section 4(f) property, the Section 4(f) Evaluation similarly relies upon the assumption that the Phased Approach will not use the Refuge. The Evaluation acknowledges that the Refuge is "the most significant resource in the project area." (FEIS at 5-44) and then notes that only the Phased Approach and Pamlico Sound alternatives "completely avoid a use of the Refuge." FEIS at 5-38. While the overall least harm analysis eventually concludes that as between these alternatives, the Pamlico Sound alternatives "would cause fewer impacts to most environmental resources, including the Refuge which it avoids completely," (FEIS at 5- 44), the entire least harm analysis is colored by the incorrect assumption that the Phased Approach will not "use" the Refuge and is somehow on relative near or equal footing in with the only options that truly avoid the Refuge, the Pamlico Sound alternatives. ' The least overall harm determination requires a balance of the following factors: (i) The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property); (ii) The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection; (iii) The relative significance of each Section 4(f) property; (iv) The views of the official(s) with jurisdiction over each Section 4(f) property; (v) The degree to which each alternative meets the purpose and need for the project; (vi) After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and (vii) Substantial differences in costs among the alternatives. 23 C.F.R. § 774.13 (c)(1). 16 B-61 C. Section 4(f) Evaluation of the Phased Approach's impacts does not provide the decisionmaker with sufficient information to engage in a meaningful "least overall harm" analysis required by Section 4(f). The least overall harm analysis suffers from the same deficiencies in the evaluation of ecological impacts already noted in use analysis. In the absence of information to accurately gauge the severity of the harm caused by the Phased Approach and the ability to mitigate those impacts, NCDOT cannot meaningfully evaluate the Phased Approach alongside the other alternatives. The Section 4(f) Evaluation fails to adequately assess the long-term ecological impacts which will result from permanently altering the landscape within the Refuge with the introduction of an elevated bridge and supporting structures. The Section 4(f) Evaluation does not provide a complete analysis of impacts on wildlife habitat caused by erosion, scour, sand migration, and maintenance and repair of the bridge. Furthermore, the Section 4(f) Evaluation and the least overall harm analysis omits any discussion of the potential environmental impacts from dune construction and maintenance planned over the course of the next two decades as part of the implementation of the Phased Approach. Having omitted this information, the least overall harm analysis reaches the untenable conclusion that the Phased Approach is among alternatives that allows for natural shoreline movement which also "would contribute to naturalizing this area of the Outer Banks, and benefiting wildlife in the Refuge." This conclusion highlights the hazard of undertaking an analysis with incomplete information. In addition there is no certainty in the Phased Approach with regard to the implementation of Phases 11, III, and IV, including when and whether these phases will be implemented. The Section 4(f) Evaluation fails to address the impact of incomplete implementation of the Phased Approach on the Refuge and the potential impact of ongoing sand dune maintenance, potentially into perpetuity. For all of these reasons, the Section 4(f) Evaluation submitted within the FEIS is inadequate and the conclusion reached therein is unfounded. III. The FEIS does not adequately assess the environmental impacts from the Phased Approach. A. To comply with NEPA, the FEIS must thoroughly and objectively analyze the environmental consequences of the alternatives. Under federal law, environmental impact statements serve two key purposes. The first is to require federal agencies thoroughly and objectively to investigate, evaluate and disclose environmental consequences associated with any major federal action in sufficient detail to assist the agencies in determining whether and how to proceed with a proposed action. See Nat7Audubon Soc y v. Dept of the Navy, 422 F.3d 174, 184 (4th Cir. 2005). The second is to provide the public with a full and accurate disclosure of the likely environmental impacts of a proposed action. In order to fulfill these purposes, the FEIS must describe the purpose and need for the proposed action, analyze the direct and 17 B-62 secondary environmental and economic impacts of a range of alternative means to fulfilling that purpose, and, if mitigation is proposed, analyze the effectiveness of the proposed mitigation. See 40 C.F.R. § 1502.1 (2005). B. The Phased Approach environmental impacts analysis is inadequate. Pursuant to NEPA, an Environmental Impact Statement ("EIS") is required to satisfy a number of statutory and regulatory requirements. It must consider all reasonably foreseeable significant adverse impacts of the proposed action and all reasonable alternatives to the proposed action. See 40 C.F.R. § 15022.22; 42 U.S.C. § 4332(C)(iii), (E); 40 C.F.R. § 1502.1. It must consider the cumulative, indirect and secondary impacts of the proposed action, including reasonably foreseeable expansions in the scope of the proposed action. 40 C.F.R. § 1502.16. All cooperating agencies have a mandatory duty to consider the environmental impacts of other "past, present, and reasonably foreseeable future actions." 40 C.F.R. § 1508.7. These regulations ensure that indirect, connected, cumulative and similar actions are properly considered in an EIS. The Phased Approach will have significant adverse impacts on the Refuge that the FEIS fails to evaluate adequately. All Parallel Bridge alternatives, including the Phased Approach, will be affected by shoreline erosion, inlet formation, and ocean overwash. The shoreline erosion and inlet formation evaluation is particularly pertinent in evaluating the Phased Approach. Because these events are episodic by nature, it is impossible to predict precisely when and where an inlet might form or erosion imminently threaten NC 12. Although it is impossible to predict dates and times, past experience and current modeling predict that NC 12 is subject to perpetual threats. The schedule for the "phased" bridges may or may not coincide with the natural movement of Hatteras Island or with predicted inlet formations. A bridge might be under construction when an inlet forms underneath it or an inlet may form prior to construction even beginning. The FEIS fails to analyze the reasonably foreseeable impacts to the Refuge from temporary or "emergency" measures taken to protect a phased bridge under construction or an area that is not slated for construction until decades after the threat. These temporary or emergency measures including, for example, sand bags, road relocation, beach nourishment, dune building (and rebuilding), all have permanent and adverse ecological impacts that severely affect biota, geology, and overall ecology of the Refuge. The FEIS without support states that these activities will take place within the existing right-of-way, but fails to recognize that these actions will still have an impact on the Refuge. The FEIS fails to provide adequate analysis of these environmental impacts of these activities. Finally, the final outcome of the Phased Approach is a bridge in the Atlantic Ocean. The placement of a bridge of this length and size on a dynamic shoreline raises many concerns. How will the bridge withstand the natural forces, including increased impacts from wind, in a manner that provides a safe and reliable transportation corridor? How will the presence of a bridge parallel to the shore impact long shore sediment transport, erosion rates, and inlet formation? The FEIS acknowledges that the bridge and 18 B-63 pile placement could have detrimental effects "including changes to water flow[,] sediment grain size[,] and topography.: FEIS at 4-107. The bridge and piles may increase shoreline erosion and create hot spots in addition to the five currently identified. The bridge and piles will affect waves and longshore sediment transport. All of these effects will prevent Hatteras Island from functioning as a natural barrier island system and will adversely impact wildlife and wildlife habitat on the Refuge. The FEIS relies on a single study of a pier and analogizes to the ocean-side bridge that is parallel to the shore. This analysis lacks substance and is inadequate. Furthermore, the FEIS erroneously asserts without analysis that the final Phased Approach corridor "would allow long-term natural shoreline movement." FEIS at xxv. Contradicting itself, the FEIS then states that a bridge in the ocean "would adversely impact the shoreline .... the outcome of coastal processes along the beach and wildlife, including protected species that use beach habitat." FEIS at xxviii. The FEIS fails to take a "hard look" at the adverse impacts from placing a transportation corridor within such a dynamic system. The Phased Approach instead avoids a hard look by proposing a monitoring program and by stating without evaluating that the future phases of the Phased Approach may incorporate any portion of any of the Parallel Bridge alternatives. C. The FEIS fails to identify a preferred alternative and instead writes a blank check without adequate review of all the foreseeable environmental impacts. The FEIS's proposed "mix and match" approach cannot be supported by the NEPA analysis. The "mix and match" approach assumes that any and every combination of impacts has been adequately analyzed. Unfortunately, this approach fails to recognize that each alternativebridges, nourishment, and dune building-will have different environmental impacts (direct, indirect, and cumulative) depending on the magnitude of the alternative (e.g. the total miles and location of nourishment), the sequence of chosen alternatives, the timing relative to shoreline changing events, and the scope and location of the initiating event (e.g. location and size of a breach or punctuated shoreline erosion). The FEIS inadequately evaluate the reasonably foreseeable environmental impacts and cannot support a "mix and match" approach. The FEIS cannot avoid the analysis by simply stating that these actions will be conducted within the existing right-of-way. D. The FEIS fails to evaluate the ecological needs of the Refuge and the manner in which the Phased Approach interferes with the beneficial processes of this dynamic shoreline. The FEIS inadequately analyzes the environmental impacts related to shoreline erosion and new inlet formation; endangered and threatened species; and impacts to wetlands. NCDOT mistakenly assumes in its analysis that natural shoreline movement is the equivalent of natural barrier island movement. Rather than allow the barrier island to move in a natural manner that promotes ecological sustainability of the system, wildlife habitat, and natural coastal processes, the Phased Approach will eliminate natural barrier island processes for both the short and long-term. The Phased Approach will not preserve the natural barrier island system or minimize impacts to Hatteras Island or maintain access 19 B-64 in a manner that has minimal impacts on the environment. FEIS at 4-167. Because it fails to analyze these beneficial processes of the environment within the project area, the Phased Approach analysis is inadequate. 1. Shoreline erosion, inlet formation, and ocean overwash The proposed project is located in an extremely dynamic coastal area, which includes an active tidal inlet (Oregon Inlet) and a coast subject to significant shoreline erosion and ocean overwash. Within the project area, NC 12 is subject to perpetual threats from the shoreline erosion and ocean overwash and because of the dynamic nature of the system is subject to regular maintenance. The FEIS does not adequately analyze the effects of shoreline erosion, inlet creation, and ocean overwash on the proposed project area. Rather, the FEIS neglects the beneficial impacts to the environment, as well as the ways in which these processes make the Phased Approach an inappropriate solution. We have attached a paper entitled, "North Carolina's Coasts in Crisis: A Vision for the Future," by S.R. Riggs, et al., which addresses the processes of barrier island formation, shoreline erosion, inlet creation, ocean overwash, climate change, and sea level rise, their beneficial effects on the environment, and their detrimental effects on infrastructure constructed on dynamic barrier islands. The paper is also available at: http://www.coastal.geology.ecu.edu/NOOOHAZ/downloads/Coasts%20in%20Crisis%20 Booklet.pdf). The authors have also penned a more detailed report entitled "NC Coasts in Crisis: A Case Study," which is scheduled for publication by the U. S. Geological Survey. One of the authors, Dr. Stan Riggs, has written a third paper entitled, "Eye of a Human Hurricane: Pea Island, Oregon Inlet, and Bodie Island, Northern Outer Banks, NC," which is scheduled to be published as part of a book by the Geological Society of America. Both papers offer greater technical and scientific detail on the inappropriateness of the Phased Approach in light of dynamic barrier island geography, climate change, and the predicted associated sea level rise. These two papers are scheduled for publication in 2009, and we ask that you refrain from issuing any Record of Decision until you have had a chance to receive and review them. a. Shoreline erosion The FEIS, by utilizing historic annual average erosion rates, may underestimate the amount of erosion that will occur and the projected shoreline movement through 2060 may be substantially conservative. In addition, sea level rise is also predicted to increase erosion rates. Finally, by utilizing an average erosion rate as a prediction tool for the shoreline, the FEIS fails to analyze adequately the importance of large or severe storm events in shaping the proposed project area. Although the effect of Hurricane Katrina and Hurricane Gustave on Gulf of Mexico barrier islands is still being evaluated, there is no doubt that major weather events shape the barrier islands. Historically, major storm events have a dramatic effect on the project area-creating inlets, increasing erosion. By failing to account for the impact from severe weather events, the FEIS arbitrarily 20 B-65 discounts the impacts of severe weather. Federal regulations require, however, that environmental impact statements analyze reasonably foreseeable catastrophic events, "even if their probability of occurrence is low." 40 C.F.R. § 1502.22 (2005). b. Inlet formation Inlets are very high energy and difficult to predict. As the FEIS accurately summarizes, experts have identified five potential inlet locations along Pea Island. The FEIS ignores, however, the beneficial impacts to the environment of natural inlet creation, migration, and closure. For example, during severe weather events, inlets act as release valves, allowing storm surge that has entered the sound to exit. Inlets also help to protect shallow sand shoals. C. Ocean overwash Ocean overwash is a natural and essential part of barrier island dynamics. Overwash moves sand to the sound side of barrier islands. Over long time scales, these processes enable barrier islands to respond to sea level rise by moving the island landward. On shorter, multi-year time scales, overwash processes deposit sand and cause landform changes, both of which are needed to maintain a healthy ecosystem for coastal plant and animal species. Because ocean overwash is detrimental to the transportation corridor, engineering practices such as artificial dune building, sand bags, and road scraping are used to prevent or respond to ocean overwash. This deprives barrier islands of the necessary resilience to respond to sea level rise and prevents habitat creation. The FEIS does not analyze the environmental benefits from removing the transportation corridor and allowing ocean overwash. 2. Endangered and threatened species The FEIS states that a parallel bridge corridor is likely to adversely affect the endangered leatherback sea turtle and piping plover and the threatened green sea turtle and loggerhead sea turtle. FEIS at 4-120, 4-122 to 123, 4-124, 4-125. To address the impacts on these species, NCDOT has agreed to take reasonable and prudent measures as authorized in the Biological and Conference Opinions (USFWS 2008). While the FEIS states that a parallel bridge corridor is likely to adversely affect these species, the Pamlico Sound Bridge alternative is not likely to adversely affect any federally protected species. FEIS at 4-138. The reasonable and prudent measures are not adequate to prevent impacts of a long-term construction schedule, as is proposed in the Phased Approach, required long- term nourishment, or any combination thereof. Furthermore, as discussed elsewhere, the Phased Approach impermissibly interferes with the Fish and Wildlife Service's ability to manage the Refuge for the benefit of these species. These measures are designed to offset immediate impacts and are wholly inadequate to address the substantive impacts from the Phased Approach. It is of particular concern that the FEIS proposes any mix and match of 21 B-66 short bridge construction, beach renourishment, and dune building. Each of these will have specific impacts on protected species, such as the piping plover and sea turtles, as well as impacts to the natural biota. Moreover, overwash is part of ecologically important inlet creation, migration and closure and over time, helps to create new moist sand intertidal feeding areas on the sound side. Without overwash, erosion continues to threaten sound side wetlands. Limited overwash leads to loss of piping plover sound side feeding habitat and nesting habitat and prevents natural maintenance of existing habitat by increasing vegetative succession. Furthermore, the Phased Approach may result in a steeper beach profile, reducing the available intertidal area. 3. Wetlands The various bridge alternatives assessed in the FEIS all impact wetlands and will require authorization under Section 404 of the Clean Water Act. The Pamlico Sound alternative impacts on wetlands and the aquatic environment are 4.18 to 4.84 acres of wetlands (depending on the terminus) including only .01 acres of CAMA wetlands. FEIS at 4-94. Of the alternatives assessed, the Parallel bridge/road north/bridge south alternative impacts by far the largest amount of wetlands: 78.2 acres of wetlands including 11.8 acres of CAMA wetlands. FEIS at 4-96. The parallel bridge/all bridge alternative impacts the second largest amount of wetlands: 12.3 acres of wetlands including 2.2 acres of CAMA wetlands. Id. The parallel bridge/nourishment alternative would impact an extensive but unquantified amount of wetlands and waters. While the FEIS states that this alternative would impact 4.3 acres of wetlands including .3 acres of CAMA wetlands, this estimate does not include extensive filling of near-shore waters associated with the required nourishment. Id. The FEIS states that 6.3 miles of beach will be nourished every four years. FEIS at 2-69. The Phased Approach would impact 3.1 acres of wetlands, including 0.3 acres of CAMA coastal wetlands. FEIS at 4-96. This lower wetland impact appears to be based on the assumption that sand movement will naturally fill wetlands prior to implementing "phases" that include wetlands that currently exist. FEIS at 4-97. This assumption fails to consider the impacts from construction of the phases and the timing of the phases. Construction impacts from the Phased Approach include constructing a service road that will be in service for decades. Also, when and where wetlands are naturally filled may or may not be within the same time frame as construction of the Phased Approach. Therefore, the FEIS may underestimate the wetland impacts by assuming that the Phased Approach will occur in coordination with the natural erosion and overwash cycle. Furthermore, if overwash occurs before a planned construction phase, the NC DOT will push back any sand to recreate dunes and to stabilize NC 12. This action prevents the natural filling of wetlands in the right of way, making it more likely that the actual construction of the Phased Approach will require the fill of jurisdictional wetlands. Again, these assumptions may underestimate the actual impact to wetlands from the Phased Approach. These impacts must be assessed and considered in the 404 permit review as a part of the Phased Approach per 33 C.F.R. § 325.1 (d)(2): 22 B-67 All activities which the applicant plans to undertake which are reasonably related to the same project and for which a DA permit would be required should be included in the same permit application. District engineers should reject, as incomplete, any permit application which fails to comply with this requirement. For example, a permit application for a marina will include dredging required for access as well as any fill associate with construction of the marina. 33 C.F.R. § 325.1 (d)(2). The FEIS summarily dismisses these impacts and fails to evaluate the total wetland impacts from the Phased Approach. Section 404(a) of the CWA, 33 U.S.C. § 1344(a), authorizes the Secretary of the Army, acting through the USACOE, to issue permits for the discharge of dredged or fill materials into wetlands or other waters. Section 404(b)(1) of the CWA, 33 U. S.C. § 1344(b)(1), directs the Environmental Protection Agency to issue guidelines ('404(b)(1) Guidelines") defining the circumstances in which dredged or fill material may be discharged into wetlands or other waters. The USACOE must deny applications for section 404 permits if the discharge that would be authorized by the permit would not comply with EPA's 404(b)(1) Guidelines. 33 C.F.R. § 320.4(a). The 404(b)(1) Guidelines prohibit issuance of a permit where: (i) There is a practicable alternative to the proposed discharge that would have less adverse effect on the aquatic ecosystem, so long as such alternative does not have other significant adverse environmental consequences; or (ii) The proposed discharge will result in significant degradation of the aquatic ecosystem ... ; or (iii) The proposed discharge does not include all appropriate and practicable measures to minimize potential harm to the aquatic ecosystem; or (iv) There does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with these Guidelines. 40 C.F.R. §230.12(a)(3). An alternative to discharge to a wetland "is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purpose." 40 C.F.R. § 230.10(a)(2). Where a discharge is proposed for a wetland or other special aquatic site, all practicable alternatives to the proposed discharge which do not involve a discharge to the wetland "are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). "[T]he applicant and the [Corps] are obligated to determine the feasibility of the least environmentally damaging alternatives 23 B-68 that serve the basic project purpose. If such an alternative exists ... the CWA compels that the alternative be considered and selected unless proven impracticable." Utahns for Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152, 1188-1189 (10th Cir. 2002). Furthermore, the total temporary and permanent biotic impacts (which include wetland impacts) from construction of either of the phased approaches are not insignificant (48.5 acres temporary biotic impact, FEIS at 4-91). The Pamlico Sound Bridge is a practicable alternative with the least impact on aquatic ecosystems and wetlands, and is the only alternative assessed in the FEIS that may be fully permitted under Section 404. IV. The Phased Approach fails to address public access to the Refuge. The FEIS identifies continued access to the Refuge as an area of concern. We support continued public access to the Refuge, as long as access is compatible with Refuge's mission. Access is not contingent upon maintenance of NC 12 and many public lands provide for public access in ways that are compatible with the nature of the public lands and associated resources. We strongly recommend that access be accommodated within a reasonable refuge management plan. The Phased Approach, however, will not provide compatible access and will severely limit or eliminate fishing, surfing, birding, and other resource dependent activities. Because the Phased Approach eliminates Refuge resources that create the need for adequate access, it is not a viable alternative. V. The Phased Approach may not be able to be funded or comply with state or federal legal requirements. The FEIS fails to identify a preferred alternative. Instead, NCDOT proposes to move forward with an initial phase-build a bridge substantially similar to the existing Bonner Bridge-and then monitor, evaluate, and implement additional phases on an indeterminate timeline. The initial phase standing alone cannot be legally permitted because it violates federal and state laws including NEPA and the National Wildlife Refuge Improvement Act. NCDOT and FHWA attempt to evade this legal hurdle by proposing additional phases, but fail to provide adequate specificity to analyze the alternatives or adequate legal assurances that any additional phases could be built. The FEIS explicitly states that the construction of future phases is dependent on funding, results of a shoreline monitoring program (currently undeveloped), and whether future phases can be permitted pursuant to federal and state law. Thus, future phases could be dramatically different or may not occur at all. Because this is a carte blanche approach, the NEPA analysis is inadequate and the Phased Approach does not meet legal requirements. The FEIS and the merger process acknowledge the legal uncertainties surrounding future phases. NCDOT's summary of the merger process which identified phase I of the Phased Approach as the least environmentally damaging practical alternative state, "[t]he agencies concur, based on information available today, they cannot conclusively say that permits or approvals will or will not be granted for these additional phases." The FEIS 24 B-69 also admits the permitting difficulties for additional phases ("Phases II to IV present substantial challenges to obtaining permit approvals."). By choosing the Phased Approach, NCDOT and FHWA have locked in place a transportation corridor that will need significant management for the life of the project and this management may not be permitted pursuant to federal or state law. To evade this legal box, NCDOT simply states that additional phases may or may not be built. This approach, however, ignores the natural environment of Hatteras Island-once phase I is built, NCDOT must continue the expensive and uncertain maintenance of NC 12. Whatever future measures are selected, NCDOT will be left with only options that either cannot meet applicable legal requirements or those that systematically destroy the Refuge. VL Because the terminal groin is an essential component of the Phased Approach, the effects from its removal or retention must be addressed in the FEIS and a compatibility determination is required. The current permit for the terminal groin is explicit that it is only valid for the protection of the "existing Herbert C. Bonner bridge" and the permit terminates once the groin is no longer used for that purpose. In anticipation of replacing Bonner Bridge, NCDOT has two options: (1) comply with paragraph (17) of the permit, which requires the removal of the terminal groin and restore the land to its original condition (2) or apply for a new permit to maintain the terminal groin in its existing location. In order to comply with federal law, a full NEPA analysis and a compatibility determination are required for either option. The FEIS states the terminal groin is an essential part of the Phased Approach and the Parallel Bridge but fails completely to assess the environmental impacts of retaining the groin. A. The FEIS is inadequate because the terminal groin is an essential part of the Phased Approach and the effects from either retaining it or removing it must be analyzed. The FEIS states that the terminal groin will be required to be retained as part of the Phased Approach. FEIS at 2-147. Because the terminal groin is an essential component of the Phased Approach, the FEIS must analyze the impacts from either retention or removal of the terminal groin. The CEQ Guidelines are clear: "proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement." 40 C.F.R. § 1502.4(a). Circumstances in which actions should be considered and evaluated together include: • the situation in which one action "automatically trigger[s]" another action, • the situation in which one action "cannot or will not proceed unless" another action is "taken previously or simultaneously," • the situation in which two actions "are interdependent parts of a large action," and 25 B-70 • the situation in which two actions have "cumulatively significant impacts .,,4 40 C.F.R. § 1508.25(a). Breaking such actions "`into small component parts" to avoid reviewing them together "is to engage in illegal `segmentation."' New River Valley Greens v. U.S.D. O. T., No. 97-1978, 1998 U.S. App. LEXIS 22127, **8-9 (4th Cir. Sep. 10, 1998) (quoting 40 C.F.R. 1508.27(b)(7)). A hallmark of segmentation is an initial proposed action involving "such a large and irretrievable commitment of resources that it may virtually force a larger or related project to go forward notwithstanding the environmental consequences." Id. Building the Parallel Bridge is one such "irretrievable commitment of resources" that will inevitably force later projects, even though their environmental effects are not analyzed in the FEIS. These later projects include the re-permitting of the terminal groin, as well as beach nourishment and relocation of NC 12 outside of the easement in response to storm events, if later phases are not funded and cannot be implemented, as appears to be likely. Each of the four bullet-pointed criteria above aptly describes the relationship of the construction of the replacement bridge (Phase I) to subsequent phases (the re-permitting of the groin as well as either Phases 11 through IV or, if the state fails to be able to fund them, then beach nourishment and relocation of sections of NC 12 as necessary in response to storm events and erosion). Accordingly, the failure to consider the effects of all the phases or projects together in one impact statement amounts to improper segmentation. The retention or removal of the groin will "significantly affect" the Refuge and the FEIS must address those effects. "Significantly" includes an evaluation of the context of the impact and the intensity of the impact. The intensity of the impact includes an analysis of such criteria as the unique geography of the site, the level of controversy surrounding the impacts, the uncertainty of the risks associated with the impact, whether the impact is related to other actions, and adverse affects on endangered or threatened species and associated habitat. See 40 C.F.R. §1508.27. The terminal groin significantly impacts the Refuge in many ways, including stopping the southward migration of the northern portion of Pea Island, producing sand accretion at the north end, and affecting down drift erosion along the Refuge. Not only are there important issues relating to groin induced erosion and whether the existing monitoring and mitigation requirements adequately address sand quantity issues, but there also are important questions regarding the quality and compatibility of sand that is placed on refuge beaches as part of a replenishment project. These direct affects impact the quantity and quality of habitat " An action will have a "cumulatively significant impact" if, although its individual effect is minor, its effect is "collectively significant" when considered together with "other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such action." Western N. C. Alliance v. N. C. D.O.T., 312 F. Supp. 2d 765, 771 (E.D.N.C. 2003) (emphasis in original). 26 B-71 available within the Refuge. Any action, either removing the terminal groin or issuing a new permit, will require an analysis of the impacts to the quantity and quality of the habitat for the migratory birds, sea turtles, and other wildlife for which the Refuge was established. Furthermore, the NCDOT must address the impacts from the connected project of replacing Bonner Bridge. NEPA requires considering the continued impacts from the terminal groin and any action that "cannot or will not proceed unless other actions are taken previously or simultaneously ... [or] are interdependent parts of a larger action and depend on the larger action for their justification." 40 C.F.R. § 1508.25 (a)(1). Likewise, an impact of the Phased Approach is the artificial dune that runs the length of Pea Island, with its adverse environmental impacts, will continue to exist until the roadway is replaced in phases by a bridge on pilings as discussed in the FEIS. The terminal groin is an essential component in the replacement of Bonner Bridge and impacts from the terminal groin are intertwined with impacts related to the Phased Approach or other Parallel approach alternatives. Indeed, we understand that the FHWA agrees that the terminal groin is an essential part of the Phased Approach Parallel Bridge and will not let federal funding for any part of the project until a new permit is issued to retain the groin. If this is true, however, FHWA has apparently been persuaded by NCDOT to segment the NEPA analysis for the groin retention. If so, FHWA should reconsider this position as it constitutes an acknowledged and unlawful segmentation of the NEPA analysis. B. The Section 4(f) Evaluation is incomplete because it fails to analyze the Refuge use and impacts resulting from retention of the terminal groin under the Phased Approach alternative. As discussed in section II(A), supra, the Section 4(f) Evaluation does not address the inevitable use of the Refuge that will result from retaining the terminal groin, which does not lie within the existing NC 12 easement. The encroachment and adverse impacts to the Refuge from the perpetual existence and maintenance of the terminal groin cannot simply be ignored in the Section 4(f) analysis. Failure to address the use of the Refuge resulting from retention of the terminal groin, which is integral to the Phased Approach, further underscores the inadequacy of the Section 4(f) Evaluation and the indefensibility of the conclusion reached therein, namely, that the Phased Approach is the least overall harm alternative. C. FWS must complete a compatibility determination for either retaining or removing the terminal groin and it is unlikely that retaining the terminal groin could be found to be compatible. As discussed in more detail above, federal regulations related to wildlife refuges have changed since the terminal groin was initially permitted. Congress passed the National Wildlife Refuge Improvement Act (Act) in 1997. The Act prohibits permitting a "new use of a refuge or expand[ing], renew[ing], or extend[ing] an existing use of a refuge," without a compatibility determination. 16 U.S.C. § 668ee. Because permitting 27 B-72 the terminal groin is a part of the proposed use of the Refuge for a bridge built in phases to eventually replace most of NC 12 through the Refuge, the compatibility determination must assess both the permitting of the terminal groin and the phased bridge construction through the Refuge. In order for the terminal groin to be retained, the compatibility determination must conclude that the long-term impacts associated with the tenninal groin and the connected replacement of the Bonner Bridge "will not materially interfere with or detract from the fulfillment of the mission of the System or the purpose of the refuge.' 16 U.S.C. § 668ce. The compatibility determination must be issued before a new permit and must fully consider the impact on wildlife habitat, including the recently designated piping plover critical habitat. Retention of the terminal groin will also result in adverse modification of designated piping plover critical habitat. The existing terminal groin occupies intertidal habitat that is important to wintering piping plovers. Removal of the groin as required by the pen-nit if no longer necessary to protect the existing Bonner Bridge will make this habitat available. Retention of the groin to protect a new Parallel Bridge will result in adverse modification of critical habitat. In addition. retention of the terminal groin will interfere with natural inlet processes that create habitat conditions that are beneficial to piping plovers. We recognize the need to replace Bonner Bridge and support construction ofa new bridge that provides dependable transportation to I latteras Island, is environmentally sound, and is economically reasonable. We support the Pamlico Sound Bridge corridor alternative and believe that it satisfies these objectives. Thank you for your consideration of our comments. LA Juhe Youngma Derb Carter Southern Environmental Law Center On behalf of. Desiree Sorenson-Groves Vice-President for Govennnent Affairs National Wildlife Refu?,,e Association Sarah Ilagedorn Ocean Scientist Environmental Dc1c11se Fund 28 B-73 Noah Kahn Federal Lands Associate Defenders of Wildlife Maribeth Oakes Director, Wildlife Refuge Program The Wilderness Society Chris Canfield Executive Director/Vice President Audubon North Carolina Larry Thompson Executive Director North Carolina Wildlife Federation David A. Emmerling, EdD, Executive Director Pamlico Tar River Foundation 29 B-74 Appendix B: Road/Pea Island National Wildlife Refuge/Cape Hatteras National Seashore Timeline The following timeline was assembled to help better understand the evolutionary relationship between the transportation corridor (on Bodie and Hatteras Islands), the Cape Hatteras National Seashore and the Pea Island National Wildlife Refuge. This timeline was developed by NCDOT and FHWA and shared with the US Fish & Wildlife Service in a meeting on March 19, 2009 for review and comment. The timeline was also provided to the Merger Team for the May 21, 2009 Merger team meeting. B-75 a? U I C) L U U) _0 (6 C o \ _0 (6 _ E (6 (6 U Q - O c Q ` O O (6 (6 0) E F 0) co -0 0) p (6 cn (6 O C? 'E O rn o c? 'E O 7 2 O Of O N - O CO 3: O N -0 • • N U) O 0 E m N cn O -?e -0 E m 0 0 a _ O N (n= O U O N Q (n N N O O O > - Z - CO CO co •~ U O N O' V U z O- - \ Q m 3: O - Daw (D a 5? ca O E (D II 0-) w c70 -0 11J cn o cn o cn 0 >. > a? 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I Z- Z Q = C a? a) y U Q > (n 0 E M (D (6 p E O 0> O ?? c cu (D E 0 (n (D 0 O O > E > O - U N O p 0 (n (n 0 0 0 (6 C Z Q- O O 'a > 0 0 (D O- (n U Q T - 0 a O U p - Q (n M N > (6U 0U ° 0? 0 C: _0 _ (n (D CN fC C: C O) -O j U Q ? U U (n D N ( O N N Z N y (6 U) C - -E -0 6 U Q- Q (6 N QU C Z D L U L (n ~ T ° ca C 0) E Z 0 uJ o C 8-0-0 ?.o-0 a? c (n . > o 0 U ?5 °) _ 0 0 0 c 0 i aD a? Q = C 0 0 cch-E (n E ca ? E 2 c -- U 0 CO a? 0 E _ 0 > N N N C .N N Of > > E N (D m O LL O CO C o a) a) (D O O 0 z CD U N O E Of 0 D 0-0 a- 3 O m U Z U E H N NO -0 N (6 D C) N v v E °D CO fl E 0 Do > 01 ?, O CD O CD -(D CD O O (D CO C) N N ()N ZN ?N B-89 Appendix C: Historic-related Conceptual Design Modifications Road North/Bridge South and All Bridge Alternatives. The Rodanthe bridge portion of these alternatives was revised to locate the intersection with NC 12 approximately 530 feet (161.5 meters) north of the Rodanthe Historic District. The southern terminus is a curved intersection, similar to that designed for the Pamlico Sound Bridge Corridor with Curved Rodanthe Terminus considered in the FEIS. NC 12 traffic would be at-grade as it enters the Rodanthe Historic District. The section of NC 12 roadway between the southern terminus of the bridge portion north to the Refuge border would be maintained as a service road to provide property access to homes and businesses north of the bridge. The original alignment terminated within the district and had been developed for the 2005 SDEIS prior to a revision to the district boundaries with SHPO concurrence in 2006. Moving the alternative from the historic district places the southern terminus of the alternative between the 2050 and 2060 high erosion shoreline. This location does not achieve the project objective of an at-grade NC 12 being no closer than 230 feet west of the 2060 high erosion shoreline. However, NC 12 could be relocated again if the 2060 high erosion shoreline were to occur. The 2060 high erosion shoreline places almost all of the Chicamacomico Life Saving Station and approximately one-half of the Rodanthe Historic District in the Atlantic Ocean. Therefore, should a further relocation of NC 12 be needed under those conditions, the historic resource issue also is no longer expected to exist at that time. The northern terminus of the Rodanthe area bridge with the Road North/Bridge South and the All Bridge alternatives would remain the same, with bridging beginning approximately 2 miles (3.2 kilometers) north of the Refuge's southern boundary and extending into Pamlico Sound before rejoining NC 12 in Rodanthe. Phased Approach/Rodanthe Bridge Alternative. The original design of the Phased Approach/Rodanthe Bridge Alternative included a bridge in Rodanthe that was contained within the existing 100-foot (30.5-meter) easement, with one-way service roads on either side of the bridge being used to provide local access. The alternative terminated approximately 1,560 feet (475.5 meters) south of the Rodanthe Historic District. The bridge was within the district boundaries and adjacent to the boundary of the Chicamacomico Life Saving Station. Because of the visual impacts of the bridge, as well as concerns over the impact of the associated change in access both to the Chicamacomico Lifesaving Station and across the Rodanthe Historic District, the Rodanthe area bridge was shortened to stop at a point approximately 420 feet (128.0 meters) north of the district. The southern end of this bridge would not be brought down to grade; instead, traffic would access the bridge via a two-lane ramp on the west side of the bridge. NC 12 traffic would be at-grade through the Rodanthe Historic District. The main bridge would not be brought down to grade because of the risk of shoreline erosion. It is the goal of the project to move NC 12 or place it on a bridge such that the at-grade portions of NC 12 would be unaffected under high erosion conditions in 2060. In order to keep the bridge outside the Rodanthe Historic District, it must drop below the elevation of the storm surge in the general area of the 2020 high erosion shoreline and reach existing grade between the 2040 and 2050 high erosion shorelines. Thus, placing this ramp back to grade on one side and continuing the bridge at full height above the storm surge to a point between the 2040 and 2050 high erosion shorelines would reduce the risk to NC 12 of high erosion or an island breach. If high erosion rates manifest themselves or a breach occurs that puts the ramp-to-grade at risk, then a new ramp could be built off the full height bridge and/or the full height bridge could be extended as originally proposed. Again, the 2060 high erosion shoreline places almost all of the Chicamacomico Life Saving Station and approximately half of the Rodanthe Historic District in the Atlantic Ocean. Therefore, should further extensions of an NC 12 bridge be needed under those conditions, the historic resource issue also is no longer expected to exist at that time. The northern terminus of the Rodanthe bridge with the Phased Approach/Rodanthe Bridge Alternative would remain the same; bridging would begin at a point north of the Rodanthe `S' Curves Hot Spot within the Refuge and extend south into Rodanthe while remaining within the existing 100-foot (30.5-meter) easement. B-90 Appendix D: Merger Team Meeting Minutes Since FEIS • November 13, 2008 • March 26, 2009 • May 21, 2009 • September 23, 2009 B-91 moo YEARS To: November 13, 2008 Bonner Bridge Merger Team Meeting Attendees From: John Page, Parsons Brinckerhoff Date: December 19, 2008 Subject: Revised Meeting Minutes - November 13, 2008 Merger Team 2AAA Meeting for the Bonner Bridge Replacement Project (TIP No. B-2500) Attendees: Gary Jordan USFWS - Raleigh Field Office Bill Biddlecome US Army Corps of Engineers Christopher A. Militscher USEPA Kathy Matthews USEPA Ron Sechler National Marine Fisheries Service Darrell Echols NPS - Cape Hatteras National Seashore Clarence Coleman FHWA - NC Division Ron Lucas FHWA - NC Division Jim Gregson NCDENR - DCM Cathy Brittingham NCDENR - DCM Brian Wrenn NCDENR - DWQ David Wainwright NCDENR - DWQ Travis Wilson NCWRC Renee Gledhill-Earley NCDCR - SHPO Lori Kroll NCDOT - Secretary's Office Beth Smyre NCDOT - PDEA Brian Yamamoto NCDOT - PDEA Rob Hanson NCDOT - PDEA Michael Turchy NCDOT - Natural Environment Unit Chris Rivenbark NCDOT - Natural Environment Unit Elizabeth Lusk NCDOT - Natural Environment Unit LeiLam Paugh NCDOT - Natural Environment Unit Morgan Weatherford NCDOT - Natural Environment Unit Doug Taylor NCDOT - Roadway Design D. R. Henderson NCDOT - Hydraulics Unit Bob Capehart NCDOT - Division 1 Rodger Rochelle NCDOT - Transportation Program Management Unit Nilesh Surti NCDOT - Transportation Program Management Unit Virginia Mabry NCDOT - Transportation Program Management Unit Thomas Stoddard NCDOT - TIP Development Unit Calvin Leggett NCDOT - Program Development Branch A. L. Avant NCDOT - Program Development Branch Lonnie Brooks NCDOT - Structure Design Unit Mike Robinson NCDOT - Construction Unit Over a Century of Engineering Excellence B-92 too YEARS Page 2 December 19, 2008 Minutes: November 13, 2008 Merger Team 2A/4A Meeting for Bonner Bridge Don O'Toole NCDOT - Geotechnical Engineering Unit John Page Parsons Brinckerhoff Bobby Norburn Parsons Brinckerhoff The meeting started at 3:00 p.m. in the Board Room of the NCDOT Transportation Building. Bill Biddlecome began the meeting by informing the attendees that the purpose of today's meeting was to seek Merger Team concurrence on Concurrence Points 2A (Bridging Decisions and Alignment Review) and 4A (Avoidance and Minimization). He then asked the attendees to introduce themselves before turning the meeting over to Beth Smyre for NCDOT's presentation of the Merger Meeting Packet. Beth Smyre said that the purpose of today's meeting was to seek concurrence only on Phase I (Oregon Inlet bridge) of the LEDPA for the Bonner Bridge Replacement Project. She also noted that it was a combined 2A/4A concurrence meeting because a 2A agreement was never signed by the Merger Team for the Parallel Bridge Corridor. She said that she had two versions of the concurrence form (i.e., a short form that referenced the Merger Team Packet and its findings and a longer form with space for listing the meeting agreements) that could be used depending the team's preference and the outcome of today's meeting. Concurrence Point 2A Discussion Beth said that the first topic to discuss related to Concurrence Point 2A was the bridge landing on Bodie Island. The design and alignment analyzed in the FEIS and shown in the Packet is based on planning-level decisions, but the exact alignment will be developed by the Design- Build contractor. She asked if the agencies had any restrictions that they wanted to recommend for inclusion in the Design-Build contract beyond what is already specified in the FEIS, keeping in mind that NCDOT will require the contractor to design the bridge so that the impacts will not be worse than those presented in the FEIS, but the design could be altered and its location adjusted within the project's 1,000-foot corridor if there are opportunities identified to further reduce impacts. There were no suggestions for further restrictions beyond what is in the FEIS on the Bodie Island side of Oregon Inlet. Beth said that the next topic to discuss related to Concurrence Point 2A was the bridge landing on Hatteras Island. She said that the alignment/design on Hatteras Island are limited by keeping the bridge in NCDOT's existing 100-foot NC 12 easement. David Wainwright asked about the reason for extending Phase I by an additional 2,000 feet beyond that defined in the FEIS. Beth responded that it was designed to protect the southern bridge terminus by extending it beyond an area that is currently showing increased soundside erosion. Cathy Brittingham asked whether or not retaining walls were going to be used on the bridge landings for the Phase I bridge on Hatteras Island. She said that retaining walls for Phase I are shown on Figure 2-22 (page 2-104), and DCM is concerned about the use of retaining walls for the proposed project. DCM wants to further discuss retaining walls in terms of permitting for Over a Century of Engineering Excellence B-93 too YEARS Page 3 December 19, 2008 Minutes: November 13, 2008 Merger Team 2A/4A Meeting for Bonner Bridge the project. Beth agreed that further discussions on retaining walls would occur during design coordination. Beth asked if there were any further comments related to Concurrence Point 2A. There were none. She then asked if the agencies could agree on Concurrence Point 2A as presented in the Merger Team Packet and there were no objections. Concurrence Point 4A Discussion Oregon Inlet Dredging Beth started the Concurrence Point 4A discussion with the first avoidance and minimization topic in the Packet - Oregon Inlet dredging. As stated in the Packet, she said that there would be no dredging in SAVs, as well as no dredging to a depth greater than 8 feet. Darrell Echols requested that the NPS be added to the list of coordinating agencies shown in the Packet related to the Design-Build contractor's development of dredging techniques and a disposal plan to minimize harm to natural resources. Beth responded that NPS would be added to this list. David Wainwright asked about the use of dredge spoil for temporary impact wetland mitigation. Beth responded that the FEIS briefly discussed this use with respect to restoring the elevation of affected wetland areas. Jim Gregson asked if there was a contingency plan to avoid any new areas of SAV that might be identified before the start of construction. Rodger Rochelle responded that the late 2007 SAV survey would be ground truthed and revised, if needed, prior to construction. He also said that it would be a contract requirement not to dredge in the SAV areas identified based on this ground truthing. Dredge Spoil Disposal Beth began the discussion of the second avoidance and minimization topic in the Packet - dredge spoil disposal. Gary Jordan asked about the statement in the Packet that indicates "the disposal of any excess material would be the responsibility of the contractor." Beth responded that disposal of excess material would be the responsibility of the contractor, but that the contractor would contractually have to dispose of this material in accordance with NCDOT's Standard Specifications, permit requirements, and other applicable laws. Ron Sechler asked if the contractor would also consult with the appropriate agencies on excess material disposable. Beth responded that this would be the case, and also that further coordination on disposal locations would occur at Concurrence Points 4B and 4C. Over a Century of Engineering Excellence B-94 too YEARS Page 4 December 19, 2008 Minutes: November 13, 2008 Merger Team 2A/4A Meeting for Bonner Bridge Use of Work Bridges/Haul Roads Beth said that there would be no haul roads used in areas with SAVs, but the option for the contractor to use haul roads through wetlands was being left open. Work bridges will be used in areas with SAVs. Ron Sechler asked if the construction could be "top down" in jurisdictional areas. Rodger Rochelle responded that there was no way to know for sure at this point because replacement bridge span length could prevent the use of top down construction for most contractors. Rodger also said that an important part of the selection of the Design-Build contractor is the environmental quality component of the proposal. In other words, in selecting a contractor, NCDOT will be looking closely at each contractor's proposed methods for minimizing impacts to natural resources. Ron Sechler asked about the impacts of work bridges. Brian Wrenn also asked if the haul roads would be like causeways in terms of appearance and impacts. Bill Biddlecome also noted that Table 2 in the Packet indicates that there will be 2.4 acres of SAV impact because of the Bodie Island temporary haul road. Beth responded that there would be no fill from haul roads in SAV areas, so NCDOT needs to determine why there are 2.4 acres shown in the table. [It was later determined that this is the unmigitated impact, haul road instead of a bridge.] David Wainwright asked about the use of turbidity curtains to limit turbidity with the placement of haul roads. Rodger Rochelle responded that turbidity curtains will work and that some method will be prescribed to limit turbidity, but the method that the contractor will use is not known at this time. David asked what other methods are available. Rodger responded that he was not aware of any at this time. Chris Militscher asked if the SAV and wetland impacts from haul roads shown in Table 2 were the maximum impacts that would be expected occur. Beth responded that these amounts should be the maximums and that the contractor would attempt to decrease the amounts, but that this issue would be revisited during Concurrence Points 4B and 4C. Rodger Rochelle added that he expects these impacts will decrease, but there is a possibility that the contractor could request to increase these amounts if a possible "trade-off' is identified for reducing impacts in another area (e.g., if the construction duration could be shortened by a year). However, any such proposed trade-offs would be discussed in advance with the Merger Team. Bill Biddlecome again clarified that there should be no haul roads in SAVs, just possibly in wetlands. David Wainwright asked if the impact amounts in Table 2 included demolition. Beth responded that impacts from demolition were not included. David asked if those impacts would be temporary impacts only. Beth responded that was the case. Chris Militscher requested that prior to the Concurrence Point 4B meeting the Merger Team be provided information on the impacts that have changed since today's meeting so that they can Over a Century of Engineering Excellence B-95 too YEARS Page 5 December 19, 2008 Minutes: November 13, 2008 Merger Team 2A/4A Meeting for Bonner Bridge adequately prepare for the Concurrence Point 4B meeting. Beth responded that was acceptable to NCDOT. Ron Sechler asked if work bridge pile impacts were included in the SAV impact amounts in Table 2. Beth responded that work bridge piles were included. Bill Biddlecome said that he wanted to state for the record that the USACE wants all SAVs and wetlands bridged to the maximum extent practicable. Chris Militscher asked about the timing for Phase II and whether or not the Merger Team was concurring today on anything related to Phase II_ Beth responded that the Merger Team was not concurring today on anything related to Phase II_ She also said that the proposed concurrence form indicates that combined Concurrence Point 2AAA meetings will be held prior to the completion of the final design for each subsequent phase of the Preferred Alternative. Bill Biddlecome added that that was his recommendation. Chri s said this was acceptable to him. Cathy Brittingham asked about the distinction between temporary and permanent wetland impacts. For example, with haul roads, are the impacts considered to be temporary or permanent? Beth responded that the impacts were considered to be temporary if they were used only for construction (and subsequently removed), no matter how long the duration of the activity, and not a part of the permanent roadway facility. Cathy said that since the construction is estimated to last for 4 years, is it really appropriate to consider these as temporary impacts. Bill Biddlecome responded that the permits can contain conditions requiring that the temporarily impacted wetlands be restored and regain their previous functionality, or else the impact would have to be mitigated. He also did not agree that 1 to 1 mitigation was appropriate for this situation. Bill said that the issue of permanent versus temporary impacts needs to be discussed again at a later date once the amount of the temporary impacts is better known. Cathy added that the temporary wetland impacts would need to be closely monitored in case they need to be reclassified as permanent impacts. Ron Sechler said that the same consideration applies to SAVs because it is not possible to predict how the holes from temporary bridge piers will fill back in. Chris Militscher agreed that the issue of permanent versus temporary impacts can be dealt with later. Rodger Rochelle said he does not know how long work bridges and haul roads might have to remain in place, but he could ask some contractors for an estimated duration. Cathy said that they have seen standard language on haul roads in contracts in the past. Bill reiterated that this issue would be dealt with in the permitting process and that the permit would contain conditions for restoration of wetlands. Ron Sechler asked if SAVs in the Oregon Inlet area had been mapped recently. Beth replied that the most recent SAV mapping is from late-2007; however, the Design-Build contractor will be provided with new aerial photography and required to ground truth the 2007 SAV mapping. Over a Century of Engineering Excellence B-96 too YEARS Page 6 December 19, 2008 Minutes: November 13, 2008 Merger Team 2A/4A Meeting for Bonner Bridge Brian Wrenn asked about the intent to jet piles in open water. He said that based on the NCSU study that NCDOT references in the FEIS, jetting causes a high volume of sediment to be disturbed and introduced as turbidity into the open water, so why is the use of jetting in these areas a project intent. Mike Robinson responded that jetting is required for the placement of large diameter piles. Ron Sechler added that piles for temporary work bridges are small enough that jetting is not required. Brian asked if jetting would be needed for large diameter piles even in wetlands because he is concerned about turbidity and smothering of vegetation with jetting. The response was that jetting would be required for large diameter piles even in wetlands. Brian asked how the discharge would be handled so that areas can recover. He prepared a rough estimate that the jetting spoil in Oregon Inlet for the replacement bridge would fill approximately 22 dump trucks. In addition, the spoil could spread-out and cover adjacent SAVs. Rodger said that it could be included in the contract and the permits to prevent this from happening. Brian wants to see a plan for jetting operations that includes protecting jurisdictional areas. He added that there is good flow in Oregon Inlet, which will help, but there is a lot of variability in the way that turbidity curtains function in areas with high water velocities. Bill Biddlecome asked if NCDOT could make a commitment to not jetting temporary bridge piles. Rodger responded that NCDOT cannot commit to that at this time. Ron said that a post-construction assessment of impacts to SAV (that occur despite the Design- Build contractor's minimization efforts) would have to be done because it is not possible to precisely predict these impacts prior to construction. The type of material that will be disturbed (i.e., sands versus fines) is also a concern about jetting, but the material type is not currently known. Protected Species Commitments and Retention of Portion of Existing Structure/Construction of Fishing Pie Beth Smyre said that the last two avoidance and minimization topics in the Packet related to construction of the new bridge (protected species commitments and retention of portion of existing structure/construction of fishing pier) are intended as reminders to the Merger Team on how these topics are addressed in the FEIS and the Section 7 Biological Opinion. She said that the potential fishing pier would be discussed during the permitting process, but that there is no specific plan for the replacement of the fishing catwalks as of yet. Bill Biddlecome said that the USACE is concerned that if no submerged structure was included within Davis Slough, then Davis Slough could become the primary channel through Oregon Inlet and the planned navigation zone for the new bridge would be rendered useless to vessel traffic. This would hurt the USACE dredging efforts in Oregon Inlet. It was discussed that this issue would be further discussed during the permitting process. Bill also said that although the NCDOT estimated the needed width for the navigation span of the new bridge in the FEIS, the USACE has not yet decided how wide it needs to be. One reason for this is that the navigation span width cannot be accurately determined without knowing whether or not the terminal groin will be left in place. Chris Militscher asked if the USACE is proposing that the groin be left in place. Bill responded by referencing the language contained in the USACE's September 18, 2008 letter to NCDOT which stated that the Wilmington District strongly recommends that the Over a Century of Engineering Excellence B-97 too YEARS Page 7 December 19, 2008 Minutes: November 13, 2008 Merger Team 2A/4A Meeting for Bonner Bridge terminal groin remain in place as an essential feature of the new Oregon Inlet bridge for the reasons stated in the letter. Bill also responded that it was his interpretation that without the terminal groin being left in place, the USACE would be unable to identify a Navigational Zone to NCDOT. Chris Militscher said that Dave Henderson had told him about the recently approved AASHTO report on designing bridges in an ocean environment titled "Guide Specifications for Bridges Vulnerable to Coastal Storms." Chris requested that NCDOT provide the Merger Team with a copy of this report. Dave Henderson said that the report is 55 pages long, but the published version was not available yet because it had just gone to the publisher. Beth Smyre said that any Merger Team member that wants a copy should send her an e-mail request. Demolition of Bonner Bridge Beth Smyre said that the final Concurrence Point 4A topic in the Packet related to avoidance and minimization was the demolition of Bonner Bridge. She said that the commitments on access for construction also applied to demolition of the existing bridge. Beth asked if there were any further questions on Concurrence Point 4A. LeiLani Paugh asked about the comment in the USACE FEIS comment letter related to questioning NCDOT's proposed use of Ballance Farm as a wetland mitigation site. Chris Militscher said that EPA had the same comment as USACE on the proposed use of Ballance Farm. Bill Biddlecome responded that the Ballance Farm site could be used for mitigation of fresh water wetland impacts, but that it may not be appropriate for mitigation of salt water wetland impacts. LeiLani said that NCDOT needs to discuss this issue further with the USACE because a portion of Ballance Farm had been reserved for wetland mitigation for the subject project. Cathy Brittingham added that DCM also had not decided for sure if Ballance Farm was appropriate for wetland mitigation for this project, but that they preferred on-site mitigation. She said she was not sure whether or not NCDOT had exhausted possible on-site mitigation options, but she would like NCDOT to further investigate on-site options. Ron Sechler said that he shared the same concern about not using on-site wetland mitigation. It was discussed that the SDEIS included possible on-site mitigation sites, but these sites were removed from the FEIS in favor of the Ballance Farm site. Darrell Echols said that there could be appropriate on-site wetland mitigation options in the National Seashore on Bodie Island. Bill Biddlecome said that USACE has some ideas for on-site mitigation that they want NCDOT to further investigate. LeiLani said that this issue could be discussed further at a separate meeting between NCDOT, USACE, and DCM, but that NCDOT would like to resolve it as soon as possible. Beth said this discussion would be included in the meeting minutes and that NCDOT would follow-up with the USACE. Beth Smyre asked if there were any further questions on Concurrence Point 4A. Hearing no further questions, she asked the Merger Team which concurrence form they wanted to use (i.e., Over a Century of Engineering Excellence B-98 too YEARS Page 8 December 19, 2008 Minutes: November 13, 2008 Merger Team 2A/4A Meeting for Bonner Bridge the short form or the longer form with space for adding specific topics from today's meeting). Bill Biddlecome responded that Table 2 in the Packet needed to be updated to correctly reflect the impacts to SAVs from the Bodie Island temporary haul road. Chris Militscher said that he was concerned about the earlier DWQ comment related to the amount of jetted material that will be generated in Oregon Inlet. He realizes jetting is unavoidable, but he wants language included in the Design-Build contract related to use of Best Management Practices to minimize jetting impacts. In addition, a commitment to clean- up and restore the area could be included. Cathy Brittingham said that potential impacts from jetting were not quantified in the FEIS. Chris responded that these impacts cannot be accurately estimated in advance. Dave Henderson said that the sidecast dredging that is currently being used by USACE to maintain the Oregon Inlet channel has similar impacts to the proposed jetting for inserting bridge piles (i.e., sand is scooped up and thrown into the inlet). He asked if there was any evidence that sidecast dredging was causing negative impacts. Bill Biddlecome responded that there was currently no information on negative impacts from sidecast dredging. Cathy said that DCM's real concern is not jetting in open water, but rather near SAVs and wetlands. It was also discussed that the type of material jetted is of concern (i.e., if the deeper subsurface material consists of fines, that will be of more concern than jetting of sandy materials). Based on the above-referenced discussions, Beth Smyre updated the concurrence form to include the following specific issues from today's meeting: Merger Team members will be provided, prior to Concurrence Point 413, with any major changes in wetland/SAV impacts based on updated designs. The Design-Build contractor should minimize damage to wetlands/SAV/Oregon Inlet from jetting spoils. Table 2 currently shows temporary impacts from haul roads in SAV areas on Bodie Island. NCDOT will not allow haul roads within SAV. Each agency's decision on concurrence for Concurrence Point 2A/4A is listed below and is also shown on the attached concurrence form: • USACE - concurrence provided. • USEPA - concurrence provided. • NCDWQ - concurrence provided. • SHPO - concurrence provided. • NMFS - abstained from concurrence. • NPS - concurrence provided. • USFWS-PINWR - abstained from concurrence. • NCDOT - concurrence provided. • USFWS - abstained from concurrence. Over a Century of Engineering Excellence B-99 too YEARS Page 9 December 19, 2008 Minutes: November 13, 2008 Merger Team 2A/4A Meeting for Bonner Bridge • NCWRC - abstained from concurrence. • FHWA - concurrence provided. • NCDMF - not represented at meeting (concurrence later provided). • NCDCM - concurrence provided. The agencies abstaining from concurrence will provide further written documentation on their reasons for abstaining. With respect to the upcoming project schedule, Beth Smyre said that the Design-Build contract is planned to be awarded in June 2009. The Concurrence Point 4B meeting will likely be held in the Fall of 2009. Rodger Rochelle said that NCDOT would be the "go-between" for the agencies and the Design-Build contractor. He added that there would be no direct contact between the agencies and the potential contractors during the pre-bidding process unless a NCDOT representative is present. Bill Biddlecome then adjourned the meeting. File no.: 3301-2.7.2 J:\PLANNING\Bonner SDEIS\Stakeholder Involvement\Merger Meetings\4-08 Merger Meeting - Concurrence Point 4A\Bonner Merger Team 4A Meeting Minutes (revised final 12-19-08).doc Over a Century of Engineering Excellence B-100 moo YEARS To: From: Date: March 26, 2009 Bonner Bridge Merger Team Meeting Attendees John Page, Parsons Brinckerhoff April 15, 2009 Subject: Meeting Minutes - March 26, 2009 NEPA/Section 404 Merger Team Informational Meeting for the Bonner Bridge Replacement Project (TIP No. B-2500) Attendees: Gary Jordan USFWS - Raleigh Field Office Pete Benjamin USFWS - Raleigh Field Office Mike Bryant USFWS - NC Coastal Plain Refuge Complex Dennis Stewart USFWS - Pea Island National Wildlife Refuge Bill Biddlecome US Army Corps of Engineers Scott McLendon US Army Corps of Engineers Stacie Craddock US Army Corps of Engineers Christopher A. Militscher USEPA Kathy Matthews USEPA Ron Sechler National Marine Fisheries Service Mike Murray National Park Service - Cape Hatteras National Seashore Thayer Broili National Park Service - Outer Banks Group Clarence Coleman FHWA - NC Division Ron Lucas FHWA - NC Division Michael Dawson FHWA - NC Division Rob Ayers FHWA - NC Division Amy Simes NCDENR Jim Hoadley NCDENR - DCM Cathy Brittingham NCDENR - DCM Sara Winslow NCDENR - DMF Brian Wrenn NCDENR - DWQ David Wainwright NCDENR - DWQ Travis Wilson NCDENR - Wildlife Resources Commission Renee Gledhill-Earley NCDCR - SHPO Greg Thorpe NCDOT -PDEA Beth Smyre NCDOT - PDEA Brian Yamamoto NCDOT - PDEA Rob Hanson NCDOT - PDEA Kristine O'Connor NCDOT - PDEA Missy Pair NCDOT - PDEA Michael Turchy NCDOT - Natural Environment Unit Chris Rivenbark NCDOT - Natural Environment Unit Elizabeth Lusk NCDOT - Natural Environment Unit Kathy Herring NCDOT - Natural Environment Unit Byron Kyle NCDOT - Roadway Design Over a Century of Engineering Excellence B-101 moo YEARS Page 2 April 15, 2009 Minutes: March 26, 2009 Merger Team Informational Meeting for Bonner Bridge Zak Hamidi Dave Henderson Jerry Lindsey Jerry Jennings Clay Willis Ray McIntyre Thomas Stoddard Debbie Barbour Victor Barbour NCDOT - Roadway Design NCDOT - Hydraulics Unit NCDOT - Hydraulics Unit NCDOT - Division I NCDOT - Division I NCDOT - TIP Development Unit NCDOT - TIP Development Unit NCDOT - Preconstruction NCDOT - Technical Services Mark Staley NCDOT - Roadside Environmental Unit Rodger Rochelle NCDOT - Transportation Program Management Unit Nilesh Surti NCDOT - Transportation Program Management Unit Virginia Mabry NCDOT - Transportation Program Management Unit Lonnie Brooks NCDOT - Structure Design Unit K. J. Kim NCDOT - Geotechnical Engineering Unit Sam Cooper CZR John Page Parsons Brinckerhoff Bobby Norburn Parsons Brinckerhoff The meeting started at 10:30 a.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. Introduction and Purpose of this Meeting Beth said that today's meeting was an informational meeting and asked if everyone had a meeting packet. She said the purpose of the meeting was to discuss the possibility of revisiting the project's LEDPA decision; however, before NCDOT formally asks for concurrence, it wants to inform the Merger Team members on the reasons behind this possibility and get agency feedback. hl addition NCDOT wants each agency to have an opportunity to take information from today's meeting back to discuss further with their management before any decision to change the LEDPA is made. Proiect History and Current Status Beth went through a brief summary of the LEDPA concurrence agreement (including the elevation process that occurred), the FEIS, and the Concurrence Point 2A/4A agreement for Phase I of the LEDPA, including the dates for each event. She also defined the LEDPA - the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative. Over a Century of Engineering Excellence B-102 moo YEARS Page 3 April 15, 2009 Minutes: March 26, 2009 Merger Team Informational Meeting for Bonner Bridge Summary of Comments on the 2008 Final Environmental Impact Statement/Section 4(f) Fvalnatinn Beth turned the meeting over to Clarence Coleman to discuss the agency comments received on the FEIS, noting that a copy of all agency and NGO comments received were included in the merger packet. Clarence said that substantive agency and NGO comments were received on the FEIS, so NCDOT/FHWA started to review and respond to these comments. He said that the Record of Decision will include responses to all comments, but today's meeting will focus on several issues that FHWA believes need further discussion with the Merger Team based on the FEIS comments. Clarence said that the first issue he wanted to discuss was the FEIS' Section 4(f) analysis. The Department of Cultural Resources (DCR) commented that there would be a substantial impairment to the Rodanthe Historic District as a result of the LEDPA. FHWA interpreted this comment to mean that DCR disagreed with the conclusion in the FEIS that there would not be a constructive use of the historic district with the LEDPA. DCR also commented that they disagreed with the FEIS determination that there would be no constructive use of the Refuge. DCR's comment indicates that, based on the LEDPA's impacts on the Refuge as documented in the FEIS, they believe that there would be a constructive use of the Refuge. In addition, the DOI commented that any of the Parallel Bridge Corridors would violate Section 4(f), and they also believed that there would be a constructive use of the Refuge. Finally, Southern Environmental Law Center (SELC) also commented that they disagreed with the constructive use analysis in the FEIS. Clarence said the second issue that he wanted to discuss was Refuge access with the LEDPA. The DOI and several other agencies commented that they were concerned over the public's loss of access to the Refuge with the LEDPA. The third issue that Clarence wanted to discuss was the future disposition of the terminal groin. SELC commented that the FEIS did not adequately assess the impacts of removing the groin with the LEDPA, and that this issue had a direct relationship to the project. Certification of NC 12 Right-of-Way Clarence discussed that FHWA requires NCDOT to certify that the right-of-way/easement is legal for federally-funded projects under FHWA jurisdiction to (i.e., to make sure the state has rights to the easement). He said that this process typically occurs once the NEPA process is completed, but based on the FEIS comments FHWA thought it should occur now. Therefore, NCDOT conducted a substantial amount of additional research into the history of the NC 12 easement through the Refuge and NCDOT's rights to this easement. Clarence also said that based on the property deeds and other legal documents discovered during the additional research, FHWA decided to reevaluate the applicability of Section 4(f) with respect to the Refuge for the proposed project. The reason for this decision is that FHWA believes that the Over a Century of Engineering Excellence B-103 moo YEARS Page 4 April 15, 2009 Minutes: March 26, 2009 Merger Team Informational Meeting for Bonner Bridge research revealed an evolutionary relationship between NC 12 and the Refuge that could alter the Section 4(f) analysis for the Refuge in the FEIS. Clarence reiterated that despite rumors to the contrary, the genesis for this effort was the right-of-way certification process. Renee Gledhill-Early asked if the re-evaluation of Section 4(f) was related only to the 4(f) use of the Refuge as refuge (i.e., the re-evaluation does not relate to other possible uses of the Refuge that qualify it for Section 4(f) protection). Clarence indicated that the Refuge is being re-evaluated as a refuge and as a historic resource under Section 4(f). Clarence discussed that the Road North/Bridge South Alternative is being re-examined as the potential Preferred Alternative for several reasons. He discussed that the cost is less and that DCR preferred the Road North/Bridge South over the LEDPA because keeping NC 12 at-grade would be preferable for maintaining the integrity of the historic landscape of the Refuge. Terminal Groin Clarence discussed that FHWA and NCDOT want to keep the terminal groin with any Parallel Bridge Corridor alternative to protect the southern end of the replacement Oregon Inlet bridge on Hatteras Island. However, SELC is concerned with what they believed to be the FEIS' lack of analysis related to the impact of removing the terminal groin. Clarence said that the FEIS includes discussion of this issue, but if further analysis of removing the groin is needed, the analysis would need to consider all pertinent related issues for all of the detailed study alternatives, including the Pamlico Sound Bridge Corridor. Two such issues are Section 106 and Section 7 with respect to threatened and endangered species impacts (critical habitat for the endangered piping plover has been federally-designated behind the groin since the FEIS was published). Based on the current groin permit, it appears that the groin would have to be removed with the Pamlico Sound Bridge Corridor, but FHWA is currently coordinating with USFWS on whether or not this would be the case. It needs to be determined if it is possible to get a new permit to retain the groin, if needed, with any of the detailed study alternatives. Clarence said that further coordination with USFWS is needed in the next few weeks on NEPA and other related issues related to retaining the groin with the LEDPA. Section 106 Coordination Clarence said that there was a Section 106 coordination meeting between FHWA, NCDOT, and the Section 106 consulting parties last Tuesday (3/24/09). The reason for the meeting was to discuss DCR's comments on the FEIS related to impacts to the Rodanthe Historic District. DCR's comments led FHWA and NCDOT to take a closer look at the inconsistencies in the locations of the NC 12 termini in Rodanthe between the Parallel Bridge Corridor alternatives and the Pamlico Sound Bridge Corridor alternatives (i.e., the Pamlico Sound Corridor alternatives were designed to avoid the historic district as defined in the Supplement to the SDEIS, whereas the Parallel Bridge Corridor alternatives were defined based on an earlier district boundary and while avoiding the district's old boundary, they did encroach on the Over a Century of Engineering Excellence B-104 moo YEARS Page 5 April 15, 2009 Minutes: March 26, 2009 Merger Team Informational Meeting for Bonner Bridge revised boundary). Clarence said that in order to address this inconsistency, the NC 12 termini in Rodanthe for the Phased Approach/Rodanthe Bridge, Road North/Bridge South, and All Bridge alternatives have been redesigned to stay out of the historic district. He said that as a result of these design changes, it was agreed at the Section 106 meeting that now there would be "No Adverse Effect" on the historic district with the Phased Approach/Rodanthe Bridge, Road North/Bridge South, and All Bridge alternatives. Beth discussed the design changes in more detail, and copies of the new designs were also included in the meeting packet. Clarence noted that these new designs are an outcome of the Section 106 coordination process and will apply no matter which alternative is chosen as the LEDPA. Clarence said that the proposed project's effects on the Refuge were also revisited at the Section 106 meeting, but no revised concurrence was made related to impacts on the Refuge. He said that it is a fact that NC 12 has been moved four times within the Refuge with no documented significant environmental impacts. He also said that a FONSI was completed on the last road relocation in the Refuge in the 1990s. However, additional Section 106 coordination will continue since no revised concurrence was reached. FHWA agreed to gather some additional information, including drawings, and then get back with DCR to further discuss impacts on the Refuge. At the Section 106 meeting, it was agreed that the adverse effects determination in the FEIS for the Coast Guard Station still applies for all alternatives. hl addition, an agreement was reached on the use of a temporary staging area at the Coast Guard Station for Phase I. Next Steps • Preparation of draft revised Section 4(f) analysis by FHWA - FHWA is revising the FEIS' Section 4(f) analysis based on the new right-of-way data generated by NCDOT's additional research on the NC 12 easement. Mike Murray asked if the Merger Team would have a chance to review and comment on the revised Section 4(f) analysis once it is completed since it includes new information. Clarence responded that they would. Review of new right-of-way data and draft timeline by FHWA, NCDOT, and DOI, followed by distribution of data to Merger Team - FHWA has sent information on the right-of-way agreements to USFWS and DOI, who will verify the validity of the data before it is distributed to the other Merger Team members. FHWA and NCDOT also have prepared a draft timeline of the history of the NC 12 easement through the Refuge and past agreements (i.e., the evolutionary relationship between NC 12 and the Refuge discussed previously), which also has been sent to USFWS and DOI for their concurrence and/or feedback before it is distributed to the rest of the Merger Team. Ultimately, the NC Attorney General and agency lawyers may have to meet to discuss the official timeline before the issue can be finalized. Clarence said that the additional data and the timeline are factors in determining the applicability of Section 4(f) with respect to the Refuge. Bill Biddlecome asked if this issue only related to the applicability of Section 4(f) and not Over a Century of Engineering Excellence B-105 moo YEARS Page 6 April 15, 2009 Minutes: March 26, 2009 Merger Team Informational Meeting for Bonner Bridge compatibility. Clarence responded that the issue only relates to Section 4(f) (i.e., compatibility is a separate issue). • Continuation of Section 106 coordination. NCDOT and FHWA will continue to examine the Road North/Bridge South Alternative as a potential Preferred Alternative. Next Bonner Bridge Merger Team Meeting will be held on May 21, 2009 - Clarence said that the next proposed Merger Team Meeting has been pushed back from April 16 to May 21 (i.e., to the next regularly scheduled meeting on May 21, 2009) in part because of the outcome of the Section 106 meeting, but also to allow the timeline to be finalized and then subsequently to allow all of the Merger Team agencies to have time to review the timeline before the meeting. Question and Answer Pete Benjamin said that he doesn't understand the timeline argument with respect to Refuge Section 4(f) applicability - it doesn't seem relevant. He would like something in writing from FHWA related to where they are going with this issue. Mike Bryant asked who within his agency has the information that Clarence referenced because he has not seen it. Mike said he has only seen the map that was being used as a display at today's meeting which shows the year in which various parcels were transferred from the state to the Refuge. Clarence said that he had been told that the DOI solicitor has the new right-of-way information and is reviewing it. In addition, he thought that tabular information listing resources for the new data was e- mailed last Monday to Mike, and possibly to Pete, but Clarence will confirm that DOI has received the intended information. He also said that he wanted to make it clear that FHWA's research and conclusions are not the final word, rather FHWA is looking for DOI to agree with FHWA's findings and/or provide missing elements. He re-iterated that ultimately lawyers from the state, FHWA, and the DOI would likely be involved in determining a final conclusion. In response to a comment, Clarence said that no one with FHWA has claimed that NCDOT has the right to move NC 12 wherever they want within the Refuge. At this point, FHWA and NCDOT are simply speculating that the extensive collaboration between the state and the DOI that has occurred over the years, as exhibited in the documents gathered in NCDOT's research back to the early 1900s, may indicate that Section 4(f) does not apply for moving NC 12 within the Refuge due to joint planning. However, it was discussed that it has yet to be determined whether or not the passing of the National Wildlife Refuge System Improvement Act in 1997, which brought about the requirement for Refuge compatibility determinations, would impact the historic process that has been followed for relocating NC 12 within the Refuge (i.e., the process prior to 1997 that became evident based on the new right-of-way data gathered). Over a Century of Engineering Excellence B-106 moo YEARS Page 7 April 15, 2009 Minutes: March 26, 2009 Merger Team Informational Meeting for Bonner Bridge Travis Wilson asked for clarification as to whether or not the tiered EIS that had been planned for implementing the multiple phases of the current LEDPA (the Phased Approach/Rodanthe Bridge Alternative), for which it had been assumed that all alternatives for maintaining NC 12 through the Refuge (i.e., nourishment, relocation on road, and relocation on bridge) would be kept available for Phases II to IV, would still keep these additional options for future phases if the Road North/Bridge South is selected as the LEDPA. Clarence responded that the other options would remain available. He said that Phase I (the new Oregon Inlet bridge) would be basically the same for any alternative at this point, including extending the bridge to the south across the northern-most hot spot on Hatteras Island, but beyond that the best option (based on future impact analyses) at the time the project is ready for implementation could still be chosen for future phases. FHWA regulations allow the ROD to be revised as long as all alternatives being considered for the revised ROD were carried forward for detailed study in the FEIS. Beth added that based on the estimated costs for the project, any alternative will now have to be phased. For example, the Road North/Bridge South Alternative is anticipated to be two to three phases, with the new Oregon Inlet bridge as the first phase. She added that later phases could change to other alternatives based on future conditions in the Refuge. Mike asked if there would be a Supplemental EIS for changes to future phases of the LEDPA. Clarence said that a Reevaluation would be done of the ROD to determine if there were any new significant impacts and that would be the catalyst for possibly doing a Supplemental EIS. Chris Militscher asked if the Section 404 permit would be phased. Scott McLendon responded that the permit would be phased, but the impacts for all phases would be considered in issuing the initial permit so that hopefully the maximum impacts for all phases are known in advance. Scott asked why the Road North/Bridge South Alternative would be chosen because it has much greater wetlands impacts. Clarence responded that part of the reason was related to the access issues comments from the DOI, as well as concerns over elevated structures (because of aesthetics) through the Refuge from other commenters. In addition, as he discussed previously, NC 12 has been relocated at-grade several times through the Refuge with no identified significant impacts. Dennis Stewart commented that we need to keep in perspective that this relocation would be much longer than previous relocations. Clarence said that it was still a fact that all previous relocations had been handled with FONSIs (or possibly lesser environmental documents). Scott asked for clarification on whether or not Section 4(f) and the new easement data were the primary reasons behind the Merger Team being asked to possibly consider changing the LEDPA to the Road North/Bridge South Alternative. Clarence responded that based on the new data FHWA is re-analyzing the applicability of Section 4(f) to the Refuge because it may not apply to the Refuge as a refuge, but it may still apply to the Refuge as a historic site. He also noted that the Road North/Bridge South Alternative would cost substantially less to build than the Phased Approach/Rodanthe Bridge Alternative (approximately $500 million less based on the most recent cost estimates). Over a Century of Engineering Excellence B-107 moo YEARS Page 8 April 15, 2009 Minutes: March 26, 2009 Merger Team Informational Meeting for Bonner Bridge Clarence said that the DOI commented that the Pamlico Sound Bridge Corridor may be feasible and prudent to build, so the LEDPA would violate Section 4(f). Based on this comment, FHWA is looking at the issue of prudence again and this will be part of the new Section 4(f) analysis. He added that FHWA believes that it has already been proven that the long bridge is not practicable and USACE had agreed with this conclusion by signing the Review Board agreement. Scott commented that if FHWA determines again that the long bridge is not prudent, that means that it cannot be built under Section 4(f), but that determination would not apply to Section 404. (Note: Prudence is an FHWA decision under Section 4(f)). The Corps has already agreed that the Pamlico Sound Alternative is not practicable, consistent with Section 404 b(1) Guidelines. Clarence agreed but added that he hoped USACE would consider FHWA's Section 4(f) determination that the alternative could not be built in their Section 404 decision. Brian Wrenn asked if there would be any other design changes with the redesigned Road North/Bridge South Alternative that would affect the impact numbers in the FEIS. Beth said that two additional design changes that are being considered with the Road North/Bridge South Alternative are extending the new Oregon Inlet bridge approximately 2,000 feet to the south (as with the Phased Approach) and possibly shifting the Road North part of the project to try and reduce wetland impacts. Any possible shifts to the alignment to reduce wetland impacts would be discussed further with USACE and NCDENR, including bridging opportunities. She said that these other potential design changes had not been finalized yet, but any additional changes would be included in the information packet sent out prior to the next meeting so that the Merger Team would have an opportunity to discuss the changes at the meeting. Brian asked if design changes would also be considered for the other Parallel Bridge Corridor alternatives. Beth said that further design changes would probably only be looked at for the Road North/Bridge South Alternative because the Phased Approach had already been improved as much as possible at this point and the focus is now on possibly pursuing the Road North/Bridge South as the new LEDPA. Brian commented that he hasn't heard sufficient justification for pursuing the Road North/Bridge South Alternative when the wetlands impacts are so significantly higher. He added that he thought the other alternatives should also be looked at further for reducing impacts rather than focusing on customizing one alternative. He said that it would be difficult for DENR to permit one alternative when there are other alternatives on the table that have fewer impacts. Scott agreed that it would be difficult for the USACE to justify changing the LEDPA based on just looking at changes to one alternative without also looking at improving the other alternatives. Pete asked if the May 21 meeting would be a concurrence meeting. Clarence responded that it possibly would be a concurrence meeting. Pete said that he wants to be provided information that fully "connects the dots" as to how the decision was made to consider moving away from the Phased Approach as the LEDPA. Clarence said that a package would be put together to more fully explain to the Merger Team members why the Road North/Bridge South Over a Century of Engineering Excellence B-108 moo YEARS Page 9 April 15, 2009 Minutes: March 26, 2009 Merger Team Informational Meeting for Bonner Bridge Alternative is under consideration as the new LEDPA, and that this information would be provided before the next meeting. Pete requested a one month advance notice with the informational packet for the next meeting. Bill said that he is still confused as to how compatibility fits into the current decision-making process to pursue the Road North/Bridge South Alternative. Clarence said compatibility is not FHWA's decision. Mike responded that compatibility is still a major issue that would apply unless something takes away DOI's rights to part of the property within the Refuge. Bill asked if compatibility was being considered in parallel with the other issues that were discussed today. Clarence responded that the attorneys are considering this issue. Scott asked if a decision on compatibility would be made prior to the next Merger Team meeting. Mike responded that he was not sure. He just knows that the DOI solicitors had asked for all of the relevant project information, including the new data, so that they can have an informed discussion. Bill said that he thought the attorneys should make a decision on compatibility before the next meeting. Mike said that he cannot make a compatibility determination now, but he could render a new opinion once he has more information or new direction from DOI. Clarence again summarized the action items that need to occur prior to the next Merger Team meeting: All documentation related to the new data and timelines need to be reviewed by the FHWA, NCDOT, and DOI attorneys and finalized, and then provided to the Merger Team members prior to the meeting. • Refuge management needs to provide an indication on their jurisdiction related to compatibility once the agency attorneys have reviewed and provided comments on the new data and timeline. Scott asked if the compatibility action item was appropriate. Mike responded that compatibility determinations usually take place after the NEPA process has been completed, but in the past draft determinations have been made to help explain USFWS' position. As far as he knows, USFWS still considers the NC 12 easement through the Refuge to be the easement shown in the FEIS, but we will have to wait and see if the new data changes anything. Cathy Brittingham asked if the team members would be provided a summary of today's meeting. Beth responded that meeting minutes would be prepared. Bill Biddlecome then adjourned the meeting. File no.: 3301-2.7.2 J:\PLANNING\Bonner SDEIS\Stakeholder Involvement\Merger Meetings\3-09 Merger Meeting\Bonner Merger Team Meeting Minutes (3-26-09)- final.doc Over a Century of Engineering Excellence B-109 moo YEARS To: May 21, 2009 Bonner Bridge Merger Team Meeting Attendees From: John Page, Parsons Brinckerhoff Date: June 29, 2009 Subject: Meeting Minutes - May 21, 2009 NEPA/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 Mike Bryant USFWS - NC Coastal Plain Refuge Complex Dennis Stewart USFWS - Pea Island National Wildlife Refuge Bill Biddlecome US Army Corps 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 FHWA - NC Division Ron Lucas FHWA - NC Division Diane Mobley Michelle Sayyar Rob Ayers Amy Simes Jim Gregson Cathy Brittingham Michele Walker Sara Winslow Brian Wrenn David Wainwright Travis Wilson FHWA (by phone) FHWA (by phone) FHWA - NC Division NCDENR NCDENR - DCM NCDENR - DCM NCDENR - DCM NCDENR - DMF (by phone) NCDENR - DWQ NCDENR - DWQ NCDENR - Wildlife Resources Commission David Cox NCDENR - Wildlife Resources Commission Renee Gledhill-Earley NCDCR - SHPO Morgan Jethro Albemarle RPO (by phone) Greg Thorpe NCDOT - PDEA Beth Smyre NCDOT - PDEA Brian Yamamoto NCDOT - PDEA Rob Hanson NCDOT - PDEA Drew Joyner NCDOT - Human Environment Unit Mary Pope Furr NCDOT - Human Environment Unit Michael Turchy NCDOT - Natural Environment Unit Chris Rivenbark NCDOT - Natural Environment Unit Elizabeth Lusk NCDOT - Natural Environment Unit Morgan Weatherford NCDOT - Natural Environment Unit Leilam Paugh NCDOT - Natural Environment Unit Over a Century of Engineering Excellence B-110 too YEARS Page 2 June 29, 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge Doug Taylor NCDOT - Roadway Design Jerry Jennings NCDOT - Division I Ray McIntyre NCDOT - TIP Development Unit Victor Barbour NCDOT - Technical Services Mark Staley NCDOT - Roadside Environmental Unit Nilesh Surti NCDOT - Transportation Program Management Unit Virginia Mabry NCDOT - Transportation Program Management Unit Lonnie Brooks NCDOT - Structure Design Unit Scott Slusser North Carolina Department of Justice Sean Doyle North Carolina Department of Justice 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 some confusion as to the purpose of today's meeting - the purpose could either be to revisit Concurrence Point No. 3, or it could be an informational meeting. 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/Bridge 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. Renee 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 with the "Avoid Ponds" Alternative because of the "Bridge South" segment of the alternative. Over a Century of Engineering Excellence B-111 too YEARS Page 3 June 29, 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge Beth asked for further feedback on the "Avoid Ponds" Alternative. Renee reiterated that there was still an Adverse Effect on the Refuge because of the bridging in the southern part of the Refuge. In response to a question from Bill Biddlecome, 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 Team 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 what 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. He 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 SHPO. Clarence agreed that this was the main reason for looking at this alternative. Dennis asked if the 230-foot buffer was maintained between the future shoreline and the "Avoid Ponds" Alternative. Beth responded that the 230-foot 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 FEIS appendices and impacts to CAMA wetlands are listed in Table 4-25 on page 4-96 of the FEIS. He said that there are some CAMA wetlands in the ponds area. Cathy added that depending on the outcome of today's meeting, they may send someone to the project area to take a closer look at the locations of CAMA wetlands. Brian Wrenn said that the Road North/Bridge South Alternative may not be permitable 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 COE prefers the Phased Approach from the perspective of wetland Over a Century of Engineering Excellence B-112 too YEARS Page 4 June 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 being 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/Bridge South Alternatives because EFH is affected by both of them. He also shares the COE's concerns about wetland impacts. David Cox 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 goals. 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 impacts with the Road North/Bridge South Alternative. He said that we already have a signed form from the Review Board that satisfies the process needs and we should move forward with the Review Board agreement. Pete Benjamin said that he has many concerns with the revised Road North/Bridge South Alternative. He 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. He 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. He said these alternatives were not likely to be compatible, so they would not be permitable. Mike Bryant agreed that the Road North/Bridge South alternatives likely were not compatible. He discussed his April 30 to FHWA 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 John Sullivan. Clarence asked about the DOI comment 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 that he thought the DOI comment was basically just 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 Over a Century of Engineering Excellence B-113 too YEARS Page 5 June 29, 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge revisiting the Road North/Bridge South Alternative was to provide a future road at-grade to allow better Refuge access. Sara Winslow said that the high wetland impacts are her main concern with the Road North/Bridge South alternatives. Beth discussed why FHWA 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 of the meeting handout. She said that FHWA 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 e-mail that Chris Militscher had sent to the Merger Team members on May 15. She said that FHWA 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 Refuge to go beyond Phase I at this point, and he did not understand why the Merger 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 a great 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 that 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 FHWA from committing a huge amount of money to a project with a substantial amount of future uncertainty. He 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 management 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 a 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 Bridge needs to be replaced. The Review Board agreement said that the Pamlico Sound Bridge Corridor is not practicable and that the Parallel Bridge Corridor Over a Century of Engineering Excellence B-114 too YEARS Page 6 June 29, 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge includes several different alternatives which could be considered in the future when future conditions are 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 strategy. 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. Thayer discussed adaptive management from the perspective of the NPS. He said that it is virtually the opposite of the compatibility determination process because adaptive management will look at needs related to the future road, whereas compatibility only looks at Refuge concerns. Chris said we have to determine how the Refuge and the road can co-exist because neither can move. He 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 (e.g., 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 Approach. He said that FHWA'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 thorough documentation of the extensive research that has taken place related to the unpredictable future conditions in the project area. Also, multiple alternatives for the full 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 of the Phased Approach was compatible and could be built. He said that USFWS has experience with adaptive management, but he was trying to decide if adaptive management was appropriate for this project. He 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. He thinks we need more than just the "hope" that we can find an appropriate future solution. Clarence asked whether or not the Phased Approach was legal from the USFWS' 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 that 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 may 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 if the Merger Team decides to Over a Century of Engineering Excellence B-115 too YEARS Page 7 June 29, 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge support Chris' 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 from 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 compatibility requests that were not in the best interest of the 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 from "dying a 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 did not elevate the Phased Approach selection to the CEQ after the FEIS. Clarence asked if the meeting attendees were ready to move forward with Phase I. Renee said that she was willing to go along with Chris' proposal, but we still need to address the adverse effects of Phase I. She said an adaptive management process for future phases would have to include determining the likely impacts to the Refuge's historic landscape as a result of future phases. Thayer said that he would like to reserve judgment on Chris' suggestion until after the meeting between the FHWA 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 forward. Bill said that the Review Board agreement basically says what Chris is suggesting. He said it seems like the team is basically back to where we were two years ago at the time of that agreement. He 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 construction of Phase I limiting future options. Chris said that no agency challenged the FEIS to CEQ, 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, he understands that other agencies want flexibility with future phases, which is something that the FHWA thought the Road North/Bridge South Alternative increased. He 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 agreement at today's meeting would be included in the ROD. Over a Century of Engineering Excellence B-116 too YEARS Page 8 June 29, 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge Clarence asked if the Merger Team needed to prepare a formal agreement for the outcome of today's meeting, including the possibility of forming an adaptive management plan. Chris said that he thought we should prepare a memorandum of understanding or agreement in order to document that all of the Merger Team member agencies agreed with the outcome of the meeting. Pete asked what the ROD would state with respect to the other project alternatives. Clarence responded that FHWA would think about this and then discuss a proposed strategy with other team members before finalizing what would be in the ROD with respect to the other project alternatives. Dennis commented that with respect to an adaptive management plan, the Refuge manager would still have the final say on decisions within the Refuge. He asked if this would be addressed in the ROD. Beth responded that the Refuge manager's rights with respect to legal issues in the Refuge would be recognized under an adaptive management agreement. Dennis asked where would the funding come from for implementing ideas generated from the adaptive management plan within the Refuge. He also asked if such funding would be committed to in the ROD. Clarence responded that it would be hard to answer that question today. Dennis said that he realizes this needs more thought, but he thought some level of detail of commitments would be needed in the ROD. Clarence said that he did not see this as a major stumbling block, but he does not want to speak for NCDOT. Thayer said that he is not sure if NCDOT fully understands what the concept of adaptive management means to the DOI, and that we need to be careful that the different agencies are not speaking in different "languages" about the same terms. Pete said he would send the team members a link to the DOI webpage that explains the agency's concept of adaptive management. Clarence and Beth briefly summarized the discussions at today's meeting and asked if there was an agreement to move forward based on the 2007 Review Board agreement without any changes. All agencies in attendance agreed to move forward based on the 2007 Review Board agreement. Chris added that the Merger Team needs to try to gain a better understanding of how DOI handles adaptive management, and then work together to develop a framework for moving forward with the concept of adaptive management for future project-related decisions. Beth said that currently the ROD is scheduled to be released in October and the designibuild contract is scheduled to be let in February 2010, with construction likely starting about one year later. In response to a question from Cathy, Beth said that the permit process would likely begin by the spring of 2010. Over a Century of Engineering Excellence B-117 too YEARS Page 9 June 29, 2009 Minutes: May 21, 2009 Merger Team Meeting for Bonner Bridge Bill asked about a memorandum of understanding or agreement for today's agreement. Beth responded that FHWA and NCDOT would initiate this effort. Clarence added that they would think about whether or not a memorandum of agreement was needed now, or just the commitment to do one. Bill asked if the Merger Team would be informed about the results of the meeting next week between the FHWA and DOI lawyers. Clarence said that he would provide information about the results of the meeting to the Merger Team. Gary Jordan noted for the record that the USFWS never concurred with the Phased Approach Alternative as the LEDPA, but the decision was elevated above them. Bill asked Beth for clarification on whether NCDOT was going to revise the language in the Review Board agreement related to the Phased Approach for the ROD. Beth responded that the wording in the Review Board agreement says that it is "expected" that the Phased Approach would be identified in the ROD as the LEDPA, not that it "will be" the LEDPA. Therefore, NCDOT needs to take a closer look at this issue before determining the exact wording for the ROD. Leilam Paugh asked if there would be a separate meeting to discuss Phase I mitigation with the agencies. Beth responded that NCDOT was planning to have a meeting, but the exact time would be worked out later. Bill Biddlecome then adjourned the meeting. rile no.: 3301-2.7.2 S:\PDEA\Folder with Project names\Yamamoto_Projects\Smyre\B-2500\Merger Team Meetings\5-21-09\Bonner Merger Team Meeting Minutes (5-21-09)- FINAL.doc Over a Century of Engineering Excellence B-118 ,,.tea STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION BEVERLY EAVES PERDUE EUGENE A. CONTI, JR. GOVERNOR SECRETARY September 23, 2009 To: September 17, 2009 Bonner Bridge Merger Team Meeting Attendees From: Beth Smyre, PE Project Planning Engineer Subject: NC 12 Replacement of Herbert C. Bonner Bridge, (Bridge No. 11) over Oregon Inlet, Dare County, WBS No. 32635, Federal-Aid No. BRS- 2358(15), TIP No. B-2500 Merger 'T'eam Meeting Summary A merger team meeting was held on September 17, 2009 for the subject project. The following people were in attendance: Scott McLendon US Army Corps of Engineers (USACE) Ron Sechler National Marine Fisheries Service (NMFS) Clarence Coleman Federal Highway Administration (FHWA) Ron Lucas FHWA Chris Militscher US Environmental Protection Agency (USEPA) Kathy Matthews USEPA Rosemary Hall USEPA Mike Murray National Park Service (NPS) Thayer Broili NPS Sara Winslow NC Division of Marine Fisheries (NCDMF) Travis Wilson NC Wildlife Resources Commission (NCWRC) Jim Gregson NC Division of Coastal Management (NCDCM) Jim Hoadley NCDCM Cathy Brittingham NCDCM Renee Gledhill-Earley State Historic Preservation Office (SHPO) David Wainwright NC Division of Water Quality (NCDWQ) Amy Simes NC Dept. of Environment and Natural Resources Jerry Jennings NCDOT- Division I Greg Thorpe NCDOT- Project Development & Environmental Analysis Rob Hanson NCDOT- PDEA Brian Yamamoto NCDOT- PDEA Beth Smyre NCDOT- PDEA MAILING ADDRESS: LOCATION: NC DEPARTMENT OF TRANSPORTATION TELEPHONE: 919-733-3141 TRANSPORTATION BUILDING PROJECT DEVELOPMENT AND ENVIRONMENTAL ANALYSIS FAX: 919-733-9794 1 SOUTH WILMINGTON STREET 1548 MAIL SERVICE CENTER B-119 RALEIGH NC RALEIGH NC 27699-1548 WEBSITE:WWW.NCDOT.ORG B-2500 Merger Team Meeting Minutes September 23, 2009 Phil Harris NCDOT- Natural Environment Unit Bruce Ellis NCDOT-NEU Elizabeth Lusk NCDOT- NEU Michael Turchy NCDOT- NEU Karen Lynch NCDOT- NEU Steve Mitchell NCDOT- NEU Kathy Herring NCDOT- NEU LeiLani Paugh NCDOT- NEU Morgan Weatherford NCDOT- NEU Kerry Vallant NCDOT- Transportation Planning Branch Dave Henderson NCDOT- Hydraulics Lonnie Brooks NCDOT- Structure Design Don O'Toole NC Department of Justice Mark Laugisch NCDOT- Roadside Environmental Unit Virginia Mabry NCDOT- Transportation Program Management Victor Barbour NCDOT- Technical Services KJ Kim NCDOT- Geotechnical Engineering Harrison Marshall NCDOT- Human Environment Unit Ray McIntyre NCDOT- TIP Development Unit Thomas Stoddard NCDOT- TIP Development Unit John Page PB Representatives from the USFWS (Raleigh and Manteo offices) were not present. Part I: Discussion of Wetland Mitigation for Phase I The meeting consisted of discussion of anticipated impacts due to the construction of Phase I to wetlands, submerged aquatic vegetation (SAV), and National Park Service (NPS) property; this was followed by a discussion of appropriate mitigation or conservation measures for each impact type. This project will follow a phased mitigation approach with the proposed phased construction of the preferred alternative. Impacts to US Fish and Wildlife Service (USFWS) property will be discussed at a later date since USFWS representatives were not in attendance. The Team reviewed Figures E-2g and E-2h from the FEIS and Table 1 from the merger packet that illustrated the biotic communities, including wetlands, which were delineated within the Parallel Bridge Corridor. Table 1 provides a range of impacts to identified wetland types including man-dominated, salt shrub, maritime grassland, overwash, maritime shrub thicket, reed stand, and CAMA wetlands of salt flat, brackish marsh, smooth cord grass, and black needlerush. The final impact numbers could change based on the final design and landing points of the bridge but will be within the same scale as reported on Table 1. The dominant species and quality of wetland was questioned for the man-dominated type on the table. The merger team would like to see the NCWAM types indicated. NETT will review the area called man-dominated and assess the type and quality of all wetlands according to NCWAM. B-120 2 B-2500 Merger Team Meeting Minutes September 23, 2009 All agencies agreed that offsite wetland mitigation is not preferred for this project. FHWA questioned the use of existing wetland mitigation sites for offsetting impacts. USACE pointed to the exceptional quality and type of habitats associated with the Outer Banks as justification for alternative mitigation and allowed within the new federal mitigation rule. USACE noted that credits from existing wetland mitigation sites could eventually be utilized to compensate for impacts for Phase I. NPS requires that all impacts to Park Service property is mitigated within the park. Other agencies agreed that alternative mitigation or conservation measures would be acceptable. NPS suggested that a phragmites control program could be an appropriate mitigative measure using a 4:1 ratio. NCWRC recommended that any measures take into account site conditions and adjacent phragmites populations, which may require a larger treatment area other than what is dictated by ratios. Additional areas could be used to offset impacts from future phases of the roadway project. NCDWQ will have to discuss fulfillment of no-net-lass policy with their management. NCWAM has been suggested previously by NCDWQ as a method to demonstrate no-net-loss of functions through wetland enhancement. NCDCM stated the Dare County Land Use plan requires 25% of the mitigation within the county. NEU will coordinate with the NPS to develop an appropriate, practicable phragmites control proposal for review by NCDOT and agencies as mitigation for wetland impacts. The Team reviewed the figure included in the meeting package that illustrated the SAV survey transects completed by NEU in June 2009. The survey results show that SAV coverage within the corridor averaged 27.7%, which equates to an estimated 1.68 acres of SAV impacts. Impacts from Table 1 were estimated using 25% average SAV coverage within the corridor. NMFS considers the SAV impact area to be the total amount of potential habitat within the corridor, not just the areas with presence of SAV. This area would be a maximum of 6.04 acres within the right-of-way of Phase I. NEU can refine this acreage by eliminating non-habitat areas such as mud, silt, and deep water areas. Other State agencies would not require any additional mitigation than required by the NMFS. NCDWQ requested SAV mapping of corridor prior to construction. Removal of the existing bridge may result in impacts also. Bridge demolition techniques will be discussed at 4B and 4C meetings. NEU will provide an estimate of the total SAV habitat area, impacts due to shading, and impacts due to fill. NCDWQ discussed construction techniques that could increase impacts, such as jetting piles. The dispersion of material could smother SAV beds. A recent study funded by NCDOT discusses the range of effects. If preventive or clean-up measures are not undertaken, the impacts would be considered permanent. Removal of the existing bridge could be used as on site mitigation of SAV impacts, with consideration given to impacts from bridge demolition. NPS questioned the lack of certainty of SAV habitat restoration by bridge removal. However, the same lack of certainty exists with impacts of the new bridge. NEU will provide an estimate of the potential SAV habitat area under the existing bridge. B-121 3 B-2500 Merger Team Meeting Minutes September 23, 2009 NEU discussed offsite, out-of- kind mitigation of SAV impacts by oyster reef construction. The SAV mitigation panel recommends funding research as a priority. Restoring SAV beds can be problematic in such dynamic environments. SAV tends to be opportunistic and will populate habitat areas as they develop. NMFS will be open-minded and suggested current USACE dredging projects and other civil works projects as potential cooperative opportunities to restore SAV habitat. Dave Lekson (USACE) should be contacted for additional mitigation opportunities. NCDOT should show due diligence in reviewing onsite mitigation and conservation measures. Other measures were suggested for wetland mitigation including restoration of piping plover habitat, control of vegetation encroachment, and enhancement of fisheries. NCDCM also referred to the Coastal Habitat Protection Plan for targeted areas and measures. All mitigation pursued should take into account any Section 7 measures. Part II: Discussion of Draft Preferred Alternative Partnership Agreement The purpose of this portion of the meeting was to discuss the draft (dated September 8, 2009) Preferred Alternative Partnership Agreement that was developed to address how decisions on future phases of the project would be made. The intent of the agreement was to identify the responsibilities of all agencies that must be involved before NCDOT can move forward on future phases and to state protocol for how alternatives for future phases will be evaluated. The agreement was developed based on the suggestion from the USEPA during the May 21, 2009 merger team meeting that an adaptive management strategy that deferred decisions on later phases would best fit this project, due to the unpredictability of the environment within the project area. Although the team decided to revise the LEDPA/Preferred Alternative decision during the May 21 meeting, no concurrence form was signed. The group discussed whether the Partnership Agreement was necessary in the current context of the Merger Process; several agencies felt that a Merger Process concurrence form would be more appropriate. Some members of the team expressed concerns about not having the authority to sign a Partnership Agreement on behalf of their agency; however, they were authorized under the current Merger agreement to sign a concurrence form. The concept of adaptive management, first mentioned during the May 21 merger team meeting, was discussed. The Department of Interior's Adaptive Management is a policy for how to manage a resource over time to achieve a desired outcome. Several agencies questioned whether an adaptive management plan should be stipulated in any agreement. The team determined that a Partnership Agreement was potentially more appropriate for the USFWS and the NPS (as managers of the federal lands along the NC 12 corridor) than to the other members of the merger team. USEPA suggested that the US Institute for Environmental Conflict Resolution, an independent and impartial federal program in Arizona, could assist in the development of a Partnership Agreement between the transportation and federal land agencies. The Department of Interior has an Office of Collaborative Action and Dispute Resolution that could also be utilized. B-122 4 B-2500 Merger Team Meeting Minutes September 23, 2009 The team discussed revising the draft Partnership Agreement into a Merger Process concurrence form, which would amend (not conflict with) the Review Board agreement that was signed on August 27, 2007. The concurrence form should include the following: - Recognition that the Review Board agreed that Phase I should proceed as soon as possible; - Review the amount of studies of the project area that have been completed to date; - Recognize the available solutions for later phases that were studied; - Explain why the team agreed during the May 21 meeting that decisions on the later phases of the project could be postponed; and - An additional formalized agreement should be pursued with the US Fish and Wildlife Service and the National Park Service that provides additional information on how decisions about later phases will be made. It was also noted that some discussion may be needed about what would trigger NCDOT and FHWA to reconvene the merger team for future phases. USEPA mentioned that the tenets of the existing draft Partnership Agreement should be included within the Record of Decision for the project. NCDOT asked that the team provide any comments on the existing draft Partnership Agreement as well as any comments on what would trigger the merger team's involvement on future phases by Friday, September 25. NCDOT and FHWA will draft a concurrence form with the above stipulations and send it to the merger team for review. B-123 5 Appendix E: New Preferred Alternative The following describes the Preferred Alternative (Parallel Bridge Corridor with NC 12 Transportation Management Plan) that was approved by the project's Merger Team. The Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative proposes to proceed with construction of Phase I of the Parallel Bridge Corridor as soon as possible. Phase I of the Parallel Bridge Corridor would consist of a parallel replacement structure on the west side of the existing Bonner Bridge. A single conceptual alignment for Phase I is under consideration at the Phase I Bodie Island terminus. The final design in this location would be developed in coordination with the National Park Service (NPS) so as to minimize adverse impacts to Cape Hatteras National Seashore resources. The main bridge structure would be designed in coordination with the US Army Corps of Engineers (USACE) and the US Coast Guard (USCG) so as to maximize the available navigation span and thereby minimize future dredging required within Oregon Inlet. All aspects of Phase I would be designed to conform to North Carolina highway specifications as approved by the Federal Highway Administration (FHWA) and NCDOT to ensure the safe construction and operation of the highway. In addition, other state and federal environmental regulatory and resource agencies would have an opportunity to review and comment on the final design prior to authorization of construction. The Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative (Preferred) does not specify a particular action at this time on Hatteras Island beyond the limits of Phase I. The selection and finalizing of future phases of the Preferred Alternative would be determined through the Merger Process and a separate Partnership Agreement, which FHWA and NCDOT will pursue with the NPS and USFWS (as the federal land management agencies) (See Appendix H). The Merger Process and 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 adverse impacts to the Refuge resources while maintaining NC 12 as a viable transportation facility. Future construction actions within the Parallel Bridge Corridor would be evaluated in cooperation with the appropriate environmental regulatory and resource agencies through the Merger Process and the Partnership Agreement. The Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative is consistent with the Section 404/NEPA Merger Process agreement for this project that was approved in August 2007. The various Parallel Bridge Corridor alternatives reflect a reasonably foreseeable range of options that could be implemented in later phases. B-124 45 <rx?? ? 1 T? 4 ? a WANCHESE ; .Bodie Q Island o Q Roanoke o Island Duck Island O O 9-1 LEGEND i Parallel Bridge Corridor 0 Known Submerged Aquatic Vegetation 0 Pea Island National Wildlife Refuge 0 Hot Spots 0 National Oceanic and Atmospheric Administration Navigation Chart - Project Area Depths less than 6 feet (1.8m) Preferred Alternative Phases Phase I Later Phases 0 1 2KM 0 1 2 Miles j Pea Island i AT,;- - - rrr, ?a?; ; n Canal Zone Hot Spot a o? 40 ?O Sandbag Area n\ \?!? Hot Spot Refuge j Hatteras j? Island ?v I Emergency-----V Ferry Dock -Rodanthe 'S' Curves Hot Spot RODANTHE Figure PREFERRED ALTERNATIVE S-1 B-125 Phase I of the Parallel Bridge Corridor with NC 12 Transportation Management Plan NCDOT initially developed several design concepts for the Oregon Inlet replacement bridge and its southern terminus on Hatteras Island; these concepts are represented in the Oregon Inlet bridge component of the Parallel Bridge Corridor alternatives. At a site visit on July 15, 2009, USFWS representatives identified an additional design concept that is considered a minor variation of Phase I of the Phased Approach alternatives, because it would be immediately adjacent to the western edge of the existing NC 12 easement within which the Phased Approach alternatives would be built. This USFWS- suggested variation would encompass a total area for the transportation facility of approximately 7.2 acres (6.9 acres of current easement plus 0.3 additional acres for a total of 7.2 acres). The USFWS also stated at this meeting that their suggested design option would not require a compatibility determination by the Refuge, since it would be considered a minor modification of the NC 12 easement. On September 2, 2009, NCDOT and FHWA met with USFWS and NPS representatives as a follow-up to the July 15, 2009 meeting. During this meeting, NCDOT and FHWA requested that the USFWS consider a larger minor modification beyond the limits that were provided by the USFWS. The design that contains the alignment outside of the USFWS limits provides more room for heavy trucks and recreational vehicles. According to NCDOT Division 1 personnel who will administer the construction oversight of this project, this design provides more separation between the existing Bonner Bridge and the construction of the new bridge. This increases the safety to the motorists that will be traveling on existing NC 12 during construction. This slightly different version (see graphic below) would encompass a total area for the transportation facility of approximately 3.08 acres (2.91 acres of current easement plus 0.17 additional acres for a total of 3.08 acres). This NCDOT variation will be evaluated for Section 4(f) applicability. NCDOT and FHWA will continue to coordinate with the USFWS to resolve the alignment for Phase I of the Parallel Bridge with the Transportation Management Plan. Though there may be changes to this proposed alignment as coordination with the USFWS continues, the impacts are expected to remain within the range of Phase I impacts proposed for the Parallel Bridge Corridor alternatives. Following are graphical representations of the proposed NCDOT variation (based on the USFWS concept). B-126 Parallel Bridge Corridor with NC 12 Transportation Management Plan Phase I Conceptual Design Impacts Main Bridge Design Approximate amount of new (100') easement needed for new bridge 127,900 square feet 2.91 Acres Potential amount of existing 142,600 square feet easement available to be returned 3.27 Acres Re u e Parkin Lot Access How traffic would access Via intersection with Refuge parking lot SR 1257, and remnant of existing NC 12 Approximate amount of new easement needed for Refuge 7,300 square feet parking lot access 0.17 Acre Former USCG Station Access How traffic would access Via SR 1257 USCG Station Amount of new easement needed for USCG Station None access Length of Existing NC 12 needed to maintain access to USCG Station None access road B-127 i? i QO iJ 1 S ----- ---y_ f' " I 1 I Ir N 1 ? - 1 1 ? n n 1 ?y? a q OW _ 1 f - C $ WK y3 f LLJ a n v`? ALM ' f+ 1y? a q` Lu 4 3 B-128 A t. Y' Y I 1 . i J?l 1 1 ? o ,\ v a "? ~ a / 06K Q N 3 f ? M b ofY m ixj \ J ? go $ m Cli w \ J ORK a? $ 42 B-129 Appendix F: Draft Section 106 Programmatic Agreement The draft version of the programmatic agreement to resolve adverse effects from the project on historic resources has been, and continues to be, coordinated and developed in consultation with the NC State Historic Preservation Officer, the Advisory Council on Historic Preservation, and consulting parties. The Programmatic Agreement will be finalized prior to the Record of Decision. B-130 Draft PA for B-2500 9/8/09 PROGRAMMATIC AGREEMENT AMONG THE FEDERAL HIGHWAY ADMINISTRATION, THE ADVISORY COUNCIL ON HISTORIC PRESERVATION, NORTH CAROLINA STATE HISTORIC PRESERVATION OFFICER AND THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION FOR THE REPLACEMENT OF HERBERT C. BONNER BRIDGE (BRIDGE NO. 11) ON NC 12 OVER THE OREGON INLET DARE COUNTY, NORTH CAROLINA TIP PROJECT B-2500 FEDERAL AID PROJECT BRS-2358(15) WHEREAS, the Herbert C. Bonner Bridge (Bridge No. 11, Dare County), built over Oregon Inlet in 1962, is approaching the end of its reasonable service life and as part of NC 12 provides the only highway connection between Hatteras Island and Bodie Island; and WHEREAS, NC 12 has been and continues to be subjected to washouts and disruptions due to storms and other natural events that are a part of the dynamic and ever-changing environment along North Carolina's Outer Banks; and WHEREAS, the Federal Highway Administration (FHWA), in cooperation with the North Carolina Department of Transportation (NCDOT), has determined that replacement of Bonner Bridge is necessary and intends to proceed with construction of a parallel bridge across Oregon Inlet as soon as possible; and WHEREAS, the replacement consists of a parallel structure on the west side of the existing Bonner Bridge in the immediate vicinity of Oregon Inlet, hereinafter defined as the Undertaking/Phase I and described in Attachment A, which has been accepted by the Interagency NEPA/Section 404 Merger Team of which the consulting parties to this Programmatic Agreement (PA) are members, or are represented by the members; and WHEREAS, to address the unpredictability of natural events which could impact NC 12 , this PA shall be incorporated into the NC 12 TMP; and WHEREAS in the future, the NCDOT and FHWA will develop in consultation with the Interagency NEPA/Section 404 Merger Team, the NC 12 Transportation Management Plan (TMP). The NC 12 TMP will be aphased-decision making process that responds to and plans for the dynamic and changing environment in which the Undertaking/Phase Iand future steps to maintain NC 12 as a viable transportation corridor are thoroughly considered; and WHEREAS, the Undertaking/Phase I anticipates retention of the terminal groin and revetment on Hatteras Island, which requires the issuance of a new permit from the U.S. B-131 - I - Draft PA for B-2500 9/8/09 Fish and Wildlife Service (USFWS) under the authority of the National Wildlife Refuge System Administration Act of 1966, as amended (16 U.S.C. 668dd-668ee); and pursuant to 50 CFR 29.21; and WHEREAS, this PA does not pertain to any future road and/or bridge construction south of the Parallel Bridge Corridor undertaken by FHWA and/or NCDOT, nor does it abrogate the USFWS's rights, responsibilities, and obligations to manage Pea Island National Wildlife Refuge pursuant to the National Wildlife Refuge System Administration Act of 1966, as amended (16 U.S.C. 668dd-668ee) and other relevant authorities; and WHEREAS, NCDOT and FHWA have endorsed the application for NC 12 to become a National Scenic Byway as established under the Intermodal Surface Transportation Efficiency Act of 1991, and reauthorized in 1998 under the Transportation Equity Act for the 21 st Century; and WHEREAS, identification of historic properties withi of Potential Effects has been carried out in accordance Historic Preservation's (ACHP) regulations (36 CFR l 106 of the National Historic Preservation Act (16 U. S. WHEREAS, the Undertaking/Phase I A (NRHP)-listed (former) Oregon Inlet U Wildlife Refuge, a property determined WHEREAS, NCDO1 the project out of the 1 includes the Chicamac that dramatic changes and s Area on Section sister of Historic Places the Pea Island National in the NRHP; and fications that keep subsequent phases of >ric District (NRHP-eligible), which also (NRHP-listed), but it is also understood under the NC 12 TMP, for that phase; WHEREAS, FHWA has prepared the FEIS and additional documentation that have identified phases of the Undertaking/Phase I and effects on historic properties and submitted a notice of adverse effect to ACHP, which elected to participate in this consultation; and WHEREAS, the FHWA has consulted with the North Carolina State Historic Preservation Officer (SHPO) and the ACHP to develop this PA pursuant to Section 14(b)(3) of 36 CFR Part 800; and WHEREAS, NCDOT has participated in the consultation and been invited as a signatory to this PA; and WHEREAS, the National Park Service (NPS), the USFWS, County of Dare, the Chicamacomico Historical Association (CHA), and the North Carolina Aquariums (Aquariums) have participated in the consultation and been invited to concur in this PA; B-132 -2- Draft PA for B-2500 9/8/09 NOW, THEREFORE, FHWA, the ACHP, the SHPO, and the NCDOT agree that the Undertaking/Phase I and subsequent phases covered by the NC 12 TMP shall be administered in accordance with the following principles and stipulations to satisfy FHWA's Section 106 responsibilities for these actions. PRINCIPLES FHWA and NCDOT shall adhere to the following principles for replacement of the Bonner Bridge and development and implementation of the NC 12 TMP: 2. 4 6. 7. FHWA and NCDOT commit to plan, design, and implement the Undertaking/Phase I in accordance with the best practices and measures available at the time to avoid and minimize impacts to historic properties. FHWA and NCDOT will seek, discuss, and consider the views of the consulting parties to this PA concerning design and construction options throughout the planning for any subsequent phases. Given the potential for changes in the environment and historic properties, FHWA and NCDOT will, for any subsequent phases, identify and evaluate any properties that are or may be eligible for listing in the NRHP. FHWA and NCDOT will take into account direct, indirect, and cumulative effects on historic properties pursuant to 36 CFR 800.5(a)(1) and will consider measures to improve existing conditions affecting historic properties. As a matter of public policy and in accordance with FHWA guidance at the time, reasonableness of cost shall be consic minimize, or mitigate adverse effects only determining factor in mitigation and the when selecting measures to avoid, storic properties. Cost should not be the associated with the Management of -eligible historic landscape of the Pea and National Wildlife FHWA has an Emergency Relief Program that establishes protocols for coordination with NCDOT and other Federal and state agencies to deal with emergencies. FHWA and NCDOT will comply with 23 CFR 668 and 36 CFR 800.12, and other applicable environmental laws, when a disaster and/or emergency is declared by the appropriate authority. STIPULATIONS FHWA will ensure that the following measures are carried out: 1. Parallel Bridge Corridor Minim ization/Mitigation Measures In order to facilitate planning and streamline development of plans for the Undertaking/Phase I, NCDOT shall, in consultation with the consulting parties, B-133 - 3 - Draft PA for B-2500 9/8/09 develop the following historic contexts to aid in historic planning for the parallel bridge corridor and possible heritage tourism initiatives. A. Ethnographical Context 1) NCDOT will work with the USFWS, SHPO, and NPS to compile an ethnographical context of the men and women that lived and worked in the general project area during the late nineteenth and early twentieth centuries. The context will focus on the area's watermen, fishermen, Civilian Conservation Corps, members of gun or hunting clubs, and life saving station employees. NCDOT will be responsible for the following tasks. a. Gathering oral histories from surviving members of these groups or families. b. Conducting primary and secondary research regarding the activities of these groups. c. Compiling documentary materials and digitizing images. 2) NCDOT will produce a digital document which contains the recorded oral histories and documentary materials. NCDOT shall afford the USFWS, SHPO, and NPS an opportunity to review and comment on the draft digital document. If no comments are received from the USFWS, SHPO, and NPS within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the document. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with address such of the docurr Architect the Phase necessary with several or all consulting parties to stions and comments. NCDOT shall deposit copies ition with USFWS, NPS, SHPO, and the Historic up of NCDOT within three (3) years of the letting of I work with the USFWS, SHPO, Aquariums, CHA, and pile a context for the Coast Guard and Life Saving dlife refuges, and other state and federal "outposts" on ina's Outer Banks. 3) 4) NCDOT will produce a digital document which synthesizes the histories and documentary materials associated with the various sites. In addition, NCDOT will prepare the artwork and text for a brochure that could be used by travelers and residents as a guidebook to locate and understand the significance of the various sites and their place in history of the Outer Banks and the state. NCDOT shall afford the USFWS, SHPO, Aquariums, CHA, and NPS an opportunity to review and comment on the draft brochure. If no comments are received from the USFWS, SHPO, Aquariums, CHA, and NPS within thirty (30) days of confirmed receipt, NCDOT can B-134 -4- Draft PA for B-2500 9/8/09 assume that the reviewing parties do not object to the brochure. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. 5) NCDOT shall deposit copies of the documentation and brochure artwork and text with USFWS, SHPO, Aquariums, CHA, and NPS within three (3) years of the letting of the Phase I contract and will provide 50,000 brochures to tourism organizations such as Historic Albemarle, Coastal Guide, NC Northeast Commission, Outer Banks Visitors Bureau, and state visitor centers. II. Pea Island National Wildlife Refuge rl%, A. Bridge Design Currently, the bridge rail is proposed as a 32-inch concrete parapet with 2-bar, metal rail atop the parapet. Prior to completion of the final design for the Undertaking/Phase I bridge structure within the Pea Island National Wildlife Refuge, NCDOT shall afford the SHPO, USFWS, and NPS an opportunity to review and comment on the plans and specifications for the parapet and bridge rail for NC 12. If no comments are received from the SHPO, USFWS, or NPS within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the proposed design. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. B. Management of NC 12 NCDOT, in consultation with FWHA, USFWS, NPS, SHPO, and the North Carolina Coastal Geological Cooperative, will develop and implement sustainable techniques to protect NC 12 and subsequently ameliorate the adverse impacts to the Refuge and Pea Island. C. Conies of T NCDOT will provide the USFWS and NPS with copies of the cultural resource technical reports previously produced by NCDOT to describe the historic architecture, historic landscape, terrestrial archaeology, and underwater archaeology investigations in the Undertaking/Phase I's Area of Potential Effects. NCDOT will deliver this information to USFWS and NPS within six (6) months of signing the PA. D. Signs NCDOT will provide and install signs within the Refuge, at locations coordinated with the USFWS and NPS, to direct people to the visitor's center and points of historical interest, including prominent Civilian Conservation Corps installations, within three (3) years of the letting of the Phase I contract. B-135 -5- Draft PA for B-2500 9/8/09 E. Exhibits and Kiosks 1) NCDOT will provide the USFWS and NPS with information about the historic significance and structural importance of Civilian Conservation Corps' work efforts in the Refuge for use in exhibits and kiosks that will be made available to visitors. 2) NCDOT will design and produce a custom kiosk at a location specified by the USFWS within three (3) years of the letting of the Phase I contract. The kiosk, like the signs mentioned in Stipulation C above, will be installed or built in a manner consistent with USFWS or the Refuge's Visitor Service Facility Standards. More specifically, NCDOT will research and design the interpretive panels; design the structure, provide funding for fabrication of the kiosk, and install the kiosk at the site. Prior to fabrication of the interpretive panels and kiosk structure NCDOT shall afford the SHPO, ACHP, and USFWS an opportunity to review and comment on the panels and structure. If no comments are received from the SHPO, ACHP, or USFWS within 30 days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the proposed design. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. 3) Once installed by NCDOT, it is the intention of USFWS to maintain the kiosks subject to the availability of appropriated funds. III. (former) Oregon Inlet US Coast Guard Station A. Parking Lot and Access Road 1) NCDOT will make improvements (clearing sand and paving) to the access road (SR 1257) and parking area, if NCDOT needs these areas for staging. If and when the (former) Oregon Inlet Coast Guard Station becomes a viable facility and is open to the public, NCDOT will maintain SR 1257 to the standards of the North Carolina Secondary Road System. 2) For the purposes of this PA, staging areas are defined as (1) the storage of equipment or materials that are needed for the construction/demolition of the bridge over the Oregon Inlet and (2) the placement of temporary offices or trailers. 3) NCDOT shall insure access to the (former) Oregon Inlet Coast Guard Station during construction of the Undertaking (Phase I). B. Suns NCDOT will provide and install roadside signs to direct visitors to the station from Northbound NC 12 and Southbound NC 12 within one (1) month of the replacement bridge over Oregon Inlet being open to traffic. B-136 -6- Draft PA for B-2500 9/8/09 C. Exhibits and Kiosks NCDOT will provide Aquariums with information about the historic significance and structural importance of the Station for use in exhibits and kiosks, which will be made available to visitors. NCDOT will design and produce a custom kiosk at a location specified by Aquariums within three (3) years of the letting of Phase 1 of the project. 1) More specifically, NCDOT will research and design the interpretive panels; design the structure, provide funding for fabrication of the kiosk, and install the kiosk at the site. 2) Prior to fabrication of the interpretive panels and kiosk structure NCDOT shall afford the SHPO, ACHP, and Aquariums an opportunity to review and comment on the panels and structure. If no comments are received from the SHPO, ACHP, or Aquariums within thirty (30) days of confirmed receipt, NCDOT can assume that the reviewing parties do not object to the proposed design. Should any of these parties have questions about or comments on such plans and specifications, NCDOT shall consult with that party, and if necessary with several or all consulting parties to address such questions and comments. 3) Once installed by NCDOT, Aquariums will maintain the kiosks. IV. Context Sensitive Solutions FHWA and NCDOT commit to utilizij at the time during the construction the activities associated with Pea Island/N avoid and minimize all impacts to histi ig the best practices and measures available Parallel Bridge and when implementing C 12 Transportation Management Plan to )ric properties. V. Unanticipated Discovery If additional historic properties are discovered or unanticipated effects on historic properties are found after FHWA approves the Undertaking/Phase I and construction has commenced, FHWA will consult with the SHPO, the property owner, and any Indian tribe that may ascribe traditional cultural and religious significance to the properties in accordance with 36 CFR 800.13(b). If Native American human remains are discovered, NCDOT and FHWA will contact the federal land managing agency so that it may comply with Native American Graves Protection and Repatriation Act (NAGPRA). Inadvertent or accidental discovery of human remains will be handled in accordance with North Carolina General Statutes 65 and 70. VI. Dispute Resolution Should any of the Signatory or Concurring Party(ies) object within (30) days to any plans or documentation provided for review pursuant to this PA, the FHWA shall consult with the objecting party(ies) to resolve the objection. If the FHWA B-137 -7- Draft PA for B-2500 9/8/09 or objecting party(ies) determines that the objection cannot be resolved, the FHWA will forward all documentation relevant to the dispute to the ACHP. Within thirty (30) days after receipt of all pertinent documentation, the ACHP will either: • Provide the FHWA with recommendations which the FHWA will take into account in reaching a final decision regarding the dispute, or • Notify the FHWA that it will comment pursuant to 36 CFR Section 800.7(c) and proceed to comment. • Any ACHP comment provided in response to such a request will be taken into account by the FHWA, in accordance with 36 CFR Section 800.7 (c) (4) with reference to the subject of the dispute. Any recommendation or comment provided by the ACHP will be understood to pertain only to the subject of the dispute. FHWA's responsibility to carry out all of the actions under this PA that are not the subject of the dispute will remain unchanged. VII. Amendments Should any of the Signatory parties believe that any of the terms of this PA cannot be carried out or that an amendment to the shall immediately consult with the other The amendment will be effective on the nnot ag agreem swill b and the NC 12 TMP may provide for any 1 environmental changes and need for permits at b VIII. Termination Any Signatory may terminate this PA by providing notice to the other party(ies), provided that the party(ies) will consult during the period prior to termination to seek agreement on amendments or other actions that would avoid termination. Termination of this PA will require compliance with 36 CFR 800. This PA may be terminated by the execution of a subsequent PA that explicitly terminates or supersedes its terms. If the USFWS does not renew the existing permit for the terminal groin, FHWA shall notify the parties to this PA that the Undertaking will not proceed as planned and that this PA is null and void. In the event that FHWA and NCDOT are unable to proceed with the Undertaking/Phase I as currently proposed, FHWA ries ca B-138 - 8 - terms must be made, that party(ies) party(ies) to develop an amendment. date a copy is signed by all of the original ree to appropriate terms to amend the PA, ent in accordance with Stipulation VIII, e monitored for any changes prior to Draft PA for B-2500 9/8/09 shall reinitiate Section 106 consultation in accordance with 36 CFR Part 800 regarding other alternatives for the replacement of the Herbert C. Bonner Bridge. IX. Duration Unless terminated pursuant to Stipulation VIII above, this PA will be in effect until FHWA, in consultation with the other Signatory and Concurring Party(ies), determines that all of its terms have satisfactorily been fulfilled, which ever time comes first, or if NCDOT is unable or decides not to construct the Undertaking/Phase I. Execution of this PA by FHWA, ACHP, and SHPO, and implementation of its terms, evidence that FHWA has afforded the Council an opportunity to comment on the Undertaking/Phase I, and that FHWA has taken into account the effects of the Undertaking/Phase I on the historic properties. SIGNATORIES: By: Sullivan Federal Highway Administration, North Carolina Date: By: Date: Crow North Carolina State Historic Preservation Officer By: Date: Fowler Advisory Council on Historic Preservation By: Gibson North Carolina Department of Transportation Date: T B-139 -9- Draft PA for B-2500 9/8/09 CONCURRING PARTIES: By: Date: xxx Dare County, North Carolina Manager By: Date: xxx North Carolina Aquariums, (Former) Pea Island US Coast Guard Station Air IWIL, By: Date: xxxx USFWS, Regional Director, Southeast Region By: Date: xxxx National Park Service By: xxxx Chicamacomico Historical Association Date: B-140 -10- Draft PA for B-2500 9/8/09 Attachment A Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative The revised Preferred Alternative, the Parallel Bridge Corridor with NC 12 Transportation Management Plan, 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. Several alternative conceptual designs for Phase I will be evaluated in an Environmental Assessment/Section 4(f) Evaluation. Following a Record of Decision, the exact alignment and pier placement for Phase I would be determined during the final design engineering process. Specifically, the southern bridge approach and its connection to the existing road for Phase I within the Pea Island National Wildlife Refuge would be determined in coordination with the U.S. Fish and Wildlife Service so as to minimize adverse impacts to refuge resources. The northern bridge approach and its connection to the existing road for Phase I on Bodie Island would be determined in coordination with the National Park Service so as to minimize adverse impacts to Seashore resources. The bridge structure itself would be designed in coordination with the U. S. Army Corps of Engineers and the U. S. Coast Guard so as to maximize the available navigation span and thereby minimize future dredging required within Oregon Inlet. All aspects of Phase I would be designed to conform to North Carolina highway specifications as approved by FHWA so as to ensure the safe construction and operation of the highway facility. In addition, all environmental regulatory and resource agencies would have an opportunity to review and comment on the final design prior to the authorization of construction. The Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative does 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, including the State Historic Preservation Office. The Partnership Agreement will 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. Future construction actions within the project corridor would be evaluated in cooperation with the appropriate environmental regulatory and resource agencies in a process stipulated in the Partnership Agreement. The Partnership Agreement will incorporate by reference all relevant planning legislation, including the National Environmental Policy Act, Section 7 of the Endangered Species Act, Section 106 of the National Historic Preservation Act, etc. In addition, the Partnership Agreement shall reference the Section 106 Programmatic Agreement among the Federal Highway Administration, Advisory Council on Historic Preservation, the North Carolina State Historic Preservation Officer and North Carolina Department of Transportation for B-141 - 11 - Draft PA for B-2500 9/8/09 the Replacement of the Herbert C. Bonner Bridge dated dd/mm/yy within the "Mutual Agreements" section. The new Preferred Alternative, the Parallel Bridge Corridor with NC 12 Transportation Management Plan, is consistent with the Section 404/NEPA Merger Process agreement for this project that was approved in August 2007. The Signatory and Concurring parties to the Partnership Agreement shall include those members of the Section 404/NEPA Merger Process team who wish to participate. B-142 -12- Appendix G: Evaluation of the Pamlico Sound Bridge Corridor Alternative as a Feasible and Prudent Avoidance Alternative Under Section 4(f) of the Department of Transportation Act Introduction Section 4(f) of the US Department of Transportation Act of 1966 prohibits FHWA from approving a project using more than a de minimis amount of Section 4(f) property unless FHWA determines (1) that there is no feasible and prudent alternative that avoids using Section 4(f) property, and (2) that all possible planning to minimize harm to the Section 4(f) property has occurred (49 USC § 303 and 23 USC §138). Section 4(f) properties include publicly owned public parks, recreation areas, wildlife or waterfowl refuges, and publicly or privately owned historic sites listed or eligible for listing on the National Register of Historic Places. The United States Department of Interior (USDOI), in its comments on the Final Environmental Impact Statement (FEIS) and Final Section 4(f) Evaluation (FEIS/Final Section 4(f) Evaluation), commented (see Appendix A) "Even though the information presented in the FEIS and Section 40 Evaluation is proposing a Parallel Bridge Corridor alternative, it still demonstrates that the implementation of any of the Parallel Bridge Corridor Alternatives may violate Section 40 because the Pamlico Sound alternative would appear to be a feasible and prudent and would minimize harm to the Refuge (a section 40 property. " However, the FEIS/Final Section 4(f) Evaluation had not addressed whether the Pamlico Sound Bridge Corridor Alternative was a feasible and prudent avoidance alternative under Section 4(f) because the Pamlico Sound Bridge Corridor Alternative was not considered to be an avoidance alternative at that time. Under the Section 4(f) regulations, only avoidance alternatives are analyzed for feasibility and prudence. The Pamlico Sound Bridge Corridor Alternative was not considered to be an avoidance alternative because at that time, FHWA determined that the alternative would use a portion of the Cape Hatteras National Seashore, which is a Section 4(f) property. However, as explained in the Revised Final Section 4(f) Evaluation, recent historical research caused FHWA to reconsider its analysis. FHWA has determined that, because the highway, the Cape Hatteras National Seashore and the Pea Island National Wildlife Refuge (as a refuge) were planned and developed jointly, impacts from the transportation facility would not be considered use of those properties. Therefore, Section 4(f) approvals for use of the Cape Hatteras National Seashore and the Pea Island National Wildlife Refuge (as a refuge) are not applicable in this instance. However, FHWA determined that the Pea Island National Wildlife Refuge is a site on or eligible for the National Register of Historic Places. Therefore, a Section 4(f) approval would be applicable for the Refuge as a historic site. FHWA now must consider whether the Pamlico Sound Bridge Corridor Alternative is a feasible and prudent avoidance alternative to the use of Pea Island National Wildlife Refuge (as a historic property) as part of its Revised Final Section 4(f) Evaluation. The Pamlico Sound Bridge Corridor Alternative would avoid use of this Section 4(f) historic property by constructing an approximately 17.5-mile bridge in the Pamlico Sound that would completely bypass the Refuge. The Pamlico Sound Bridge Corridor Alternative is depicted in Chapter 2 of the FEIS. I B-143 Background The Bonner Bridge Replacement Project has followed an interagency coordination process commonly referred to as the "Merger" Process. This process merges the environmental analysis required to satisfy federal actions under the Clean Water Act and National Environmental Policy Act. Merger Team members include representatives from state and federal transportation and environmental regulatory and resource agencies. As a result of earlier coordination with the Merger Team, the Pamlico Sound Bridge Corridor Alternative was presented to the Merger Team in 2003, and the North Carolina Department of Transportation (NCDOT) agreed to study a number of different alternative alignments in the corridor. The Pamlico Sound Bridge Corridor Alternative proposes to relocate 11 miles of NC 12 roadway within the Pea Island National Wildlife Refuge to an approximately 17.5-mile bridge constructed in the Pamlico Sound. This alternative would completely bypass the Refuge, and it is highly likely that NC 12 within the Refuge would be abandoned. Purpose The purpose of this document is to analyze whether or not the Pamlico Sound Bridge Corridor would be a feasible and prudent avoidance alternative to the use of the Pea Island National Wildlife Refuge. This analysis also addresses and responds to USDOI's comment on the FEIS/Final Section 4(f) Evaluation as to whether or not the Pamlico Sound Bridge Corridor Alternative would be a feasible and prudent avoidance alternative to avoid the Pea Island National Wildlife Refuge. Section 4(f) Feasible and Prudent Standards F14WA regulations implementing Section 4(f) provide the following standards for determining whether or not an avoidance alternative is feasible and prudent, located in the definition of "feasible and prudent avoidance alternative" at 23 CFR 774.17: (1) A feasible and prudent avoidance alternative avoids using Section 40 property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 40 property. In assessing the importance ofprotecting Section 40 property, it is appropriate to consider the relative value of the resource to the preservation purpose of the statute. (2) An alternative is not feasible if it cannot be built as a matter of sound engineering judgment. (3) An alternative is not prudent if (i) It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need; (ii) It results in unacceptable safety or operational problems; (iii) After reasonable mitigation, it still causes: (A) Severe social, economic, or environmental impacts; (B) Severe disruption to established communities; (C) Severe disproportionate impacts to minority or low income populations; or (D) Severe impacts to environmental resources protected under other Federal statutes; (iv) It results in additional construction, maintenance, or operational costs of an extraordinary magnitude; (v) It causes other unique problems or unusual factors; or (vi) It involves multiple factors in paragraphs (3)(i) through (3)(v) of this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude. 2 B-144 Analysis of the Feasibility and Prudence of the Pamlico Sound Bridge Corridor Alternative Feasibility A "feasible" alternative for Section 4(f) purposes is one that is capable of being built as a matter of sound engineering judgment. A Pamlico Sound Corridor Bridge would be a significant engineering feat. The longest bridge built in North Carolina to date is approximately 5.2 miles long. At approximately 17.5 miles, a bridge through the Pamlico Sound Bridge Corridor would be one of the longest bridges in the world. Nonetheless, FHWA and NCDOT do believe that, from an engineering standpoint, a Pamlico Sound Corridor Bridge could be designed and constructed. Therefore, the Pamlico Sound Bridge Corridor Alternative is considered feasible under Section 4(f). Prudence An avoidance alternative may only be eliminated for not being prudent under Section 4(f) if the alternative has specific, severe problems. The issue here is whether construction of the Pamlico Sound Bridge Corridor Alternative "results in additional construction, maintenance, or operational costs of an extraordinary magnitude" or "causes other unique problems or unusual factors." Pamlico Sound Bridge Corridor Alternative Determined "Not Practicable" in the Merger Process During the Merger process, NCDOT identified one of the challenges to the Pamlico Sound Bridge Corridor Alternative to be finding the funding to construct a bridge of this magnitude.' Table G-1 summarizes the Pamlico Sound Bridge Corridor Alternative's lowest and highest initial construction cost estimates as presented in the FEIS in Tables 2-9 and 2-10.2. The cost estimate for the Pamlico Sound Bridge Corridor Alternative ranged from approximately $943 million to $1.441 billion in 2006 dollars. Table G-1. Pamlico Sound Bridge Corridor Alternative Initial Construction Cost (2006 dollars) Low Estimate High Estimate Bridge Construction $929,100,000 $1,425,500,000 Right-of-way $5,245,000 $6,890,000 Bridge Demolition $4,000,000 $4,000,000 Pavement Removal $4,255,000 $4,255,000 Wetland Mitigation $329,000 $512,000 Total $942,929,000 $1,441,157,000 The NCDOT did not identify the Pamlico Sound Bridge Corridor Alternative as its Preferred Alternative/Least Environmentally Damaging Practicable Alternative (LEDPA) because the high construction cost exceeded its ability to finance the project. Instead, NCDOT presented the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge as the preferred alternative to the Merger Team during a May 23, 2007 Merger Team meeting. In this meeting and through a series of meetings summarized in Chapter 8 of the FEIS, NCDOT explained the methodology, data, and results associated ' July 23, 2003 Merger Team Meeting Minutes, September 10, 2003. 2 The cost was estimated as a range rather than a single number in accordance with FHWA guidance for "major projects" over $500 million, which are by nature more complex and have more elements of risk and uncertainty than projects of lesser cost. 3 B-145 with development of the alternative cost estimates presented in the FEIS. Also during the May 23, 2007 meeting, NCDOT presented why NCDOT funding and innovative financing could not be used to implement the Pamlico Sound Bridge. This included a discussion of how the State distributes funds by geographic area based on the 1989 Equity Formula for the Statewide Transportation Improvement Program (STEP). In a follow-up June 20, 2007 Merger Team meeting, the NCDOT provided additional information to the Merger Team. This information included NCDOT's documentation of its cost estimates for alternatives, the Finely Engineering firm's independent estimate of alternative costs, and FHWA's verification of project cost estimates. The NCDOT also provided a handout that outlined applicability of the State Infrastructure Bank, GARVEE Bonds, and tolling for the Pamlico Sound Bridge. This information supported the NCDOT position that based on restrictions in state law; it did not have the financial resources to construct a Pamlico Sound Bridge Corridor Alternative. NCDOT also answered questions regarding its analysis during additional individual meetings with resource agencies during June and July of 2007 and in follow-up correspondence. After the series of meetings, responses to comments, and providing additional detailed information as requested, state and federal resource agency representatives had little comment on the cost estimate methodology and analysis. The NCDOT sought concurrence on the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge alternative as the LEDPA during an August 15, 2007 Merger meeting. Merger Team representatives did not concur that the Phased Approach/Rodanthe Bridge alternative was the LEDPA. The decision for concurrence was elevated to the Merger Dispute Review Board (comprised of US Army Corps of Engineers, NCDOT, North Carolina Department of Environment and Natural Resources, and FHWA representatives). The Merger Dispute Resolution Board met on August 27, 2007 to review agency briefings and hear discussion on the concurrence point. During the Review Board proceeding, none of the Merger Team agencies provided information to contradict the estimated high cost and financing problems that NCDOT had identified for the Pamlico Sound Bridge Corridor Alternative. The Merger Dispute Resolution Board reached concurrence on an approach to advance the Bonner Bridge project. Based on the information presented at that time, the Board concurred that the Pamlico Sound Bridge Corridor Alternative was not practicable,' based on cost estimates, and thus was not LEDPA. The Board also concurred with building Phase I of the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge alternative (short bridge over Oregon Inlet) with every possible effort to be made to touch the bridge down within the existing easement. The Board also concurred that Phase I alone does not meet purpose and need of the project and additional phases will be needed to meet purpose and need.4 Financing a Pamlico Sound Bridge Corridor Alternative with Federal Aid Highway Funds FHWA administers a number of categories of grants-in-aid for highway construction. The Bonner Bridge replacement project is being developed in compliance with federal laws and regulations so that the project will be eligible for Federal-aid highway funds for construction. The standard federal share of a project funded with Federal-aid highway funds is 80 percent. The state would be responsible for paying the other 20 percent of the cost. The 80 percent federal share of the Pamlico Sound Bridge Corridor Alternative ' The LEDPA decision requires a finding that there is no "practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences" (40 C.F.R. § 230.10[a]). To be "practicable," an alternative must be "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes" (40 C.F.R. §230.3 [q]) 4 FHWA, Final Environmental Impact Statement and Section 4(f) Evaluation, NC 12 Replacement of the Herbert C. Bonner Bridge, Volume 2, September 17, 2008, Appendix D 4 B-146 would range from $754,343,200 to $1,152,925,600. There are three traditional methods for Federal-aid financing for the Pamlico Sound Bridge Corridor Alternative: apportioned Federal-aid highway funds; advanced construction cash flow management; and GARVEE bonds. These options are discussed below. Financing with Apportioned Federal-Aid Highway Funds Whenever a consumer purchases gasoline, a federal tax is collected and deposited in the Federal Highway Trust Fund. A complex formula provided by periodic multi-year legislation apportions the Federal-aid funds among the states each year. The traditional method of authorizing a Federal-aid highway contract is for the state to commit the total contract amount needed for the project from that year's apportionment. If NCDOT were to use this method of financing a Pamlico Sound Bridge Corridor Alternative there would be a drastic impact on other highway needs across the state. The total Federal-aid highway funding apportioned to North Carolina over the last five years is shown in Table G-2. Over the last three years, North Carolina has received about $1 billion per year in apportioned Federal-aid highway funds.' These funds are not block grants to the states. Rather, as shown in the table, Congress apportioned 14 different categories of highway grant programs. The Bonner Bridge replacement is not eligible for all the grant categories listed in the table. Funding that could be eligible to be used for the Bonner Bridge would be the National Highway System, Bridge Replacement and Rehabilitation Program, Equity Bonus, and part of the Surface Transportation Program categories of funds. The project does not meet the eligibility criteria of the other programs. Table G-2. Federal Highway Apportionments to North Carolina Federal-Aid Program 2009 2008 2007 2006 2006 Interstate Maintenance $176,973,972 $172,268,070 $174,794,941 $149,924,855 $155,205,333 National Highway System $207,688,264 $203,242,297 $206,781,440 $181,838,229 $186,864,719 Surface Transportation Program $237,173,790 $231,580,249 $236,608,466 $203,141,566 $236,301,154 Bridge Replacement and Rehabilitation $146,290,683 $140,563,218 $133,254,026 $108,916,741 $116,492,030 Recreational Trail $1,719,240 $1,780,661 $1,692,798 $1,578,400 $1,369,950 CMAQ $50,535,860 $48,243,443 $48,797,913 $41,964,818 $42,965,693 State Planning/Research $19,245,953 $17,725,073 $19,086,939 $16,710,356 $15,718,697 Metropolitan Planning $5,677,834 $5,588,967 $5,501,508 $5,358,969 $5,489,337 Equity Bonus $87,017,985 $87,041,256 $97,920,150 $98,324,366 $92,386,941 Appalachian Development $32,921,949 $38,102,372 $38,098,851 $36,964,241 $36,668,688 Rail Highway Crossing $6,199,544 $6,171,837 $6,051,930 $6,215,292 $O6 Highway Safety $37,371,167 $36,020,062 $37,103,109 $31,639,097 W Safe Routes to Schools $5,034,374 $4,050,525 $3,175,243 $2,333,556 $1,000,000 Redistribute Certain Funds $0 $4,498,928 $8,642 $6,697,961 $8,105,300 Total Apportionment $1,013,850,615 $996,876,958 $1,008,875,956 $891,608,447 $898,567,842 Congress has special rules that limit the use of the Surface Transportation Program category of funds. These grants are subject to a suballocation process for use in specified areas as illustrated in Table G-3. 5 North Carolina also received additional funding allocated for specific projects identified by Congress, but the funds are not shown in the table because that funding can only be used for the specific project identified by Congress 6 Prior to SAFETEA-LU, 10% of Surface Transportation Funds were suballocated for safety construction activities (i.e., hazard elimination and rail-highway crossings). 5 B-147 Congress established that 10 percent of Surface Transportation Program funds be set-aside for Transportation Enhancement Projects, for which bridge work is not eligible. Funding is also suballocated to urban areas in the state. Since the Bonner Bridge is not located in an urbanized area, suballocated urban funds could not be utilized for the replacement of the bridge. Funds not subject to the suballocation are "flexible" and can be used for eligible projects in any area of the state. Table G-3. Suballocation of Surface Transportation Program Funds 2009 2008 2007 2006 2005 Tran Enhancement $23,717,379 $23,625,451 $23,660,847 $23,625,451 $23,625,451 Urban Area> 200k $43,576,884 $42,453,736 $43,473,015 $34,152,243 $35,584,872 Urban Area< 200k $69,837,728 $67,522,368 $69,623,602 $56,840,764 $59,546,736 Areas pop < 5000 $19,995,645 $19,995,645 $19,995,645 $19,995,645 $19,995,645 Any Area $80,046,154 $114,418,542 $123,095,059 $68,527,463 $108,830,076 Finally, Table G-4 provides a summary of those program funds for which replacement of the Bonner Bridge would meet the eligibility criteria. The Federal share of the cost of the Pamlico Sound Bridge Corridor Alternative exceeds one-year of eligible funds. The NCDOT would likely have to commit up two years of eligible program apportionments to the Pamlico Sound Bridge Corridor Alternative. As a result, NCDOT would have to defer replacing all other deficient bridges in state for those years. Currently NCDOT statewide transportation improvement program (STIP) has 838 deficient bridges that are programmed for replacement in the years 2009-2015, at a total cost of $1 billion. Additionally, NCDOT would have to defer improvements on the remainder of the National Highway System in those years. The National Highway System includes about 5,400 miles of the major roadways in North Carolina over which 36 percent of the travel occurs. Using the traditional method of federally funding the Pamlico Sound Bridge Corridor Alternative would drastically limit the number of transportation improvement projects that are programmed for the remainder of the National Highway System in North Carolina. Table G-4. Federal Highway Funds Available for Bonner Bridge Replacement 2009 2008 2007 2006 2005 National Highway System $207,688,264 $203,242,297 $206,781,440 $181,838,229 $186,864,719 STP Any Area $80,046,154 $114,418,542 $123,095,059 $68,527,463 $108,830,076 Bridge Replacement $146,290,683 $140,563,218 $133,254,026 $108,916,741 $116,492,030 Equity Bonus $87,017,985 $87,041,256 $97,920,150 $98,324,366 $92,386,941 Subtotal $521,043,086 $545,265,313 $561,050,675 $457,606,799 $504,573,766 While Federal-aid highway apportionments are distributed through the Highway Bill Authorization process, Congress further controls federal highway programming or annual use of federal funds through the establishment of an Obligation Limitation in the Appropriation process. The obligation limitation is the amount of federal funds that the state can actually use to authorize or commit funding for projects in a given year. Table G-5 provides the North Carolina Obligation Limitation for the past five years. Based on the range of the Federal share of the project cost, it is likely that NCDOT would have to commit all its available obligation limitation for at least one-year to fully authorize construction of the Pamlico Sound Bridge Corridor Alternative. The effect would be that NCDOT could not commit to use federal highway funds to advance any other Federal-aid project using the traditional authorization process during that year. 6 B-148 Table G-5. Obligation Limitation to North Carolina 2009 2008 2007 2006 2005 General use $929,798,673 $888,473,966 $885,753,590 $774,973,260 $795,223,400 Specified use $92,058,602 $125,847,081 $101,378,816 $161,131,568 $50,313,261 Subtotal $1,021,857,275 $1,014,321,047 $987,132,406 $936,104,828 $845,536,661 Exempt fromOL $21,070,289 $21,075,924 $23,710,108 $23,807,984 $21,978,691 Available General Use $950,868,962 $909,549,890 $909,463,698 $798,781,244 $817,202,091 In conclusion, it would not be prudent to use the traditional finance method of using apportioned Federal- aid highway funds to authorize the Pamlico Sound Bridge Corridor Alternative, as it would likely consume two years of eligible apportionments and about one year of obligation limitation for the entire state. As a result, NCDOT would have to defer addressing other transportation improvement and safety needs on the National Highway System and would have to defer replacing all of its other deficient bridges in the state using Federal highway funds for nearly two years. Financing with Cash Flow Use ofFederal Aid Highway Funds A second method to finance the Pamlico Sound Bridge Corridor Alternative with Federal highway funds would be for NCDOT to use its "advance construction',7 authority to begin the project with state funds and later convert to federal aid. This would allow NCDOT to begin the project by committing state funds for the entire contract amount. NCDOT would authorize federal funds at an annual rate to cover only the anticipated expenditures over that specific year. Each year, NCDOT would use part of its obligation limitation to convert the previous advance construction project to federal funding. NCDOT currently uses the advance construction cash flow management authority for other projects. The current amount of projects approved under advance construction is $1,691,559,723.8 Currently, NCDOT is planning replacement of the Bonner Bridge as a cash flow project in conjunction with Federal-Aid Grant Anticipated Vehicles Bonds. This means part of federal highway funds will be used to reimburse NCDOT for actual expenses, and other federal highway funds will be used to reimburse NCDOT for debt service associated with bonds proceeds used for construction. NCDOT is pursuing the bridge replacement project as a design-build contract. If the NCDOT had to construct the Pamlico Sound Bridge Corridor Alternative, it would likely use a design-build contract as well. Contract time for a design-build of the Pamlico Sound Bridge Corridor Alternative would likely be four and one-half to five years. For cash flow analysis purposes, it is assumed that payout of the contract would be about 20 percent of the total estimated cost per year. Therefore, the estimated annual expenditures over the five- year period for the Pamlico Sound Bridge Corridor Alternative would range from $188,585,800 (low estimate $942,929,000*0.20) to $288,231,400 (high estimate $1,441,157,000*0.20). The federal share of those estimated annual costs would range from $150,868,640 to $230,585,120. The annual construction costs are roughly 28 percent (low estimate) to 44 percent (high estimate) of all eligible federal funds depicted in Table G-4 for the entire state. NCDOT would have to commit a significant portion of eligible funds annually for the construction contract period of five years. As a result, over this five-year period, NCDOT would have to cut spending on all of its other National Highway System and bridge replacement projects by 28 to 44 percent. It would not be a reasonable use '23 USC. §115(b). 8 FHWA, Fiscal Management Information System, Report FMISW 10A, September 30, 2009. 7 B-149 of the federal highway trust fund to reduce the funds for other transportation needs so drastically for a single project. It should be mentioned that the last five years of federal funding are at record high levels that may not be replicated in next highway authorization law. Apportionments and obligation limitations distributed under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users of 2005 (SAFETEA-LU) exceeded revenue collected in the highway account of the Highway Trust Fund over the same time period. Congress had to transfer $8 billion from the General Fund to cover shortfall in the Highway Account balance during September 2008. Receipts into the Highway Account were $32.9 billion in FY 2006, $33.8 billion in FY 2007, and $31.3 billion in FY 2008 (excluding the transfer from the General Fund). As of 2009, receipts are down from the previous fiscal year and Congress had to transfer $7 billion in August 2009 to cover another shortfall in the account. It is possible, unless Congress raises additional revenue, that available federal funds will be cut substantially from the record levels of highway funding that were authorized in SAFETEA-LU. Financing with Federal Aid Grant Anticipated Vehicles (GARVEE) Bonds Section 311 of the National Highway System Designation Act of 1995 (NHS Act) significantly expanded the eligibility of bond and other debt instrument financing costs for Federal-aid reimbursement. This change to the Federal-aid program was codified into permanent highway law as an amendment to Section 122 of Title 23, United States Code. Since enactment of the NHS Act, a number of states, including North Carolina, either have issued or are considering project financing that utilizes bond or other debt instrument financing mechanisms involving the payment of future Federal-aid highway funds to retire debt. Bonds issued based upon the pledge of future Federal-aid highway apportionments for debt service payments are called Grant Anticipation Revenue Vehicles or "GARVEE" bonds. When a state government issues GARVEE bonds, it is able to build more projects initially than it otherwise could, but its future highway funds will be less since the GARVEE bonds must be repaid out of the state's future apportionments. Reimbursements of bond-related costs are paid on an annual schedule based upon the amount of GARVEE bond proceeds applied to Federal-aid projects. The federal share (80 percent) of the Pamlico Sound Bridge Corridor Alternative would range from $754,343,200 to $1,152,925,600. A North Carolina statute, enacted in 2005, allows NCDOT to use GARVEE bonds to fund needed transportation projects, but places limitations on the amount of GARVEE bond proceeds it could use for transportation projects. One limitation is that the outstanding principal amount of such bonds does not exceed the amount of federal transportation funds that were authorized to the state in the immediately prior Federal Fiscal Year. This limitation in the state GARVEE Act will allow the issuance of bonds in a total aggregate principal amount of approximately average income $1 billion if Congress continues authorization of Federal Transportation funds at recent levels and the interest rates do not change from current patterns.9 Because of this limitation, it is not reasonable to anticipate that GARVEE bond proceeds could be used to fund the Pamlico Sound Bridge Corridor Alternative when comparing the outstanding principal amount of bonds to the estimated federal share of the cost of the alternative. A second limitation in the State statute is the maximum annual principal and interest of such debt do not exceed 15 percent of the expected average annual federal revenue shown for the seven-year period in the recently approved STIP. The current 2009-2015 expected annual federal revenue is about $963 million ($6739.7 =7). Therefore, the maximum debt service for GARVEE bonds, based on the statute and current STIP, would be around $144 million. Table G-6 shows debt-related annual payments based on the 9State of North Carolina, $287,565,000 Grant Anticipation Revenue Vehicle Bonds, Series 2007, Official Statement, September 27, 2007. 8 B-150 estimated range of the federal share of project costs for the Pamlico Sound Bridge Corridor Alternative. The interest rates shown were based on rates as of July 1, 2009, for 15- and 20-year term AA rated revenue bonds. One may note that the GARVEE Bond issuance in the NCDOT Program is based on a 12-year repayment schedule (which is two Federal highway authorization periods). However, for this analysis the repayment term was extended to 20 years as other States have used longer repayment schedules to fund major transportation projects. Table G-6. Estimated GARVEE Bond Debt Related Annual Payments Federal Share Project Costs Principal Annual Rate Bond Term (years) Annual Debt Payment $754,343,200 $760,000,774 4.75% 15 $71,988,135 $754,343,200 $866,123,570 5.33% 20 $62,702,390 $1,152,925,600 $1,161,572,542 4.75% 15 $110,025,469 $1,152,925,600 $1,161,572,542 5.33% 20 $95,833,291 The annual debt-related expenses for a GARVEE bond for the Pamlico Sound Bridge Corridor Alternative based on a various scenarios in the table would fall within the maximum debt service limitation. However, GARVEE Bond debt service for bond proceeds used for the Pamlico Sound Bridge Corridor would use about 44 to 86 percent of the debt service limitation for the single project. NCDOT has already programmed about $950 million in GARVEE Bond proceeds in the 2009-2015 STIP for various other transportation projects across the state. While the current GARVEE program includes flexibility to move projects in and out of the program, NCDOT has already committed the proceeds to other projects around the state. NCDOT has obtained $287,565,000 in GARVEE Series 2007 bonds for use on other transportation projects. The NCDOT is using those bond proceeds to advance 38 projects located in various geographic areas of the state, per the STIR NCDOT anticipates using $13,000,000 of the bond proceeds to fund repairs to the existing Bonner Bridge to maintain the safe use of the bridge during the construction of the replacement bridge. In addition, the NCDOT plans to use $70,000,000 of bond proceeds for replacement of the existing Bonner Bridge.10 It is not likely that NCDOT could use the remainder of its $950 million bonding authority for the Pamlico Sound Bridge Corridor Alternative because it is likely that the debt service maximum limitation would be exceeded. In conclusion, the amount of GARVEE proceeds that could be used to finance a Pamlico Sound Bridge Corridor Alternative is insufficient since NCDOT has already committed substantial GARVEE bond funds to other projects in the state. The statutory limitation on the total outstanding principal prevents NCDOT from issuing GARVEE bonds in the amount that would be needed to fund the federal share of the Pamlico Sound Bridge Corridor. Adding debt service for GARVEE proceeds to build the Pamlico Sound Bridge Corridor to the debt service for other programmed projects would likely exceed the State's statutory debt service limitation. Use of State-Only Funding to Construct the Pamlico Sound Bridge Corridor Alternative The previous analysis focused on the use of federal funds to construct the Pamlico Sound Bridge Corridor Alternative. Federal funds are not the only funding available to NCDOT for its budgeting and programming purposes. The NCDOT budget is established by the General Assembly. NCDOT, through 10 State of North Carolina, $287,565,000 Grant Anticipation Revenue Vehicle Bonds, Series 2007, Official Statement, September 27, 2007. 9 B-151 the Office of State Budget and Management, and the Governor's office, provides input on system needs and use of funds. The General Assembly also establishes appropriations for different highway purposes. Similar to the federal highway program, many of the state-appropriated highway programs have unique factors for distribution of funding to address needs across the state. Figure G-1 shows projected uses of NCDOT appropriations for the state Fiscal Year 2008-2009. NCDOT uses its projected appropriations to address the many needs across the state. NCDOT is responsible for the development, operation and maintenance of 79,067 miles of roads in the state, as well as other transportation modes. Compared to the other states, NCDOT is responsible for the 2nd largest state highway system in the country. A comparison of revenue use per mile of state-administered highways shows that NCDOT has the fourth lowest revenue per mile for state-maintained highways in the country. Table G-7 compares the revenue use by each state for construction, operation and maintenance of state-maintained highways based on information provided in the latest version of Highway Statistics. NCDOT is responsible for 18,161 structures within its state highway system. This includes 12,768 bridges. Replacement of the Bonner Bridge would normally be funded out of the "TIP Construction" slice of NCDOT appropriations. Other Construction S216.9N1 Secondary Roads 169.8 Discretionary Funds 15.0 Spot Safety 9.1 Public Service Rds 2.0 Small Urban Const. 21.0 Debt Service S144.81M GO Bonds 85.5 GARVEE Bonds 59.3 Other Programs S20.6M 1 Capital Improvements 14.4 GIISP and Other 6.2 7.6% Other Modes S184.5M Aviation 47.8 Rail 21.3 Public "transit 83.1 Ferries 32.3 72% All (un,:tuci wn & \Iaint n,uur 1-1 Administration $298.. NI DO 1- 87.1 DMV 129.4 Doll 36.5 Trust fund 45.5 38.3'% TIP Construction $1,499N1 24.5% Highway Maintenance $957.5N1 Municipal Aid $147.8.N1 State Agency Transfers $464.7NI General Fund 165.1 IIiginvay Patrol 195.0 Public Instruction 56.0 Other Agencies 17.7 NCTA Gap tandin, 25.11 Atlminitilratom 5.9 Total Funding=$3.9 Billion Figure G-1. Projected Uses of NCDOT Appropriations for the State Fiscal Year 2008-2009 10 B-152 Table G-7. Revenue Use By State Highway Miles of State Ownership HM-10 Revenues for State- Administered Highways SF-3 thousands $ Revenues per Mile of State- Administered Hi hwa South Carolina 41,430 $1,318,756 $31,831 West Virginia 34,087 $1,085,171 $31,835 Montana 10,780 $429,881 $39,878 North Carolina 79,067 $3,251,332 $41,121 New Mexico 11,994 $592,823 $49,427 Virginia 57,481 $3,151,199 $54,822 South Dakota 7,843 $439,357 $56,019 Wyoming 6,753 $386,151 $57,182 Arkansas 16,432 $958,900 $58,356 North Dakota 7,384 $436,066 $59,056 Missouri 33,681 $2,055,260 $61,021 Nebraska 9,956 $613,723 $61,644 Maine 8,547 $553,325 $64,739 Kentucky 27,530 $1,896,582 $68,891 Iowa 8,909 $805,495 $90,414 Mississippi 10,970 $1,089,531 $99,319 Texas 79,849 $8,416,199 $105,401 Vermont 2,633 $278,507 $105,776 Louisiana 16,687 $1,769,681 $106,051 Tennessee 13,836 $1,487,545 $107,513 Kansas 10,368 $1,117,070 $107,742 Alaska 5,674 $643,873 $113,478 New Hampshire 3,981 $502,225 $126,155 Alabama 10,978 $1,396,585 $127,217 Georgia 17,910 $2,299,582 $128,397 Minnesota 51 11,926 $1,540,282 $129,153 Indiana 4/ 11,183 $1,456,526 $130,245 Wisconsin 11,771 $1,552,768 $131,915 Idaho 4,959 $664,207 $133,940 Pennsylvania 39,843 $5,550,976 $139,321 Delaware 5,275 $808,666 $153,302 Utah 5,848 $932,769 $159,502 Ohio 19,266 $3,144,076 $163,193 Oklahoma 12,287 $2,017,202 $164,174 Nevada 5,381 $1,013,296 $188,310 Colorado 9,110 $1,799,435 $197,523 Oregon 7,532 $1,499,343 $199,063 Michigan 9,696 $2,187,299 $225,588 Arizona 6,813 $1,828,731 $268,418 Illinois 16,083 $4,645,175 $288,825 New York 15,549 $4,789,451 $308,023 Hawaii 928 $286,497 $308,725 Washington 7,043 $2,189,866 $310,928 Maryland 5,150 $1,765,704 $342,855 Connecticut 3,716 $1,335,008 $359,259 Rhode Island 1,104 $608,915 $551,553 Florida 12,069 $7,237,708 $599,694 Massachusetts 2,830 $1,886,895 $666,747 California 15,234 $10,581,429 $694,593 New Jersey 2,326 $6,431,547 $2,765,067 11 B-153 The Bonner Bridge replacement project is located in Division 1. NCDOT previously demonstrated to the Merger Team that the Pamlico Sound Bridge Corridor Alternative would exceed the entire 2007-2013 STIP funding allocated to Division 1. The 2009-2105 STIP provides approximately $1.1 billion over the seven-year period for the distribution region, which includes Division 1 and Division 4. The $1.1 billion is planned to fund 139 projects across 20 counties. The amount available over a five-year period would be about $812 million ($1,137 billion=7 x 5). The low range of the estimate of the Pamlico Sound Bridge Corridor Alternative could not be funded based on the funding allocated to Division 1 and Division 4 over the five-year contract period. NCDOT could not fund the high range of the Pamlico Sound Bridge Corridor Alternative with 2009-2015 STIP funding allocated to Division 1 and Division 4. If NCDOT funded the project, it would result in no other construction improvements in Division 1 (5,136.96 miles of highways) and Division 4 (6,280.33 miles of highways) for a six to seven-year period. The STIP contains about $1 billion for bridge projects across the state, which is generally an average of $140 million per year. This includes $300 million for replacement of the Bonner Bridge. The range of the cost estimates to fund the Pamlico Sound Bridge (see Table G-1) is $943 million to $1.15 billion, which is approximately the same as the amount programmed in the STIP for bridges. FHWA used its National Bridge Investment Analysis System (NBIAS) to forecast the effects of funding one bridge replacement instead of the funding for statewide bridge replacement, rehabilitation and preservation. Figure G-2 represents the results of the NBIAS scenario which compares the number of deficient bridges projected under a $140 million annual program optimized for bridge replacement, rehabilitation and preservation verses no annual funding for bridge projects. The no funding option represents all bridge funding going to the Pamlico Sound Corridor Bridge. The figure shows that the number of deficient bridges in North Carolina would increase by about 2000 bridges by the year 2015 under this scenario. Committing all the funding currently programmed for bridge projects to the Pamlico Sound Bridge Corridor would create a drastic burden on the state's ability to maintain the other bridges on the North Carolina State Highway System. Other Financing Options General Obligation Bonds The use of state general obligation bonds is not a viable source of funds, as the bonds would have to pass a bond referendum, which requires approval of the citizens of the state. Toll Revenue Bonds NCDOT did not consider the use of bond proceeds issued with toll revenue debt service as a funding option of the Pamlico Sound Bridge Corridor Alternative. NCDOT's rationale was the limitation in current North Carolina Statute. In order to convert a route to a toll facility, legislation requires that a free route must also be available. Currently, NC 12 from Bodie Island is the only free route available to access Hatteras Island. The NCDOT nonetheless performed a preliminary toll feasibility analysis for the Pamlico Sound Bridge Corridor Alternative in August 2007. This analysis evaluated the feasibility of applying tolling to fund the Pamlico Sound Bridge Corridor Alternative. Its conclusion was that tolling was not feasible because toll revenues would not support the debt service of required bonds. 12 B-154 AM Mdg-; M end Off N5 T M.,? 09:S :3 1f Figure G-2. Number of Structurally Deficient and Functionally Obsolete Bridges in North Carolina FHWA performed additional analysis to evaluate the feasibility of financing the Pamlico Sound Bridge Corridor Alternative through tolls. Since many toll and major projects include multiple sources of funding, FHWA evaluated scenarios where toll revenue bond proceeds would not be required to finance the entire project cost. This evaluation estimated a minimum toll rate to provide adequate coverage for toll revenue bonds for the low- and high-cost estimates of the Pamlico Sound Bridge Corridor Alternative. The scenario analyses were performed using the following assumptions. • The total project cost included the standard cost categories of preliminary engineering, right-of- way, construction, maintenance, operations, and financing. • The interest and toll rate would be fixed over the life of the loan. • The term of the debt service for toll revenue bonds would be 30 years. • The facility would be open 365 days a year. • There is not a reduction in trips or diversion of traffic due to the route being tolled. One scenario evaluated by FHWA assumed that the NCDOT would commit the Phase I funding for the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge alternative to the Pamlico Sound Bridge Corridor. The STIP currently shows that Federal highway apportionments, GARVEE bond proceeds and state funds being used for the bridge over the Oregon Inlet. In our analysis, the high range of the cost of the short bridge is $395,000,000, which was updated to include the extension of Phase I construction limits discussed in the November 2008 Merger Team meeting. Therefore, we assumed that $325 million in Federal highway funds and State funds plus $70 million in GARVEE bond proceeds would be committed to the Pamlico Sound Bridge Corridor. In this scenario, toll revenues would be used to make up the difference between the cost of the Pamlico Sound Bridge Corridor (low and high cost estimates) and the GARVEE bond proceeds with Federal highway and State funds. The FHWA evaluation (Tables G-8 through G-11) determined that a single-trip toll rate of approximately $18 to $31 in each direction 13 B-155 F EVAL f! Gi AY AO [S TbON ?E Rd?TMEIdf ALLI]CAI 51"STEf? M8/WYE/&rs? Vdentl end i4fleleeWY ?.9oll•Oe bef?je9 would be needed to provide adequate debt coverage to issue revenue bonds for the low and high end of the cost estimate of the Pamlico Sound Corridor Bridge. These individual toll rates are extremely high for a single trip and would likely be a severe hardship to area residents, considering the absence of other transportation choices available for those traveling NC 12. Another scenario evaluated by FHWA assumed that a Transportation Infrastructure Finance and Innovation Act (TIFIA) loan, backed by toll revenue, would be used in conjunction with funding already committed to the Phase I construction of the Parallel Bridge with Phased Approach plus some other gap funding not yet identified. This analysis evaluated the toll rate of an individual trip to support a TIFIA loan, which can be issued for up to one-third of the project costs. This evaluation (Tables G-12 through G-15) determined that a single-trip toll rate of approximately $11 to $14 in each direction would be needed to provide adequate debt coverage for a TIFIA loan for the low and high ends of the cost estimate of the Pamlico Sound Corridor Bridge. In addition, the State would have to find additional funding to bridge the gap between the cost of the bridge and use of available funding for the short bridge supplemented with a TIFIA loan. For example, available Federal highway funds and State funds supplemented by GARVEE bonds is $395 million. A TIFIA loan would provide an additional $342.1 million for the low end of the cost estimate for the Pamlico Sound Bridge. Thus, the State would have to find additional funding to bridge the gap in financing. These toll rates are relatively high considering that some form of other tax would be necessary to provide funding or revenue to support bonds to bridge the funding gap. Cost Summary In summary, the initial construction cost of the Pamlico Sound Bridge Corridor Alternative surpasses the threshold of construction cost of extraordinary magnitude and is therefore not a prudent alternative. The approximately 17.5-mile Pamlico Sound Corridor Bridge would be the second longest bridge in the United States. It also would be the most expensive single structure contract ever awarded in the country. Based on the range of the construction cost estimate ($943 million to $1.15 billion) the contract would use about one year of federal highway funding obligation limitation and about two years of eligible federal highway apportionments. Funding the construction of the Pamlico Sound Bridge Corridor Alternative with GARVEE bonds, state bonds, toll revenue bonds, or financial package with a combination of funding sources was shown not to be reasonable. The construction cost of the Pamlico Sound Bridge Corridor Alternative is roughly similar to funding programmed for bridges in the STIP for the next seven years, statewide. Further, NCDOT could not fund the contract based on the distribution of construction funding to the funding region (Division 1 and Division 4). NCDOT could not fund the construction contract even if all sources of funding provided to Division 1 were committed to this one project. Funding the Pamlico Sound Bridge Corridor Alternative would require changes in legislation governing the state's allocation of funding to address its needs across the state or to increase the amount of indebtedness the state could incur with its GARVEE program. Based on the status of the federal highway program, this would not be a reasonable change. Additional financing through bonding backed by other revenue sources would also require State legislative action. Unique Maintenance Problems Associated with the Pamlico Sound Bridge Corridor Alternative Funding the construction of the Pamlico Sound Bridge Corridor Alternative would create unique maintenance problems of extraordinary magnitude for NCDOT. Using all of the bridge funding in the STIP for the Pamlico Sound Bridge Corridor Alternative would result in an increase in the number of deficient bridges in the state by around 2,000 by the year 2015. Further, the Pamlico Sound Bridge construction cost would likely exceed all available funding for highway construction, operation and maintenance to NCDOT Division 1 over the bridge construction period. Division 1 approximately 14 B-156 receives $200 million per year, depending on State revenues, for all highway construction, operation and maintenance purposes. [Division 1's allocation for STIP programming purposes is $837 million over the 2009 -2015 STIP 7 year period or about $120 million per year. Projected allocations for Secondary Roads, Small Urban, and Economic Development are about $21 million. Projected allocations for Standing Road Maintenance, Bridge Maintenance and Contract Resurfacing are $52 million. Division 1 allocations for Spot Safety, System Preservation and Contingency are about $10 million]. If Division 1 could commit all available resources, it would have to defer all other construction, maintenance, and operational activities for the four- to five-year construction contract. The roadway system in Division 1 (5136.96 centerline miles) would substantially degrade without any type of activity over a five-year bridge construction period. Severe Impact to the Public's Access to the Refuge One project need that supports replacement of the Bonner Bridge is the tourist use of Hatteras Island (including the use of Cape Hatteras National Seashore), use of the Pea Island National Wildlife Refuge, and Dare County's reliance on tourism as its primary industry." Pea Island National Wildlife Refuge reports 2.7 million visitors annually. In addition, the State Historic Preservation Office is seeking improved interpretation of the historic attributes of the Refuge for visitors. This is planned as a mitigation measure for the Bonner Bridge replacement. USDOI indicated in its comments on the FEIS that visitor access to the Refuge is a very important consideration in the analysis of alternatives. In particular, USDOI commented that the Phased Approach/Rodanthe Bridge (preferred alternative in the FEIS) impacts of noise, visual character, and access limitations would rise to the level of substantial impairment to result in a constructive use under FHWA regulations. USDOI comments under the heading of "Access:" stated: "As a result, even though the Preferred Alternative would nominally afford access to the Refuge, the Visitor's Center would no longer be available, and we anticipate that the quality of the visitor experience would be degraded to the point that the visitation maybe reduced. This would represent a substantial loss to the American public." Implementation of a Pamlico Sound Bridge Corridor Alternative is expected to result in a severe access impact to Refuge visitors. The Pamlico Sound Bridge Corridor Alternative would eliminate vehicular access from Bodie Island to the north end of the Refuge since the Pamlico Sound Bridge Corridor Alternative would bypass the Refuge and touch down well south of the Refuge in Rodanthe. Should access remain passable at the south end of the Refuge, the Pamlico Sound Bridge Corridor Alternative would substantially increase individual one-way trips to the visitor center, the impoundments in the Refuge, fishing areas, and the historic Oregon Inlet Coast Guard Station by roughly 30 miles (Figure G- 3). This would represent a substantial increase in vehicle-miles traveled for millions of annual visitors that travel to visit and enjoy the outstanding natural and scenic beauty afforded in the Refuge. Additionally, work performed for the FEIS has shown that it is reasonably foreseeable that a breach through the island will occur by 2060 at the southern end of the project near Rodanthe, thereby severing vehicular access from the relocated highway corridor. This elimination of vehicular access from the south, plus the bridge bypassing the north end of the island, would significantly alter and reduce visitor access both in timing and distance. If the Pamlico Sound Bridge Corridor Alternative had been selected as the Preferred Alternative, the Refuge and the National Park Service have indicated they would have intended to maintain some type of access for visitors to the Refuge, although the access would not likely be vehicular. Such access would be " FHWA, Final Environmental Impact Statement and Section 4(f) Evaluation, NC 12 Replacement of the Herbert C. Bonner Bridge, Volume 1, September 17, 2008, Project Need. 15 B-157 much different than the current ease with which visitors can access and enjoy the Refuge via a State Hiahwav Route currently included as an intermodal connector on the National Hiahwav Svstem. e ? a LiA r .1 $ S? rn Q LJL ? e ¦ r p ¦ ¦ c 3? A -A u? ' G7 5 i ,. Ak` ?i W ?.3 LPL ? If?l w = C C C7 O Cn Cn LLJ C¦1 G C.3 C.3 LLJ LPL' CL h- u¦1 U C C.3 B458 In summary, the Pamlico Sound Bridge Corridor Alternative would have a severe adverse impact on access to the island. While this impact alone may not be so severe as to make the alternative imprudent for Section 4(f) purposes, in conjunction with the increased costs of extraordinary magnitude described above, the alternative is not a prudent alternative. Conclusion Feasible and prudent avoidance alternative decisions are intended to be fact-specific decisions that consider the totality of the circumstances, including the type, function, and significance of the Section 4(f) property. The historical review of how present-day NC 12 and the Refuge/Seashore have developed together caused FHWA and NCDOT to reassess the prudence of staying within the bounds of the existing right-of-way at all costs. The previously perceived need to strictly stay within the existing right-of-way- which drove the selection of the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge Alternative as the LEDPA/Preferred Alternative-is an artificial and imprudent constraint that is inconsistent with the preservation purpose of Section 4(f). As has occurred throughout the history of the National Seashore and Refuge, a prudent Bonner Bridge Replacement Alternative can be provided that maintains the transportation need for a safe NC 12 while at the same time protecting the important activities, features, and attributes of the Refuge. In order to protect the road from the eroding shoreline, the NCDOT working with the USFWS has relocated NC 12 to the west of the original easement in the Refuge four times in the past without any documented significant environmental impacts. The relocations amount to approximately six (6) miles of road relocations along this segment of NC 12, which is nearly half the length of NC 12 from Rodanthe to Oregon Inlet. The construction cost of the Pamlico Sound Bridge Corridor Alternative would be of extraordinary magnitude in consideration of the funding available to the NCDOT to operate, improve and maintain its state highway system. Implementation of the Pamlico Sound Bridge Corridor Alternatives in a single construction contract would create a unique maintenance problem of extraordinary magnitude for NCDOT as it would have to defer much needed improvements on the remainder of the state highway system in North Carolina for a significant period of time. The Pamlico Sound Bridge Corridor Alternatives would also result in severe adverse impacts to access to the Refuge. In summary, FHWA has determined that the Pamlico Sound Bridge Corridor Alternative would not be a feasible and prudent avoidance alternative as defined in 23 CFR 774.17. 17 B-159 Table G-8 PRELIMINARY TOLL FEASIBILITY ANALYSIS Low Range Cost Estimate for Pamlico Sound Bridge Corridor Law Estimate (2006 $) Project Description Limits: County(s): Existino Parallel Route: Length (miles) Plumber of Lanes: Projected Traffic Effective Toll Assumptions North of Oregon Inlet to Rodanthe Dare US 264 PJC 306 .+ NC 101 /US 70 17.5 2 9600 vehicles per day in year 2025 ? I la.oa Preliminary Engineering Cost 1011.1o of Construction Cost if not Known Right-of-way Acquisition Cost 5.245,000 Maintenance Cost; lane mile $470.000 Tall Rate per mile $1.03 Unit Transaction Cost for Toll Collection $0.40 General Revenue Bond Interest Rate 5.50% TIFIA Interest Rate As of 4/6?09 3-61% Economic Innuts Preliminary Engineering Cost' $ 93.763.400 Ri ht-of-lovay Cost` $ 5,245,000 Construction Cost S 937,684 000 Project Cost S 1 036.697 400 Federal-Aid. GARVEE and State Funds S 395.000.000 Bond Debt S 696 536.073 Economic Evaluation Annual Revenue $ 63.072.000 Annual Operations and I'daintenance Cost $ 17.351.600 Annual Bond Payments S 43.237 333 General Revenue Bond Coverage Ratio 1.86 TIFIA Coverage Ratio 1.10 18 B-160 Table G-9 Project Description: County(s): Limits: NCDOT Planned Improvements: Existing Parallel Route Preliminary Engineering Cost (SJ Right of Way Cost {S) Construction Cost (S) Maintenance Cost per lane mile ($) Number of lanes Length of Loan (YR) TIFIA Bond Rate I(%) General Revenue Bond Rate (%) Length of project (miles) ADT ADT Year Toll Rate per mile Federal-Aid, GARVEE and State funds (Sj Unit Transaction Cost (S) Effective Toll (S) Total Bond Debt (S) Senior Bond Dept (S) Debt Service Reserve Account {S) Bond Issuance Cost (S) Total Senior Bond Dept (S) Junior Bond Debt (S) Cost of Issuance (S) Application Fee (S) Total Junior TIFIA Dept (S) PRELIMINARY TOLL FEASIBILITY ANALYSIS 7 n e Cost Estimate for Pamlico Sound Bridge Corridor B-2500 - Benner 6ridoe Replacement - Pamlico Sound Alternative 93 768 400 (Assumed 10% of Construction Cost) 5.245.000 (Cost Included in Final EIS) (Cost Include- Bridge Demo . Pavement Removal. 937,884,000 Bridge Const_ & Wetland Mitig -) 470.000 (Cost Included in Final EIS) 2 (Information From Final EIS) 30 (Information From Final EIS) 361% 5.500% 17 50 (Information From Final EIS) 3 18.00 %nnual Senior Debt) to be 101% of Annual Senior Debt) of Project Cost) _ Daily Revenue (S) 172 80 0 (calculated) Annual Revenue (S) 63.072.00 0 (calculated - based on 365 days/year) Average Annual Maintenance Cost (S) 16.450.00 0 (calculated) Average Annual Operating Cost (S) 1.401.60 0 (calculated - based on 365 daysivear) Average Annual O & M Cost (S) 17.851.60 0 (calculated) Annual Senior Debt Bond Payments (S) 24.349.947 4 6 (calculated) Senior Debt - Coverage Ratio 1 8 6 Coverage Ratio Goal - 17 Annual Junior Debt TIFIA Payments (S) 18 887,435 6 6 (calculated) Junior Debt - Coverage Ratio 1.1 0 Coverage Ratio Goal - 1.1 19 B-161 Table G-10 Project Description Limits: County(s): Existing Parallel Route: Length (miles) Number of Lanes: Projected Traffic Effective Toll Assumptions North of Oregon Inlet to Rodanthe Dare US 264 NC 306 r NC 101 / US 70 17.5 2 9600 vehicles per day in year 2025 $ 51.40 Preliminary Engineering Cost ` 10°.x4 of Construction Cost if not known Right-of-way Acquisition Cost 6.890.000 Maintenance Cast! lane mile $470,000 Tall Rate per mile $1.70 Unit Transaction Cost for Toll Collection $0.40 General Revenue Band Interest Rate 7.50% TIFIA Interest Rate As of 4j6.+09 3-61%1 Economic Inputs Preliminary Engineering Cost " $ 141426,700 Right-of-way Cost's S 6890,000 Construction Cost S 1 434 267.000 Project Cost S 1 584 583 700 Federal-Aid_ GRAVEE. and State funds S 395 000 000 Bond Debt S 1,310.966.710 Economic Evaluation Annual Revenue $ 110.025.600 Annual Operations and Maintenance Cost $ 17.851.600 Annual Bond Payments $ 83,039.756 General Revenue Bond Coverage Ratio 1.70 TIFIA Coverage Ratio 11.32 PRELIMINARY TOLL FEASIBILITY ANALYSIS High Range Cost Estimate for Pamlico Sound Bridge Corridor High Estimate (2006 S) 20 B-162 Table G-11 High R: Project Description: County(s): Limits: NCDOT Planned Improvements: Existing Parallel Route Preliminary Engineering Cost ($) Right of Way Cost [$) Construction Cost [$) Maintenance Cost per lane mile [$J Number of lanes Length of Loan (YR) TIFIA Bond Rate [%) General Revenue Bond Rate [%) Length of project (miles) ADT ADT Year Toll Rate per mile (Federal-Aid, GRAVEE, and State funds ($) Unit Transaction Cost [$) Effective Toll ($) Total Bond Debt ($) Senior Bond Dept ($) Debt Service Reserve Account ($) Bond Issuance Cost ($) Total Senior Bond Dept ($) Junior Bond Debt ($) Cost of Issuance [$J Application Fee [$J Total Junior TIFIA Dept [$] Daily Revenue ($) Annual Revenue ($) Average Annual Maintenance Cost ($) Average Annual Operating Cost ($) Average Annual O & M Cost ($) Annual Senior Debt Bond Payments ($) Senior Debt - Coverage Ratio Annual Junior Debt TIFIA Payments ($) Junior Debt - Coverage Ratio ;ELIMINARY TOLL FEASIBILITY ANALYSIS Inge Cost Estimate for Pamlico Sound Bridge Corridor B-2500 - Bonner Bridge Replacement - Pamlico Sound Alternative Dare North of Oregon Inlet to Rodanthe Bridge Replacement US 264 .+ NC 306 .+ NC 101 .+ US 70 143,426,700 (Assumed 10% of Construction Cost) 6,890.000 (Cost Included in Final EIS) [Cost Include_ Bridge Demo, Pavement 1:434.267,000 Removal. Bridge Const& Wetland 6litig 470,000 (Cost Included in Final EIS) 2 (Information From Final EIS) 30 (Information From Final EIS) 3.61 % 5.50% 17.50 (Information From Final EIS) 1.79 (calculated) 31.40 189,583,700 (calculated) 166,671,079 (calculated) 185.901.81 (Equal to Annual Senior Debt) 66 667,108 (Assumed to be 1 G% of Annual Senior Debt) 524.088.71 (calculated) 522,912,621 (33% of Project Cost) 500,000 (Estimated Cost) 30.000.00 (Defined by TIFIA) 442621.00 301440, ('calculated) 110,025,600, ('calculated - based on 365 davslvear) 16,450,000 ('calculated) 1,401,600, ('calculated - based on 365 days../year) 54,185 901 811(calculated) 1.701Coverage Ratio Goal - 1.7 28,853 854 56 (calculated) 1.32 Coveraae Ratio Goal - 1.1 21 13-163 Table G-12 PRELIMINARY TOLL FEASIBILITY ANALYSIS TIFIA LOAN Low Range Cost Estimate for Pamlico Sound Bridge Corridor Low Estimate (2006 S) Project Description Limits= North of Oregon Inlet to Rodanthe County(s): Dare Existing Parallel Route= US 264 .r NC 306 .r NC 101 .r US 70 Length (miles) 17.5 Number of Lanes: 2 Projected Traffic 9600 vehicles per day in year 2025 Effective Toll Assumptions Preliminary Engineering Cost " 10°0 of Construction Cost if not knolvn Ri ht-of-,va Acquisition Cost 5.245.000 Maintenance Cost;' lane mile $470.000 Toll Rate per mile $0,63 Unit Transaction Cost for Toll Collection $0.40 General Revenue Bond Interest Rate 5.50%0 TIFIA Interest Rate 'As of 4./6/09 361% Economic Inputs Preliminary Engineering Cost ` $ 93.768.400 Ri ht-of-)Ara Cost $ 5.245.000 Construction Cost $ 937.684 000 Project Cost $ 1 036,697.400 Federal-Aid_ GARVEE. State_ and other funds $ 694.587.258 Bond Debt TIFIA only $ 342.640.142 Economic Evaluation Annual Revenue $ 38.544.000 Annual Operations and Maintenance Cost $ 17851 ,600 Annual Bond Payments $ 18.887.436 General Revenue Bond Coverage Ratio NIA TIFIA Coverage Ratio 1.10 22 B-164 Table G-13 PRELIMINARY TOLL FEASIBILITY ANALYSIS Low R ange Cost Estimate for Pamlico S ound Bridge Corridor Project Description: B-2500 - Bonner Bridge Replacement - Pamlico Sound Alternative County(s): Dare Limits: North of Oregon Inlet to Rodanthe NCDOT Planned Improvements: Bridge Replacement Existing Parallel Route US 264 ; NC 306 1 NC 101 ; US 70 Preliminary Engineering Cost ($) 93,768.400 (Assumed 10% of Construction Cost) Right of Way Cost ($J 5,245.000 (Cast Included in Final EIS) Construction Cost ($) 937.684.000 (Cast Include: Bridge Demo_ Pavement Removal; Bridge Const-. & Wetland IAtig.) Maintenance Cost per lane mile ($) 470.000 (Cost Included in Final EIS) Number of lanes 2 (Information From Final EIS) Length of Loan (YR) 30 (Information From Final EIS) TIFIA Bond Rate (%) 361% General Revenue Bond Rate (%) 5.50;0 Length of project (miles) 17 50 (Information From Final EIS) ADT 9.600 ADT Year 2025 Toll Rate per mile 0 63 (calculated) (Federal-Aid, GARVEE, State, and other funds 694,587.258 Unit Transaction Cost ($) 0 40 Effective Toll ($) 11.00 Total Bond Debt ($) 342,110,142 (calculated) Senior Bond Dept ($) 0 (calculated) Debt Service Reserve Account ($) - (Equal to Annual Senior Debt) Bond Issuance Cost ($) 0 (Assumed to be 10;0 of Annual Senior Debt) Total Senior Bond Dept ($) - (calculated) Junior Bond Debt ($) 342.110.142 (3316 of Project Cost) Cost of Issuance ($) 500-000 (Estimated Cost) Application Fee ($) 30.000.00 (Defined by TIFIA) Total Junior TIFIA Dept f$1 342.640.142.00 Daily Revenue ($) 105.60 0 (calculated) Annual Revenue ($) 38,544.00 0 (calculated - based on 365 days/year) Average Annual Maintenance Cost ($) 16.450 00 0 (calculated) Average Annual Operating Cost ($) 1.401.60 0 (calculated - based on 365 days./year) Average Annual O & M Cost ($) 17.851 60 0 (calculated) Annual Senior Debt Bond Payments ($) 0 0 0 (calculated) Senior Debt - Coverage Ratio #DIV.+0 1 Coverage Ratio Goal - 1.7 Annual Junior Debt TIFIA Payments ($) 18,887,435.6 6 (calculated) Junior Debt - Coverage Ratio 1.1 0 Coverage Ratio Goal - 1 1 23 B-165 Table G-14 PRELIMINARY TOLL FEASIBILITY ANALYSIS TIFIA LOAN High Range Cost Estimate for Pamlico Sound Bridge Corridor High Estimate (2006 S) Project Description Limits: North of Oregon Inlet to Rodanthe County(s) Dare Existing Parallel Route: US 264 / NC 306 f NC 101 i US 70 Length (miles) 17.5 Number of Lanes; 2 Projected Traffic 9600 vehicles per day in year 2025 Effective Toll $14.15 Assumptions Preliminary Engineering Cost 10% of Construction Cost if not known Ri ht-of-way Ac uisition Cost 6.890.000 Maintenance Cost .r lane mile $470.000 Toll Rate per mile $0.81 Unit Transaction Cost for Toll Collection $0.40 General Revenue Bond Interest Rate 5.50% TIFIA Interest Rate As of 4/6/09 3.61% Economic Inputs Preliminary Engineering Cost 143.426.700 Ri ht-of-1,%ray Cost '* $ 6.890.000 Construction Cost S 1 434 267 000 Project Cost S 1 534 533 700 Federal-Aid. GARVEE State and other funds S 1 061 671 079 Bond Debt TIFIA only) $ 523.442.621 Economic Evaluation Annual Revenue $ 49.581.600 Annual Operations and Maintenance Cost $ 17.851.600 Annual Bond Payments $ 28.853.855 General Revenue Bond Coverage Ratio NIA 11FIA Coverage Ratio 1.10 24 B-166 Table G-15 Project Description: County(s): Limits: NCDOT Planned Improvements: Existing Parallel Route Preliminary Engineering Cost ($) Right of Way Cost (S) Construction Cost (S) Maintenance Cost per lane mile ($] Number of lanes Length of Loan (YR) TIFIA Bond Rate (ib) General Revenue Bond Rate (%) Length of project (miles) ADT ADT Year Toll Rate per mile (Federal-Aid, GARVEE, State and other funds Unit Transaction Cost (S) Effective Toll (S) Total Bond Debt ($) Senior Bond Dept (S) Debt Service Reserve Account (S) Bond Issuance Cost (S) Total Senior Bond Dept ($) Junior Bond Debt ($) Cost of Issuance (S) Application Fee (S) Total Junior TIFIA Dept ($) Daily Revenue ($) Annual Revenue ($) Average Annual Maintenance Cost Average Annual Operating Cost (S) Average Annual O & M Cost (S) Annual Senior Debt Bond Payments (S) Senior Debt - Coverage Ratio Annual Junior Debt TIFIA Payments (S) Junior Debt - Coverage Ratio to Annual Senior Debt) ied to be 10% of Annual Senior Debt) of Project Cost} sated Cost} ied by TIFIA} elated} elated - based on 365 dayslyear) - based on 365 days year) (calculated) Coverage Ratio Goal - 1.7 (calculated) Coverage Ratio Goal - 1-1 PRELINIINARY TOLL FEASIBILITY ANALYSIS TIFIA LOAN IUS 264 i NC 306 / NC 101 .+ US 70 1 143.426700 (Assume 10% of Construction Cost) 6.890.000 (Cost Included in Final EIS) 1.434.267.000 (Cost Include- Bridge Demo_ Pavement Removal. Bridge Const_ & Wetland Mitig 470.000 (Cost Included in Final EIS) 2 (Information From Final EIS) 30 (Information From Final EIS) Final EIS} 0.81 (calculated) 1.061.671.079 14.15 25 B-167 Appendix H: Draft Partnership Agreement At the May 2009 Merger Meeting (Appendix D), the Merger team agreed on a need for some type of "memorandum of understanding or agreement" to document how project decisions will be made for future phases of the project. The draft Partnership Agreement contained in this appendix represents the version discussed at the September 17, 2009 Merger Team meeting (Appendix D). Rather than solely relying on this one mechanism to address future decision-making, the Merger Team felt it would be better to limit the Partnership Agreement to (possibly) those agencies proposing the action (e.g. FHWA & NCDOT) and those land-managing agencies (e.g. NPS and USFWS). In addition to the Partnership Agreement, the Merger Team agreed to sign an amended Concurrence Point 43 form (CP43 is the identification of the Least Environmentally Damaging Practicable Alternative). The Merger Team anticipates signing this concurrence form in October 2009. FHWA and NCDOT will continue to work with the land managing agencies on the draft Partnership Agreement to produce an agreement that will allow the project to proceed in a manner that meets the requirements of all parties. B-168 Draft PA for B-2500 9/8/2009 PARTNERSHIP AGREEMENT AMONG THE FEDERAL HIGHWAY ADMINISTRATION, UNITED STATES FISH AND WILDLIFE SERVICE, UNITED STATES NATIONAL PARK SERVICE UNITED STATES ARMY CORPS OF ENGINEERS, NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, AND THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION FOR THE REPLACEMENT OF HERBERT C. BONNER BRIDGE (BRIDGE NO. 11) ON NC 12 OVER THE OREGON INLET DARE COUNTY, NORTH CAROLINA TIP PROJECT B-2500 FEDERAL AID PROJECT BRS-2358(15) Provide a new means of; businesses, services, and • Provide a replacement cros expected through year 2051 • Provide a replacement cros through year 2050; and WHEREAS, from Bodie Island to Hatteras Island for its residents, s prior to the end of Bonner Bridge's service life. that takes into account natural channel migration t provides the flexibility to let the channel move. will not be endangered by shoreline movement This Partnership Agreement (PA) sets forth the cooperative policies and procedures that will guide the parties to manage the NC 12 highway corridor within the Pea Island National Wildlife Refuge ("the Refuge") through the year 2050. The parties agree to work cooperatively as outlined in this PA to maintain a safe public road across the refuge in a manner that avoids, minimizes, and/or mitigates all adverse impacts to the refuge; and WHEREAS, A Final Environmental Impact Statement (FEIS) and Environmental Assessment (EA) have identified the preferred alternative -- the Parallel Bridge/NC 12 B-169 - I - Draft PA for B-2500 9/8/2009 Transportation Management Plan -- and its impact on the human and natural environment; and WHEREAS, NCDOT and FHWA propose to proceed with the construction of Phase I of the Parallel Bridge/NC 12 Transportation Management Plan alternative as soon as possible. Phase I of the Parallel Bridge/NC 12 Transportation Management Plan alternative consists of a parallel replacement bridge structure on the west side of the existing Bonner Bridge in the immediate vicinity of Oregon Inlet. The Parallel Bridge/NC 12 Transportation Management Plan includes a phased-decision making process developed to address the dynamic and changing environment across the length of the study area corridor through the year 2050 for which the undertakings are planned; and WHEREAS, the parties have worked together to WHEREAS, the Environmental Protection Agency (EPA), NOAA-Fisheries Service, and the State Historic Preservation Office (SHPO) have participated in the developme of this PA and have been invited to concur in it, and WHEREAS, concurrence in this PA indicates that party's views were taken into consideration by the signatories. NOW, THEREFORE, the parties agree that the project alternative to be selected in the FHWA's Record of Decision, including all future phases, shall be administered in accordance with the following principles and stipulations in accordance with the following authorities as listed below. h AUTHORITIES The authorities for this PA include, but are not limited to, the following: A. Various Federal Aid Highway Acts, included those codified at 23 U.S.C. §§ 101, 107, 138, 168, 204 & 317 D. National Environmental Policy Act of 1969 (Pub.L. 91-190, 83 Stat. 852), as amended (42 U.S.C. 4321 et seq.) E. Title IV of the Intergovernmental Cooperation Act of 1968 (Pub. L. 90-577; 82 Stat. 1098), as amended (31 U.S.C. 6501 et seq.) B-170 -2- Draft PA for B-2500 9/8/2009 F. Federal Grants and Cooperative Agreement Act of 1977 (Pub.L. 95-224; 92 Stat. 3), as amended (31 U.S.C. 6301 et seq.) G. Executive Order 13352, "Facilitation of Cooperative Conservation," August 30, 2004 1. AGENCY RESPONSIBILITIES F. NCDENR is the lead stewardship agency for the preservation and protection of North Carolina's outstanding natural resources. NCDENR issues Section 401 certifications for impacts to streams and wetlands in compliance with Section 404 of the Clean Water Act. B-171 - 3 - Draft PA for B-2500 9/8/2009 IL MUTUAL AGREEMENTS A. The parties recognize that action must be taken in the near future to address the structural deficiencies of the existing Bonner Bridge which are outlined in Section 1.3.3 of the Final Environmental Impact Statement. B. The parties recognize that the Refuge has been, and is expected to continue to be, significantly affected by forces of nature that cannot be predicted with the degree of certainty required to make prudent decisions today that would cover a period of fifty-one years into the future. F. The parties recognize a mutual responsibility to cooperate for the purpose of preventing and/or mitigating any adverse impacts to birds, fish and wildlife caused by Phase I of the Bonner Bridge replacement project, as well as any impacts caused by the maintenance, and possible future relocations of portions, of NC 12. G. The parties recognize that because a public road predated the establishment of the H. The agencies concur that the remaining phases of work present substantial challenges before the appropriate agencies will be satisfied in order to grant applicable permit and approvals. It will be incumbent on NCDOT to provide the necessary information designated under the Authorities listed in this PA to the permitting agencies to satisfy their needs before permits and approvals are granted. At the time of permit application, all reasonable, practicable and feasible alternatives will be considered and evaluated for each phase. This evaluation will Refuge there is a mutual responsibility to maintain the existence of a safe public road. The parties further recognize the FWS' authority to designate reasonable conditions or restrictions on the maintenance , and possible future relocations of portions, of NC 12 in order to protect refuge resources. B-172 -4- Draft PA for B-2500 9/8/2009 include avoidance, minimization and compensatory mitigation considerations for each selected alternative. The Parties agree to meet as needed to discuss matters of mutual concern affecting the development and implementation the NC 12 Management Plan for the transportation system on the Outer Banks, or any other potential mutual benefit to the Partners. Through evaluation of the benefits and problems in implementing this PA, the parties may determine whether the PA could serve as a model for other cooperative programs and projects that affect the Partners and other transportation and environmental agencies and groups. FH` NC A. [rt of the e project ives of mitoring ionitoring fate time Changing geomorphological characteristics (e.g., the width and elevation of the island, dune height, shoreline position, and nearshore bathymetry); Relative distance from NC 12 to critical geomorphological features (e.g., shoreline, dune, estuarine shoreline) • Storm events and associated NC 12 maintenance activities. After each 5 year period, a report will be prepared that merges these data with that of other geologic and biological datasets from other ongoing studies by others. 2. On an annual (or post-storm) basis, NCDOT will, in consultation with representatives of the Refuge, identify from these data geomorphological trends relevant to a decision to B-173 - 5- Draft PA for B-2500 9/8/2009 move forward with future phases or refine their location. Areas will be identified deserving of extra scrutiny will be identified during the annual consideration of monitoring program findings and what they mean in terms of the timing and location of the implementation of future phases. Based on past experience, warning signs could include: • A distance between the shoreline and the road of less than 650 feet (198 meters) (650 feet is based on measurements of the landward extent of washover fans that developed during Hurricane Isabel and should generally allow natural shoreline processes to occur without notable effects on NC 12 operations); 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. B. Compliance with the National Environmental Policy Act (NEPA) and other Environmental Laws • Prior to any construction activity beyond Phase I, FHWA and NCDOT will prepare any additional documentation that is required to comply with NEPA and Section 4(f), as well as any other applicable environmental laws, prior to taking any action. B-174 -6- Draft PA for B-2500 9/8/2009 • Prior to any construction activity beyond Phase I, FHWA and NCDOT will coordinate with all Signatory and Concurring Parties and comply with Section 106 in accordance with the Section 106 Programmatic Agreement. IV. AMENDMENTS This agreement shall be in effect until ter Amendments, or until FHWA, in consult Party(ies), determines that all phases of t] upon the signature and date of all parties. Section IV. the other Signatory and Concurring are completed. This PA is effective B-175 -7- Draft PA for B-2500 9/8/2009 SIGNATORIES: By: 999999 US Fish and Wildlife Service By: 999999 National Park Service By: McClendon United States Army Corps of Engineers By: Gibson North Carolina Department of Transportation By: North C By: Gibson North Carolina Department of Transportation Date: Date: Date: By: Date: Sullivan Federal Highway Administration, North Carolina r B-176 - 8 - Draft PA for B-2500 9/8/2009 CONCURRING PARTIES: By: Date: xxx Environmental Protection Agency By: Date: xxxx NOAA -Fisheries By: Date: xxxx N. C. Department of Cultural Resources, State Historic Preservation Office B-177 - 9 - Appendix I: Phase I Hatteras Island Termini for Parallel Bridge Corridor Alternatives B-178 H ?` \ ?ti u HO M 4 w? Hm L.L Cr F- cc ZU Z N gww e? p Ow Z F- Z z0 N1}? H H H F- ycLQ ! a wm w UU gF- <mz -j LLI . cr LUwF-_j -J QJQ as ww 2 co =? p.? Q w * j = in cc Q0 r ?e i _ LL a r ?I 4 N N 0 w a z? Ww Y ? }? ?Y qY 9 4 yy a B-179