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HomeMy WebLinkAboutKinston Bypass (10) Section 404/NEPA Interagency Concurrence Point No. 1 - Pui >cess Concurrence Agreement Need and Study Area Defined tfioon Bypass Lenoir, Craven aJones Counties, North Carolina WBS Element No. 34460 STIP Project R-2553 See the Purpose and Need Report for more information on the below Needs for and Purpose of the proposed project. Proiect Need: Inability to Serve High-Speed Regional Travel Consistent with the Strategic Highway Corridors Plan Existing and Future Roadway Capacity Deficiencies . Proiect Purpose Improve regional mobility and capacity for the US 70 Corridor from LaGrange to near Dover by providing a facility that allows for high-speed travel consistent with the North Carolina Strategic Highway Corridors Plan. The Project Team has concurred on this date of June 22, 2010 with the Purpose and Need for the proposed project as stated above and the Project Study Area shown,on; the attached figure. USACE Tom Steffens USEPA Chris Militscher NCDWQ David Wainwright NCDMF Kevin NCDOT Pierce USFWS Gary Jordan NCWRC Travis Wilson NOAA-Fisheries Ron Sechler SHPO USCG Renee Gledhill-Earley Terry Knowles Steve Sollid /7- Z4,z Section 404 / NEPA Interagency Me O3'q&rocess Concurrence Agreement Concurrence Point No. 1 - PurMg! rfd Need and Study Area Defined ?,?ston Bypass Lenoir, Craven A `' anes Counties, North Carolina WB Iement No. 34460 STIP Project R-2553 Project Need: • Inability to Serve Regional Mobility • Existing and Future Roadway Capacity Deficiencies and Travel Delays. Project Purpose: • Improve regional mobility capacity, and travel times for the US 70 Corridor from LaGrange to near Dover with a full-control access facility. The Project Team has concurred on this date of June 22, 2010 with the Purpose and Need for the proposed project as stated above and the Project Study Area shown on, ... the attached figure. USACE NCDOT Tom Steffens USEPA Chris Militscher Mark Pierce USFWS NCDWQ David Wainwright NCDMF Kevin Hart SHPO Renee Gledhill-Earley Gary Jordan NCWRC Travis Wilson NOAA-Fisheries Ron Sechler USCG Terry Knowles Steve Sollod J' .•w 1 ?b I 1q p-??L b 5 -4m C"k54e,41 Pre, t t?/'t-r/.d I % •.. . f <f , c) c , - rr G??c. t ?44? Get?? C?.r- 1 712 / 20 f i/ ?vG? ? s i` Section 404 / NEPA Interagency Merger Process Concurrence Agreement Concurrence Point No. 1 - Purpose and Need and Study Area Defined Kinston.Blbb_ S Lenoir, Craven, and Jon ?s, North Carolina WB 3 4460 tect R-2553 Project Need: • Address traffic congestion, capacity deficiencies, and through-traffic delays on US 70 between LaGrange and Dover. Project Purpose: • Improve regional mobility and capacity for the US 70 Corridor between LaGrange and Dover in accordance with the goals of the North Carolina Strategic Highway Corridors Plan. The Merger Process Team met on (month/day), 2010, and concurs with these Purpose and Need Statements and the Study Area presented on the attached figure. USACE Tom Steffens USEPA Chris Militscher NCDWQ David Wainwright NCDMF Kevin Hart SHPO Renee Gledhill-Earley NCDOT Mark Pierce USFWS Gary Jordan NCWRC Wilson NOAA Ron Sechler USCG Terry Knowles NCDCM Steve Soiled Section 404 / NEPA Interagency Mel Concurrence Point 1: Purpose US 70 Kini Lenoir, Jones, and Crave STIP+Proiec 7L- Z5?3 dSR cr RCS o..? ???i frZdl C7 er Process Concurrence Agreement T a and Study Area Defined ypass 0. Counties, North Carolina No. R-2553 Project Need: • Address traffic congestion, capacity deficiencies, and through-traffic delays on US 70 between LaGrange and Dover. Proiect Purpose: 6errir3ers Rl;; A r< The Merger Process Team met on (month/day), 2010, and concurs with these Purpose and Need Statements and the Study Area presented on the attached figure. . USACE NCDOT rom Steffens USEPA Chris Militscher NCDWQ David Wainwright NCDMF Kevin Hart SHPO Renee Gledhill-Earley Mark Pierce USFWS Gary Jordan NCWRC Travis Wilson NOAA Ron Sechler USCG Terry Knowles NCDCM t Steve Sollod / o// 3//b / 111tr 67e, ,A, _ 47'a Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 1 of 10 ) Introduction NCDOT prepared this paper to be used for reference during the October 13, 2010 Merger Management Team Meeting regarding elevation of the purpose and need for the Kinston Bypass Project. The following topics are presented herein. • Section 404/ NEPA Interagency Merger Process Concurrence Meetings • Elevation Briefs from Non-Concurring Merger Process Team Members • NCDOT's Position Section 404 / NEPA Interagency Merger Process Concurrence Meetings The Merger Process Team conducted a Purpose & Need Concurrence Meeting for the Kinston Bypass on June 22, 2010, but was unable to reach concurrence. NCDOT's proposed Purpose & Need (P&N) Statement identified the inability of existing US 70 to meet the goals of the Strategic Highway Corridors (SHC) Initiative as a deficiency or need. Several team members disagreed that this constituted a "need" for the State of North Carolina. The Merger Process Team reconvened on September 14, 2010 to continue discussions on the wording of the P&N Statement. The team reviewed the following versions during the meeting, which are attached for reference: • the original statement prepared by NCDOT and presented during the June 22, 2010 Meeting; • a revised statement that was crafted during the June 22, 2010 Meeting in lieu of the original statement, which removed the SHC Plan from the purpose and need statements and added a reference to "a full-control access facility" to the purpose statement; • a statement prepared by the U.S. Army Corps of Engineers on July 20, 2010, which described the facility deficiencies in the need statement, and included a three-part purpose statement that described "addressing the deficiencies, the GIS Pilot Study, and the SHC Plan;" • a statement prepared by NCDOT on July 26, 2010 based upon USACE's July 20, 2010 version, which described the facility deficiencies in the need statement, and a purpose statement that described solutions to the deficiencies that would be resolved "in accordance with the goals of the SHC Plan;" and • a statement prepared by the resource agencies on September 8, 2010, which described the facility deficiencies in the need statement, and a two-part purpose statement that described solutions to the deficiencies as a primary purpose and that "planning and design will be conducted in consideration of the goals of the SHC Plan" as a secondary purpose. The Team was divided and unable to reach concurrence during the September 14, 2010 meeting. Some members stated that the SHC Initiative should not be included in the P&N Statement because it Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 2 of 10 ) would limit the alternatives to be studied and would be pre-decisional. Other members stated that the SHC Initiative should not be considered as a primary purpose, but could be included in the P&N Statement as a secondary purpose or secondary benefit. NCDWQ requested elevation of this issue and initiation of the dispute resolution process. The meeting was concluded with USACE requesting elevation briefs. Elevation Briefs from Non-Concurring Merger Process Team Members The U.S. Environmental Protection Agency (USEPA), the U.S. Army Corps of Engineers (USACE), N.C. Division of Water Quality (NCDWQ), and the N.C. Division of Coastal Management (NCDCM) prepared and submitted elevation briefs to USACE and NCDOT during the period from September 14, 2010 to September 30, 2010. The following is a summary of their reasons for non-concurrence. Copies of the five briefs are attached for reference. USEPA's Position: USEPA supports USACE and NCDWQ and the P&N Statement dated September 8, 2010. USEPA will not concur on a statement that limits the range of reasonable and feasible alternatives based upon the SHC Vision Plan. EPA concurs that the SHC Vision Plan is possibly a secondary purpose or a desired outcome, but not the main justification for the proposed transportation project, and doing such would potentially violate 40CFR1 506.1 (a)(2) by limiting the choice of alternatives. In its updated brief dated September 30, 2010, USEPA stated that, "an expressway or even a boulevard may be able to meet some or all of the future transportation problems identified in NCDOT's Merger Purpose and Need concurrence package." NCDWQ's Position: NCDWQ objects to the inclusion of an SHC reference as a primary purpose or need in the P&N Statement. NCDWQ believes that the SHC is a plan for certain transportation corridors within the state and not an identifiable problem related to traffic issues. They further state that it is a goal and should not be included in the primary purpose and/or needs of the Statement because the SHC is not the fundamental reason for proposing the project. Reasons for the project should be addressing traffic congestion, capacity deficiencies, or regional mobility. NCDWQ states that SHC should not be considered a core purpose, but rather at a secondary level as a desirable outcome, and inclusion of SHC in the P&N Statement would limit the alternatives under consideration, thereby potentially violating 40CFR1 506.1 (a)(2). USACE's Position: USACE does not concur with a P&N Statement that includes the SHC Initiative. USACE requests removal of the SHC Initiative as a primary need or purpose in the P&N Statement because the statement should clearly establish measurable evidence of a transportation problem or deficiency. The goals and visions of the SHC Initiative do not represent a metric, a documentable transportation problem or need that requires repair. USACE further states that using the goals of the SHC Plan as the primary purpose would limit the range of reasonable alternatives that could be reviewed, thereby potentially violating 40CFR230 Section 404(b)(1) Guidelines. NCDCM Position: NCDCM finds the SHC reference to be too specific and would limit the alternatives ultimately considered. Specifically, the July 26, 2010 version of the P&N Statement included the phrase, "...in accordance with the goals of the North Carolina Strategic Highway Corridors Plan." This suggests that the goals of the SHCP are to be met in choosing the LEDPA. The Kinston Bypass is described as a four-lane freeway on new location in the SHC Plan. The P&N Statement should not specify the facility type. This could prevent NCDOT from studying alternatives that avoid and minimize Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 3 of 10 ) impacts to the natural and human environment to the maximum extent practicable. The language used, in the September 8, 2010 version, "...in consideration of the goals of the SHCP," would be more appropriate. NCDCM asserts that inclusion of the SHC Initiative in the P&N Statement would potentially violate the Coastal Area Management Act, 15A NCAC 07J.0207, 15A NCAC 07J.0209, and § 113A-120(a)(9). The goals of CAMA are to ensure development of the land and water resources of the coastal area proceeds in a manner consistent with the capability of the land and water for development based on ecological considerations and to ensure the orderly and balanced use and preservation of coastal resources on behalf of the people of North Carolina and the nation. 15A NCAC 07J.0207, AGENCY REVIEW / COMMENTS: MAJOR DEVELOPMENT / DREDGE AND FILL, and 15A NCAC 07J.0209 ISSUANCE OF PERMITS, require NCDCM to circulate major development permit applications to the state review agencies having expertise in each of their respective disciplines. DCM must take into consideration the viewpoints of other state agencies with each concurrence point in the Merger Process. NCDWQ did not concur with the proposed P&N language. NCDWQ requires applicants to consider all practicable alternatives to impacting waters of the state and wetlands during the design of their project. § 113A-120(a)(9), GRANT OR DENIAL OF PERMITS, states that NCDCM may deny an application for a permit upon finding that, considering engineering requirements and all economic costs, there is a practicable alternative that would accomplish the overall project purposes with less adverse impact on the public resources. NCDOT's Position The following discussion presents NCDOT's position and is a summary of the SHC Initiative, specific information regarding the US 70 Corridor as a Strategic Highway Corridor, laws, guidance, and legal precedent for use of the SHC Initiative in purpose and need statements, and the parties responsible for development of purpose and need statements. Use of the SHC Initiative in defining Purpose & Need for other proiects NCDOT prepared the Purpose & Need Statement for the Kinston Bypass Project based upon other strategic highway corridor projects that the Merger Process Teams reviewed and approved. Fourteen previous or ongoing projects included the SHC Initiative in the project need and/or purpose section of the environmental document(s) that were circulated to all agencies represented on either the Merger Process Team or the Steering Committee. Three projects have included a direct reference to the SHC Initiative or a reference to a state transportation plan in their Purpose & Need Concurrence Agreements approved by each project's Merger Process Team. A list of those projects including the SHC Initiative is attached for reference. Please note that some pipeline projects reached concurrence on purpose and need prior to initiation of the formal Merger Process concurrence agreements. However, concurrence was documented in meeting minutes, letters, and/or the approved environmental documents. Since the Merger Process Team accepted the SHC Initiative in the purpose and need statements of the referenced projects, NCDOT questions specific reasons why the Kinston Bypass Merger Process Team requests a change in precedent. Why wasn't this issue raised earlier in the Project Development Process? NCDOT also questions why the Merger Process Team did not raise their objections to the purpose and need for this proposed action earlier in the project development process. NCDOT presented and Purpose & Need Elevation: The Strategic Highway Corridors Initiative . in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 (Page 4 of 10 ) documented its position for a freeway on new location in accordance with the SHC Initiative in the Start of Study Letter, the Scoping Meeting Packet, and the Scoping Meeting PowerPoint Presentation. The subject line in the Start of Study Letter is, "Kinston Bypass, four-lane divided freeway on new location..." The Scoping Meeting Packet included five related references to the SHC Initiative or a freeway. The Project Description was described as, "The Kinston Bypass would be a 12-mile, four-lane, median- divided freeway on new location." The General Project Need was described as, "Capacity deficiencies on existing US 70 Bypass; Strategic Highway Corridor." We also included information on the description of the SHC Initiative as it relates to this project under SHC Information as, "US 70 from Raleigh to Morehead City is designated as a Strategic Highway Corridor (Corridor #46, classified as a freeway)." The Proposed Roadway Typical Section was described as, "four-lane, median-divided." The Proposed Design Speed was listed as, "70 mph." We received comments on the Scoping Meeting Packet prior to the October 28, 2009 Scoping Meeting. The letter from the N.C. Wildlife Resources Commission acknowledged that NCDOT "proposes to construct a four-lane divided freeway on new location." The subject line of the letter from the N.C. Division of Water Quality says, "Scoping Comments on the proposed US 70 Kinston Bypass Freeway on New Location..." Comment #6 in the letter from the U.S. Environmental Protection Agency acknowledges that "access control and potential location / design of interchanges" will need to be discussed. This infers that a freeway facility was to be designed for this proposed action. NCDOT also presented the SHC Initiative and freeway concept during the October 28, 2009 Scoping Meeting. Slide #7 presented the Project Description as, "Programmed as a four-lane, median-divided freeway on new location." Slide #18 presented the General Project Need as, "Capacity deficiencies exist along US 70 and US 70 Bypass, and US 70 from Raleigh to Morehead City is designated as a Strategic Highway Corridor." Slide #32 presented the Design Criteria for the Proposed Facility as, "Functional Classification: Freeway; Type of Access Control: Full Control; Typical Section. 4-lane divided; Right of Way: 250 feet (minimum); Design Speed: 70 mph." Slide #37 presented Special Considerations as, "NCDOT Strategic Highway Corridor and N.C. Intrastate System." In addition, no comments were relayed from the Merger Process Team members upon receipt of the CP1 Concurrence Meeting Packet indicating potential non-concurrence prior to the June 22, 2010 Meeting. Practicable. Prudent. and Reasonable Alternatives The non-concurring Merger Process Team Members assert that inclusion of the SHC Initiative in the purpose and need statement would limit the number of alternatives under consideration. NCDOT is not limiting the number of practical or prudent alternatives to be studied or the routes to be studied by referencing the SHC Initiative as a primary purpose for the project. Our experience and studies to date demonstrate that a boulevard or an expressway would be impractical and ineffective as exhibited by the existing US 70 facility. Some members of the Merger Process Team have stated that "an expressway or a boulevard might meet some or all of the future transportation problems." In 40CFR230, Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material, "the term 'practicable' means available and Purpose & Need Elevation: .The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 5 of 10 ) capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." In 40CFR1502.14, Alternatives Including the Proposed Action, "agencies shall evaluate all reasonable alternatives." These regulations refer to practicable or reasonable alternatives. Guidance indicates they are referring to alternatives that are practical and feasible from a technical and economic standpoint, and using common sense. To meet the purpose and need, an alternative must provide more than a minor improvement. An improvement would be considered minor if it is localized, temporary, and/or largely unnoticeable to the typical user of the transportation system. Alternatives that provide only a minor improvement do not meet the purpose and need, and, therefore, are not reasonable alternatives. A boulevard or an expressway would provide localized and temporary improvements to the capacity problem, but would not address the mobility aspect of the purpose and need for this project. Therefore, boulevards or expressways would not meet the purpose and need, and are not reasonable alternatives for this portion of the US 70 Corridor. Port of Morehead City and the Importance of the US 70 Corridor Ms. Stephanie Ayers, Director of Planning & Development for the N.C. State Ports Authority, provided data on freight hauling and the importance of the entire US 70 Corridor to the Port of Morehead City. "International deep-water ports are transfer points in the flow of cargo. To meet the requirements of increasing volumes and decreasing delivery times, cargo must have free-flowing access to these transfer points, to and from inland markets as well as to and from the ocean. The Ports Authority has identified the US 70 Corridor as its most critical transportation priority for the Port of Morehead City. In just one month, May 2010, the Port of Morehead city moved more than 780 commercial trucks through its gates onto US 70, translating into nearly 16,000 truck tons of cargo on the highway." U.S. Department of Defense and the Importance of the US 70 Corridor The US 70 Corridor is also designated as part of the Strategic Highway Corridor Network (STRAHNET). As defined in 23CFR470.107(b)(3), the STRAHNET includes highways which are important to the defense policy and which provide defense access, continuity, and emergency capabilities for the movement of personnel, materials, and equipment in both peace time and war time. The Port of Morehead City has been identified by the U.S. Department of Defense as, "one of the nation's fifteen commercial Strategic Seaports, capable of simultaneously handing commercial and military requirements. Each Strategic Seaport is unique in its capabilities and provides the Department of Defense with operational flexibility / redundancy and port facilities and services that are critical in meeting a wide-range of national security missions and timelines. Completion of the US 70 Strategic Highway Corridor will provide access from Camp Lejeune to the Port of Morehead City. The US 70 Corridor will also help Seymour-Johnson Air Force Base be more effective as a joint facility providing access to the Port of Morehead City." Local. State. Federal, and Public Involvement in the Development of the SHC Initiative The Strategic Highway Corridors Initiative is a plan that was developed through regional transportation studies by rural planning organizations and NCDOT for more than eight years, and was vetted with municipal, state, and federal officials, and the public. From November 2003 to January 2004, the N.C. Department of Transportation, the N.C. Department of Commerce, and N.C. Department of Environment and Natural Resources co-sponsored a series of public meetings (regional forums) throughout North Carolina to share the Strategic Highway Corridors Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 8 of 10 ) SHC concept, from the beginning of the project development process. Engineers should develop project scopes and make design decisions that are consistent with the corridor vision, including the preparation of Purpose and Need Statements and the development and evaluation of alternatives. Purpose and Need Statements should demonstrate how the project meets the criteria set forth in the SHC concept and describes the need for improvements to the corridor as they relate to the corridor's function and vision. Alternatives should be developed and analyzed in a manner which reflect the mobility and connectivity goals of the vision, while attempting to maximize the use of existing infrastructure." The Kinston BvDass portion of the US 70 Strategic Highway Corridor Existing US 70 in the project area is a Strategic Highway Corridor with partial or no control of access. The capacity of the facility is limited due to congestion at intersections and driveway connections, which are generating delays to through-traffic volumes and increasing the potential for conflict points and crashes. In 2008, average annual daily traffic volumes on US 70 ranged from 12,000 to 40,000 vehicles per day. With the No-Build Alternative, the average annual daily traffic volumes are estimated to range from 24,800 to 55,600 vehicles per day in 2020, and are estimated to range from 35,000 to 79,200 vehicles per day in 2035. It should also be noted that through-movements represent a majority of the traffic on US 70. US 70 warrants the highest level of access control, a freeway with full control of access. A freeway will decrease congestion, improve travel times for through-traffic, minimize conflict points and crashes, and minimize the indirect and cumulative effects of the project. Laws Regulatory Guidance and Legal Precedent for SHCs in Purpose and Need Statements Section 6002 of Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) provides direction in the development of purpose and need statements. "The purpose and need statement shall include a clear statement of the objectives that the proposed action is intended to achieve, which may include achieving a transportation objective identified in an applicable statewide or metropolitan transportation plan, or serving national defense, national security, or other national objectives, as established in federal laws, plans, or policies." This provision is helpful in establishing that goals in transportation plans can and should provide a basis for defining the purpose and need for individual projects. The Federal Highway Administration and the Federal Transit Administration issued joint guidance on linking the transportation planning process and the National Environmental Policy Act. They concluded that "the transportation planning process may be part of the project's purpose and need statement." Specifically, they agreed that "a general travel corridor or general mode (e.g., highway, transit, or highway/transit combination) resulting from planning analyses may be part of the project's purpose and need statement." The Federal Highway Administration issued guidance on potential purpose and need objectives including any statewide plan or adopted urban transportation plan, federal, state, or local governmental mandate for the action, and highway projects that interface with and serve to complement airports, rail and port facilities, mass transit services, etc., all of which are tenets of the Strategic Highway Corridors Initiative. The American Association of State Highway and Transportation Officials recommends that "the purpose and need statement should not be developed on a blank slate. Rather, the purpose and need Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 9 of 10 ) should be informed by policy direction provided in any applicable legislation and transportation plans. An overall vision for the transportation system - on a statewide, metropolitan, or local basis - can provide a starting point for defining the purpose and need of specific transportation projects. This broad vision can be developed by state and local governments through the transportation planning process and in other ways, such as legislation. Some states have identified 'strategic highway networks' connecting major population and employment centers or tourist destinations. The best-known example of this is the Interstate Highway System itself. If a transportation plan establishes a goal of completing a network, the purpose of an individual project can be defined in terms of implementing a portion of that network." The court system has heard and rendered the following decisions involving reasonable alternatives and corridor designations in the purpose and need statement. "Courts have specifically recognized that federal agencies can and should consider legislative direction when determining a project's purpose. Examples include a regional system of highways, a specific highway corridor, or design criteria that must be met by highways within a given system, corridor, or functional class." AASHTO Practitioner's Handbook, "Defining the Purpose and Need and Determining the Range of Alternatives for Transportation Projects (August 2007)." • "We remain mindful that an agency decision concerning which alternatives to consider is necessarily bound by a rule of reason and practicality. An agency need not analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, impractical, or ineffective." Airport Neighbors Alliance, Inc. v. United States, 90 F, 3d 426, 432 (10t" Circuit 1996). Regarding development of a project's purpose and need, the 2008 Section 404 f NEPA Interagency Merger Process Guidance prepared in coordination between FHWA, NCDOT, and the state and federal resource agencies includes references to: • Transportation plans; • Legislative mandates; and • intermodal relationships between the proposed highway project and airports, rail, and port facilities, etc. Responsibility for Defining the Purpose and Need Statement The Council on Environmental Quality has stated that "non-transportation agencies should give 'substantial deference' to transportation agencies' definition of a project's purpose and need." Section 6002 of the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) designates the responsible parties for defining the purpose and need for projects. "A state or local agency that is serving as a joint lead agency shares the federal lead agency's authority to define the purpose and need. Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 10 of 10 ) The court system has also heard and rendered an opinion that "the statement of a project's purpose and need is left to the agency's expertise and discretion, and we defer to the agency if the statement is reasonable." Alliance for Legal Action v. Federal Aviation Administration, 2003 U.S. App. LEXIS 13835, (4'b Circuit 2003). Conclusion NCDOT agrees with NCDWQ that the SHC Initiative is a plan for certain transportation corridors within the state. NCDOT also agrees with NCDWQ that addressing traffic congestion, capacity deficiencies, and regional mobility are reasons for the project, and further notes that these reasons are the tenets of the SHC Initiative and precisely why the SHC Initiative is a solution to those problems and the primary purpose of this project. NCDOT agrees with NCDCM that NCDCM must circulate major development permit applications to the state review agencies having expertise in each of their respective disciplines. For this proposed action, NCDOT has expertise in the planning and design of transportation facilities and should receive substantial deference in the development of the purpose and need statement. Laws, legal precedent, and regulatory guidance recommend that local and state transportation plans can and should be used as the basis for purpose and need statements for those facilities included in the plan(s). NCDOT recommends adherence to the goals of the SHC Initiative for the Kinston Bypass Project. In this location, a facility that meets the goals of the SHC Initiative is the primary or core purpose and not a secondary purpose or secondary benefit. A facility type that does not meet the goals of the SHC Initiative would be impractical and ineffective. Therefore, NCDOT can support the original P&N statement presented during the June 22, 2010 Meeting, the statement that was revised during the June 22, 2010 Meeting, and the July 26, 2010 version. NCDOT does not support the September 8, 2010 version that relegates the SHC Initiative to a secondary purpose. Purpose & Need Elevation: The Strategic Highway Corridors Initiative .in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 1 of 10 ) Introduction NCDOT prepared this paper to be used for reference during the October 13, 2010 Merger Management Team Meeting regarding elevation of the purpose and need for the Kinston Bypass Project. The following topics are presented herein. • Section 404 / NEPA Interagency Merger Process Concurrence Meetings • Elevation Briefs from Non-Concurring Merger Process Team Members NCDOT's Position Section 404 / NEPA Interagency Merger Process Concurrence Meetings The Merger Process Team conducted a Purpose & Need Concurrence Meeting for the Kinston Bypass on June 22, 2010, but was unable to reach concurrence. NCDOT's proposed Purpose & Need (P&N) Statement identified the inability of existing US 70 to meet the goals of the Strategic Highway Corridors (SHC) Initiative as a deficiency or need. Several team members disagreed that this constituted a "need" for the State of North Carolina. The Merger Process Team reconvened on September 14, 2010 to continue discussions on the wording of the P&N Statement. The team reviewed the following versions during the meeting, which are attached for reference: • the original statement prepared by NCDOT and presented during the June 22, 2010 Meeting; • a revised statement that was crafted during the June 22, 2010 Meeting in lieu of the original statement, which removed the SHC Plan from the purpose and need statements and added a reference to "a full-control access facility" to the purpose statement; • a statement prepared by the U.S. Army Corps of Engineers on July 20, 2010, which described the facility deficiencies in the need statement, and included a three-part purpose statement that described "addressing the deficiencies, the GIS Pilot Study, and the SHC Plan;" • a statement prepared by NCDOT on July 26, 2010 based upon USACE's July 20, 2010 version, which described the facility deficiencies in the need statement, and a purpose statement that described solutions to'the deficiencies that would be resolved "in accordance with the goals of the SHC Plan;" and • a statement prepared by the resource agencies on September 8, 2010, which described the facility deficiencies in the need statement, and a two-part purpose statement that described solutions to the deficiencies as a primary purpose and that "planning and design will be conducted in consideration of the goals of the SHC Plan" as a secondary purpose. The Team was divided and unable to reach concurrence during the September 14, 2010 meeting. Some members stated that the SHC Initiative should not be included in the P&N Statement because it Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 2 of 10 ) would limit the alternatives to be studied and would be pre-decisional. Other members stated that the SHC Initiative should not be considered as a primary purpose, but could be included in the P&N Statement as a secondary purpose or secondary benefit. NCDWQ requested elevation of this issue and initiation of the dispute resolution process. The meeting was concluded with USACE requesting elevation briefs. Elevation Briefs from Non-Concurring Merger Process Team Members The U.S. Environmental Protection Agency (USEPA), the U.S. Army Corps of Engineers (USACE), . N.C. Division of Water Quality (NCDWQ), and the N.C. Division of Coastal Management (NCDCM) prepared and submitted elevation briefs to USACE and NCDOT during the period from September 14, 2010 to September 30, 2010. The following is a summary of their reasons for non-concurrence. Copies of the five briefs are attached for reference. USEPA's Position: USEPA supports USACE and NCDWQ and the P&N Statement dated September 8, 2010. USEPA will not concur on a statement that limits the range of reasonable and feasible alternatives based upon the SHC Vision Plan. EPA concurs that the SHC Vision Plan is possibly a secondary purpose or a desired outcome, but not the main justification for the proposed transportation project, and doing such would potentially violate 40CFR1 506.1 (a)(2) by limiting the choice of alternatives. In its updated brief dated September 30, 2010, USEPA stated that, "an expressway or even a boulevard may be able to meet some or all of the future transportation problems identified in NCDOT's Merger Purpose and Need concurrence package." NCDWQ's Position: NCDWQ objects to the inclusion of an SHC reference as a primary purpose or need in the P&N Statement. NCDWQ believes that the SHC is a plan for certain transportation corridors within the state and not an identifiable problem related to traffic issues. They further state that it is a goal and should not be included in the primary purpose and/or needs of the Statement because the SHC is not the fundamental reason for proposing the project. Reasons for the project should be addressing traffic congestion, capacity deficiencies, or regional mobility. NCDWQ states that SHC should not be considered a core purpose, but rather at a secondary level as a desirable outcome, and inclusion of SHC in the P&N Statement would limit the alternatives under consideration, thereby potentially violating 40CFR1506.1(a)(2). USACE's Position: USACE does.not concur with a P&N Statement that includes the SHC Initiative. USACE requests removal of the SHC Initiative as a primary need or purpose in the P&N Statement because the statement should clearly establish measurable evidence of a transportation problem or deficiency. The goals and visions of the SHC Initiative do not represent a metric, a documentable transportation problem or need that requires repair. USACE further states that using the goals of the SHC Plan as the primary purpose would limit the range of reasonable alternatives that could be reviewed, thereby potentially violating 40CFR230 Section 404(b)(1) Guidelines. NCDCM Position: NCDCM finds the SHC reference to be too specific and would limit the alternatives ultimately considered. Specifically, the July 26, 2010 version of the P&N Statement included the phrase, "...in accordance with the goals of the North Carolina Strategic Highway Corridors Plan." This suggests that the goals of the SHCP are to be met in choosing the LEDPA. The Kinston Bypass is described as a four-lane freeway on new location in the SHC Plan. The P&N Statement should not specify the facility type. This could prevent NCDOT from studying alternatives that avoid and minimize Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 (Page 3 of 10 ) impacts to the natural and human environment to the maximum extent practicable. The language used in the September 8, 2010 version, "...in consideration of the goals of the SHCP," would be more appropriate. NCDCM asserts that inclusion of the SHC Initiative in the P&N Statement would potentially violate the Coastal Area Management Act, 15A NCAC 07J.0207, 15A NCAC 07J.0209, and § 113A-120(a)(9). The goals of CAMA are to ensure development of the land and water resources of the coastal area proceeds in a manner consistent with the capability of the land and water for development based on ecological considerations and to ensure the orderly and balanced use and preservation of coastal resources on behalf of the people of North Carolina and the nation. 15A NCAC 07J.0207, AGENCY REVIEW / COMMENTS: MAJOR DEVELOPMENT / DREDGE AND FILL, and 15A NCAC 07J.0209 ISSUANCE OF PERMITS, require NCDCM to circulate major development permit applications to the state review agencies having expertise in each of their respective disciplines. DCM must take into consideration the viewpoints of other state agencies with each concurrence point in the Merger Process. NCDWQ did not concur with the proposed P&N language. NCDWQ requires applicants to consider all practicable alternatives to impacting waters of the state and wetlands during the design of their project. § 113A-120(a)(9), GRANTOR DENIAL OF PERMITS, states that NCDCM may deny an application for a permit upon finding that, considering engineering requirements and all economic costs, there is a practicable alternative that would accomplish the overall project purposes with less adverse impact on the public resources. NCDOT's Position The following discussion presents NCDOT's position and is a summary of the SHC Initiative, specific information regarding the US 70 Corridor as a Strategic Highway Corridor, laws, guidance, and legal precedent for use of the SHC Initiative in purpose and need statements, and the parties responsible for development of purpose and, need statements. Use of the SHC Initiative in defining Purpose & Need for other projects I NCDOT prepared the Purpose & Need Statement for the Kinston Bypass Project based upon other b? ajr? strategic highway corridor projects that the Merger Process Teams reviewed and approved. Fourteen previous or ongoing projects included the SHC Initiative in the project need and/or purpose section of the environmental document(s) that were circulated to all agencies represented on either the Merger X Process Team or the Steering Committee. Three projects have included a direct reference to the SHC Initiative or a reference to a state transportation plan in their Purpose & Need Concurrence Agreements ._A _of_Ihose prnjects?ncJuding the SHC Iniflative approved by each project 's Merg er Process Team list s attached for reference. Please note that some pipeline projects reached concurrence on purpose an need prior to initiation of the formal Merger Process concurrence agreements. However, concurrence was documented in meeting minutes, letters, and/or the approved environmental documents. Since the Merger Process Team accepted the SHC Initiative in the purpose and need statements of the referenced projects?NCDOT questions specific reasons why the Kinston Bypass Merger Process Team requests a change in precedent Why wasn't this issue raised earlier in the Project Development Process? C P ti NCDOT also questions why the Merger Process Team did not raise their objections to the purpose and need for this proposed action earlier in the project development process. NCDOT presented and j5 I ? Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 4 of 10 ) documented its position for a freeway on new location in accordance with the SHC Initiative in the Start of Study Letter, the Scoping Meeting Packet, and the Scoping Meeting PowerPoint Presentation. The subject line in the Start of Study Letter is, "Kinston Bypass, four-lane divided freeway on new location..." The Scoping Meeting Packet included five related references to the SHC Initiative or a freeway. The Project Description was described as, "The Kinston Bypass would be a 12-mile, four-lane, median- o? us,i+w/ divided freeway on new location." The General Project Need was described as, "Capacity deficiencies ?alo»a?/? on existing US 70 Bypass; Strategic Highway Corridor." We also included information on the description of the SHC Initiative as it relates to this project under SHC Information as, "US 70 from Raleigh to Morehead City is designated as a Strategic Highway Corridor (Corridor #46, classified as a he freeway)." The Proposed Roadway Typical Section was described as, "four-lane, median-divided." The Proposed Design Speed was listed as, "70 mph." cj ,"i ,,K cc?r{?n ?0 %s 76-pk ?vhf?r of o?G+i We received comments on the Scoping Meeting Packet prior to A October 28, 2009 Scoping Meeting The letter from the N.C. Wildlife Resources Commission acknowledged that NCDOT "proposes to construct a four-lane divided freeway on new location." The subject line of the letter from the N.C. ?r4Pf aDivision of Water Quality says, "Scoping Comments on the proposed US 70 Kinston Bypass Freeway `474_ aP Q? on New Location..." Comment #6 in the letter from the U.S. Environmental Protection Agency /may ?c? i rod acknowledges that "access control and potential location / design of interchanges" will need to be / scrip discussed. This infers that a freeway facility was to be designed for this proposed action. dR car `a ?. 7 p ,,,?? %' pr°? NCDOT also presented the SHC Initiative and freeway concept during the October 28, 2009 Scoping /I C, V-J- v.r Meeting. Slide #7 presented the Project Description as, "Programmed as a four-lane, median-divided freeway on new location." Slide #18 presented the General Project Need as, "Capacity deficiencies yoj exist along US 70 and US 70 Bypass, and US 70 from Raleigh to Morehead City is designated as a 1 Strategic Highway Corridor." Slide #32 presented the Design Criteria for the Proposed Facility as, h6 r?J "Functional Classification: Freeway; Type of Access Control: Full Control; Typical Section: 4-lane G.¢ pA +",divided; Right of Way: 250 feet (minimum); Design Speed: 70 mph." Slide #37 presented Special Q Ud? Considerations as, "NCDOT Strategic Highway Corridor and N.C. Intrastate System." w - y-In addition, no comments were relayed from the Merger Process Team members upon receipt of the ,Kr' I p&*) CP1 Concurrence Meeting Packet indicating potential non-concurrence prior to the June 22, 2010 5y,,5 Meeting. w^ Practicable. Prudent, and Reasonable Alternatives The non-concurring Merger Process Team Members assert that inclusion of the SHC Initiative in the purpose and need statement would limit the number of alternatives under consideration. NCDOT is not fo y? limiting the number of practical or prudent alternatives to be studied or the routes to be studied by rl+ if referencing the SHC Initiative as a primary purpose for the project. Our experience and studies to date demonstrate that a boulevard or an expressway would be impractical and ineffective as exhibited by the ?.O2? existing US 70 facility. Some members of the Merger Process Team have stated that "an expressway or a boulevard might meet some or all of the future transportation problems." In 40CFR230, Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material, "the term 'practicable' means available and Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 5 of 10 ) capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." In 40CFR1502.14, Alternatives Including the Proposed Action, "agencies shall evaluate all reasonable alternatives." These regulations refer to practicable or reasonable alternatives. Guidance indicates they are referring to alternatives that are practical and feasible from a technical and economic standpoint, and using common sense. To meet the purpose and need, an alternative must provide more than a minor improvement. An improvement would be considered minor if it is localized, temporary, and/or largely unnoticeable to the typical user of the transportation system. Alternatives that provide only a minor improvement do not meet the purpose and need, and, therefore, are not reasonable alternatives. A boulevard or an expressway would provide localized and temporary improvements to the capacity problem, but would not address the mobility aspect of the purpose and need for this project. Therefore, boulevards or expressways would not meet the purpose and need and are not reasonable alternatives for this portion of the US 70 Corridor. 4i? ?9- Pos.1 aa1 *,ea7 z.,6L ??- 4w r Nd P S„FC:-yNCN Port of Morehead City and the Importance of the US 70 Corridor Ms. Stephanie Ayers, Director of Planning & Development for the N.C. State Ports Authority, provided data on freight hauling and the importance of the entire US 70 Corridor to the Port of Morehead City. "International deep-water ports are transfer points in the flow of cargo. To meet the requirements of increasing volumes and decreasing delivery times, cargo must have free-flowing access to these transfer points, to and from inland markets as well as to and from the ocean. The Ports Authority has identified the US 70 Corridor as its most critical transportation priority for the Port of Morehead City. In just one month, May 2010, the Port of Morehead city moved more than 780 commercial trucks through its gates onto US 70, translating into nearly 16,000 truck tons of cargo on the highway." poi h+? U.S. Department of Defense and the Importance of the US 70 Corridor The US 70 Corridor is also designated as part of the Strategic Highway Corridor Network (STRAHNET). As defined in 23CFR470.107(b)(3), the STRAHNET includes highways which are important to the defense policy and which provide defense access, continuity, and emergency capabilities for the movement of personnel, materials, and equipment in both peace time and war time. The Port of Morehead City has been identified by the U.S. Department of Defense as, "one of the nation's fifteen commercial Strategic Seaports, capable of simultaneously handing commercial and military requirements. Each Strategic Seaport is unique in its capabilities and provides the Department of. Defense with operational flexibility / redundancy and port facilities and services that are critical in meeting a wide-range of national security missions and timelines. Completion of the US 70 Strategic Highway Corridor will provide access from Camp Lejeune to the Port of Morehead City. The US 70 Corridor will also help Seymour-Johnson Air Force Base be more effective as a joint facility providing access to the Port of Morehead City." /'r%11 {on s Hot A -A-ed-r <::,.f ,f JL y ,. c a• d / Mom ?, Local State Federal, and Public Involvement in the Development of the SHC Initiative The Strategic Highway Corridors Initiative is a plan that was developed through regional transportation studies by rural planning organizations and NCDOT for more than eight years, and was vetted with municipal, state, and federal officials, and the public. From November 2003 to January 2004, the N.C. Department of Transportation, the N.C. Department of Commerce, and N.C. Department of Environment and Natural Resources co-sponsored a series of public meetings (regional forums) throughout North Carolina to share the Strategic Highway Corridors Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 6 of 10 ) Initiative with stakeholders and gather their reactions in order to share input with management and the N.C. Board of Transportation. The major objectives for the public forums were as follows: • Educate stakeholders about the overall Strategic Highway Corridors Initiative ' • Gather stakeholders' reactions, input, ideas, and critical issues about the Strategic Highway Corridors Initiative • Educate stakeholders about next steps and time frames in the planning process Nine public forums were held throughout North Carolina in both urban and rural areas and in the three geographic areas in the State: Bryson City, Wilkesboro, Asheville, Huntersville, Southern Pines, Greensboro, Jacksonville, Wilson, and Williamston. This outreach approach was structured to ensure that both.broad statewide and unique regional perspectives would be heard. Each forum lasted approximately two and a half hours and a variety of techniques were used to publicize these forums, including e-mail, brochures, and announcements via newsletters and list-serves. Since the Strategic Highway Corridors Initiative represents a new planning direction, NCDOT initially chose to engage those stakeholders who have a vested interest in the planning aspects. Targeted stakeholders included local, regional, state, and federal agencies; economic development and environmental organizations; freight industry representatives; political leadership organizations; and other advocacy groups. Approximately 250 people attended the forums, with an average of 25-28 attending each session. Comments received at the forums covered a broad perspective. Most everyone agreed that the initiative was an organized, efficient, and effective way to plan for the major corridors in the state. Participants felt that the approach promotes a greater sense of connectivity within regions and across the state, while improving safety along these roads, and aiding in economic development. They also felt coordination and communication with local jurisdictions was essential to see success of the effort, specifically in regards to land use planning. Local officials wanted to make sure that the character of their communities and local access are maintained, while having the services of a nearby high-speed facility. Summary of the Strategic Highway Corridors Initiative The Strategic Highway Corridors concept stems from the practice of long-range systems planning. Since the 1960s, systems planning studies have been conducted in local and regional areas throughout North Carolina. These studies have been valuable, and have helped communities understand growth and better plan for transportation improvements. However, study recommendations typically stop at planning area borders, which are usually just beyond city limits or county boundaries. In addition, decisions made in the project development and planning process typically focused on the limits of the project itself. NCDOT has lacked a broader, statewide vision for how to ensure continuity and consistency for travel flow between these planning areas, communities, and in the development of projects. The Strategic Highway Corridors Initiative represents the first step towards promoting a more consistent transportation service for North Carolina's citizens. The development of this concept began in 2002 and has continued to evolve over time into an important statewide initiative. From the beginning, the concept was shaped by sound technical criteria, planning and operational considerations, significance of historical studies, and the establishment of relevant goals and future applications. Work centered on the need for NCDOT and its stakeholders to Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 (Page 7 of 10 ) consider planning from a broader perspective, with a specific focus on maximizing the mobility of "core"? highway facilities within North Carolina's transportation system. AiJak` r dT The purpose of the Strategic Highway Corridors Initiative is to address mobilit and connectivity Dap N°r"d problems for a distinct network of highways that comprise 7% of the total state-maintained system, but yy °?? s r carry 45% of the total traffic volume. The SHC Initiative represents the first major implementation step py2°u °f to be advanced under the update of North Carolina's Long-Range Multimodal Statewide Transportation tie- SHc- Plan. The Statewide Transportation Plan, adopted by the N.C. Board of Transportation in September, 2004, is the product of an intensive, three-year planning process to greatly enhance a focus on providing and supporting a truly modern, well-maintained, multimodal transportation system. In keeping with the Plan's emphasis to increase modernization and preservation activities across all of North Carolina's travel modes, the SHC Initiative generates a new focus for NCDOT to improve, protect, and better plan for a series of critical highway facilities in the State. This concept provides a tangible, first step for maximizing the use of highway infrastructure and limited financial resources. The formal recognition of the SHC Initiative confirms NCDOT's commitment to emphasize greater planning and investment in the State's highest-use facilities, those facilities that play a critical role in statewide mobility and regional connectivity. The Strategic Highway Corridors Initiative was adopted in 2004 by the N.C. Department of Environment and Natural Resources, the N.C. Department of Commerce, the N.C. Department of Transportation, the N.C. Board of Transportation, and Governor Michael Easley. The attached Policy Statement for the SHC initiative "recognizes the need to improve and maximize the use of a distinct set of existing highways, which are critical to statewide mobility and connectivity." The US 70 Strategic Highway Corridor US 70 between Raleigh and Morehead City is designated as Strategic Highway Corridor # 46, which connects Raleigh, Smithfield, Goldsboro, Kinston, New Bern, Havelock, and Morehead City. The corridor is described as follows: US 70 between 1-40 near Raleigh/Garner (Wake County) to the State Port at Morehead City (Carteret County), approximately 148 miles in length. US 70 is ultimately envisioned as a Freeway, according to the SHC Initiative. The North Carolina Division of Emergency Management has identified the entire corridor from Morehead City to Raleigh as a major hurricane evacuation route. The entire corridor is a designated route on the North Carolina Intrastate System and on the National Highway System as a STRAHNET Route. This corridor is also the primary route for motorists traveling between the Raleigh area and beaches and the Morehead City Port. In Section 4.3 of the SHC Concept Development Report ("How will this Concept Influence Decisions in the Project Planning and Design Process?"), there are two parts to the implementation. The first part of this process is to examine all projects programmed in the state's TIP that are located along Strategic Highway Corridors. The second part of this process is more applicable to the current status of TIP Project R-2553. This part states: developing new TIP projects in a manner which ion ' ers the long-term vision and goals of the Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 (Page 8 of 10 ) SHC concept, from the beginning of the project development process. Engineers should develop project scopes and make design decisions that are consistent with the corridor vision, including the preparation of Purpose and Need Statements and the development and evaluation of alternatives. Purpose and Need Statements should demonstrate how the project meets the criteria set forth in the SHC concept and describes the need for improvements to the corridor as they relate to the corridor's function and vision. Alternatives should be developed and analyzed in a manner which reflect the mobility and connectivity goals of the vision, while attempting to maximize the use of v??bJ, Z existing infrastructure." 4JA uu A.h, )? , Gnn-efiv,?j )„ Q!i? sfi"bt The Kinston Bypass portion of the US 70 Strategic Highway Corridor Net P? ?y u( P?J?r Existing US 70 in the project area is a Strategic Highway Corridor with partial or no control of access. ,• 5&'f t The capacity of the facility is limited due to congestion at intersections and driveway connections, which I prf "0 are generating delays to through-traffic volumes and increasing the potential for conflict points and 0,,, S6;_ crashes. In 2008, average annual daily traffic volumes on US 70 ranged from 12,000 to 40,000 n1ftq{ y 114`"7 vehicles per day. With the No-Build Alternative, the average annual daily traffic volumes are estimated ,?. 'to range from 24,800 to 55,600 vehicles per day in 2020, and are estimated to range from 35,000 to 79,200 vehicles per day in 2035. It should also be noted that through-movements represent a majority of the traffic on US 70. US 70 warrants the highest level of access control, a freeway with full control of access. A freeway will decrease congestion, improve travel times for through-traffic, minimize conflict points and crashes, and minimize the indirect and cumulative effects of the project. B„ / i -c- w 4y S7U L/ Laws. Regulatory Guidance, and Legal Precedent for SHCs in Purpose and Need Statements le / /w w Section 6002 of Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) provides direction in the development of purpose and need statements. "The purpose 3 X. and need statement shall include a clear statement of the objectives that the proposed action is intended to achieve, which may include achieving a transportation objective identified in an applicable statewide or metropolitan transportation plan, or serving national defense, national security, or other national objectives, as established in federal laws, plans, or policies." This provision is helpful in establishing that goals in transportation plans can and should provide a basis for defining the purpose and need for individual projects. The Federal Highway Administration and the Federal Transit Administration issued joint guidance on linking the transportation planning process and the National Environmental Policy Act. They concluded that "the transportation planning process may be part of the project's purpose and need statement." Specifically, they agreed that "a general travel corridor or general mode (e.g., highway, transit, or highway/transit combination)) resulting from planning analyses may be part of the project's purpose and need statement." '&V-I- des A S¢-"KJi+y 2^1 T70 ?j Gm+s,o(.....P The Federal Highway Administration issued guidance on potential purpose and need objectives including any statewide plan or adopted urban transportation plan, federal, state, or local governmental mandate for the action, and highway projects that interface with and serve to complement airports, rail and port facilities, mass transit services, etc., all of which are tenets of the Strategic Highway Corridors Initiative. The American Association of State Highway and Transportation Officials recommends that "the purpose and need statement should not be developed on a blank slate. Rather, the purpose and need Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 9 of 10 ) should be informed by policy direction provided in any applicable legislation and transportation plans. An overall vision for the transportation system - on a statewide, metropolitan, or local basis - can provide a starting point for defining the purpose and need of specific transportation projects. This broad vision can be developed by state and local governments through the transportation planning process and in other ways, such as legislation. Some states have identified 'strategic highway networks' connecting major population and employment centers or tourist destinations. The best-known example of this is the Interstate Highway System itself. If a transportation plan establishes a goal of completing a network, the purpose of an individual project can be defined in terms of implementing a portion of that network." The court system has heard and rendered the following decisions involving reasonable alternatives and corridor designations in the purpose and need statement. "Courts have specifically recognized that federal agencies can and should consider legislative direction when determining a project's purpose. Examples include a regional system of highways, a specific highway corridor, or design criteria that must be met by highways within a given system, corridor, or functional class." AASHTO Practitioner's Handbook, "Defining the Purpose and Need and Determining the Range of Alternatives for Transportation Projects (August 2007). " "We remain mindful that an agency decision concerning which alternatives to consider is be?a necessarily bound by a rule of reason and practicality. An agency need not analyze the ?ar f 46d- environmental consequences of alternatives it has in good faith rejected as too remote, speculative, impractical, or ineffective." Airport Neighbors Alliance, Inc. v. United States, n. ?/ 90 F.3d 426, 432 (10" Circuit 1996). S7v,1?-e.P Regarding development of a project's purpose and need, the 2008 Section 404 / NEPA Interagency Merger Process Guidance prepared in coordination between FHWA, NCDOT, and the state and federal resource agencies includes references to: Transportation plans; • Legislative mandates; and • intermodal relationships between the proposed highway project and airports, rail, and port facilities, etc. Responsibility for Defining the Purpose and Need Statement The Council on Environmental Quality has stated that "non-transportation agencies should give 'substantial deference' to transportation agencies' definition of a project's purpose and need." Section 6002 of the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) designates the responsible parties for defining the purpose and need for projects. "A state or local agency that is serving as a joint lead agency shares the federal lead agency's authority to define the purpose and need. ?? Ctv? s Purpose & Need Elevation: The Strategic Highway Corridors Initiative in the Purpose & Need Statement for R-2553: US 70 - Kinston Bypass - Lenoir County October 11, 2010 ( Page 10 of 10 ) The court system has also heard and rendered an opinion that "the statement of a project's purpose and need is left to the agency's expertise and discretion, and we defer to the agency if the statement is reasonable." Alliance for Legal Action v. Federal Aviation Administration, 2003 U.S. App. LEXIS 13835, (4'h Circuit 2003). Conclusion ri NCDOT agrees with NCDWQ that the SHC Initiative is a plan for certain transportation corridors within 5 6f the state. NCDOT also agrees with NCDWQ that addressing traffic congestion, capacity deficiencies, and and regional mobility are reasons for the project, and further notes that these reasons are the tenets of the SHC Initiative and precisely why the SHC Initiative is a solution to those problems and the primary eCf? purpose of this project. 'L NCDOT agrees with NCDCM that NCDCM must circulate major development permit applications to the s / state review agencies having expertise in each of their respective disciplines. For this proposed action, NCDOT has expertise in the planning and design of transportation facilities and should receive o , substantial deference in the development of the purpose and need statement. i Laws, legal precedent, and regulatory guidance recommend that local and state transportation plans can and should be used as the basis for purpose and need statements for those facilities included in the plan(s). NCDOT recommends adherence to the goals of the SHC Initiative for the Kinston Bypass Project. ?(. we- tM s 1 S-? 7ec p m ? /OV ?®o i? In this location, a facility that meets the goals of the SHC Initiative is the primary or core purpose and not a secondary purpose or secondary benefit. A facility type that does not meet the goals of the SHC Initiative would be impractical and ineffective. Therefore, NCDOT can support the original P&N statement presented during the June 22, 2010 Meeting, the statement that was revised during the June 22, 2010 Meeting, and the July 26, 2010 version. NCDOT does not support the September 8, 2010 version that relegates the SHC Initiative to a secondary purpose.