20110023_Information Letter_20110810

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STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
BEVERLY EAVES PERDUE
GOVE2`JOR
August 3, 2011
Mr. Bill Biddlecome
US ArnTy•Corps of Engineers
Washington Regulatory Field Office
Post Office Box 1000
Washington, NC 27889-1000
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AUG 1 0 2011
DENR-WATER
~~~~11ERBRgryeH
EUGENE A. CONTI, JR.
SECRETARY
Subject: Replacement of the Herbert C. Bonner Bridge (Bridge No. 11) over Oregon
Inlet, Dare County, TIP No. B-2500
Reference: Correspondence from the USAGE dated March 25, 2011
Dear Mr. Biddlecome:
This letter is in response to your correspondence dated March 25, 2011, which included
comments on the subject project following a meeting of the Merger Team on March 16. In
your letter, you stated concerns regarding whether NCDOT and FHWA had satisfied the
requirements of the National Environmental Policy Act (NEPA) and other applicable
statutes during the NEPA planning phase of the project. You also requested an update on
several permitting and mitigation issues pertaining to the project. The following lists the
statutes and issues you referenced and summarizes the current status of each.
Fish and Wildlife Coordination Act
This statute requires consultation with the US Fish and Wildlife Service (and the National
Marine Fisheries Service, if appropriate) and the corresponding state fish and wildlife
agency on Federal projects that involve the control or modification of any stream or other
body of water. In addition, fish and wildlife resources must receive equal consideration to
other project features when developing a project. As you know, the USFWS, NMFS, state
Wildlife Resources Commission (NCWRC) and Division of Marine Fisheries (NCDMF)
participated on the project's NEPA/Section 404 Merger Team and were invited to
continent on every NEPA document developed for the project. Responses to each agency's
comments on each NEPA document were thoroughly reviewed and addressed; responses
to all agency comments can be found in Chapter 8 of the Final Environmental Impact
Statement (FEIS), Appendix D and F of the Environmental Assessment (EA), and
Appendix C of the Record of Decision (ROD). Each NEPA document also included
analyses of the project's potential impacts to the study area's natural resources, including
fisheries and wildlife. Impacts to natural resources were considered in determining the
ROD's Selected Alternative. Therefore, the requirements of the statute have been met.
MAILING ADDRESS:
NC DEPARTMENT OF TRANSPORTATION
PROJECT DEVELOPMENT AND ENVIRONMENTAL ANALYSIS
1548 MAIL SERVICE CENTER
RALEIGH NC 27699-1548
TELEPHONE: [phone]
FAX: [phone]
WEESITE: NhNN.NCDOT.ORG/OOH/PRECONSTRUCT/PE/
LOCATION:
CENTURY CENTER, EUILDING A
1000 BIRCH RIDGE DRIVE .
RALEIGH NC 27610

August3,'2011
Page 2'
National Historic Preservation Act.
In accordance with Section 106 of the National Historic Preservation Act, NCDOT and
FHWA identified properties either curreutly listed on, or eligible for, the National Register
of Historic Places; determined the effects of the various project alternatives on each
historic property in consultation with the State Historic Preservation Office; and, finally,
consulted with representatives of each property to determine appropriate ways to mitigate
for the impacts of the Selected Alternative. The survey and analysis of historic properties
is discussed in Sections 3.4.1 and 4.4.1 of the FEIS, and a summary of the coordination
with the consulting parties is included in the EA and ROD. It should be noted that,
beginning with the first coordination meeting in .Tuly 2008, the USAGE was invited to
participate in meetings with the consulting parties; you personally attended several of
these meetings. The final step in the Section 106 process for this project was the
development of.the Progammatic Agreement that is included in Appendix D of the ROD.
With the signing of the Programmatic Agreement, FHWA and NCDOT have fulfilled the
requirements of Section 106. In accordance with the Programmatic Agreement, future
phases of the project will be assessed to determine whether there are any additional
impacts to historic resources and whether further mitigation is required.
Endangered Species Act
Following the selection of the Parallel Bridge Comdor with Phased Approach/Rodanthe
Bridge Alternative as the project's LEDPA in August 2007, NCDOT developed a
Biological Assessment for the alternative that included biological conclusions for eight
threatened and endangered species as well as the (at the time, proposed) critical habitat for
the wintering piping plover located on Bodie and Hatteras Islands. The Biological
Assessment included conclusions for those species and habitat under the USFWS' and
NMFS' jurisdictions, as appropriate. As summarized in the FEIS, the NMFS concluded
that further formal consultation under Section 7 was not necessary, but requested that
NCDOT adhere to the NMFS' March 23, 2006 Sea Turtle and Smalltooth Sawfish
Construction Conditions. These guidelines were incorporated into the Project
Commitments "greensheet." The USFWS and FHWA determined that formal consultation
was necessary, and the USFWS issued a Biological Opinion for those species under its
jurisdiction in July 2008. The terms and conditions from the Biological Opinion were also
incorporated into the Project Commitments.
When the decision was made to change the project's LEDPA/Preferred Alternative to the
Parallel Bridge Comdor with NC 12 Transportation Management Plan, FHWA and
NCDOT again contacted the USFWS and NMFS to determine whether further
consultation under Section 7 was necessary. A summary of the coordination is included in
Section 3.6 of the EA. Both agencies agreed that further consultation wasn't required at
this time. The design-build contractor will be required to prepare an update of impacts to
threatened and endangered species/habitat based on the project's final design. Once that .
information is available, FHWA and NCDOT will coordinate with the USFWS and
NMFS to determine whether further Section 7 consultation is necessary.
Coastal Zone Management Act
As a Federal activity located within the state's coastal zone, FHWA and NCDOT analyzed
the project for its impacts to the project area's coastal resources, Areas of Environmental
Concern, and coastal wetlands in order to comply with the State Coastal Area

August 3, 2011
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Management Act (CAMA), the State Dredge and Fill Law, and the Dare County Land Use
Plan as approved by the Coastal Resources Commission. A summary of the extensive
coastal studies for the project, which included analyses of the impacts of shoreline erosion,
the presence of the terminal groin, future NC 12 maintenance activities, the presence of
bridge piers in the coastal surf zone, and sea level rise, is included in Sections 3.6 and 4.6
of the FEIS. As you know, the state Division of Coastal Management (NCDCM) is a
member of the project's Merger Team and was invited to comment on every NEPA
document developed for the project. Responses to all bf NCDCM's.comments are
included in Chapter 8 of the FEIS, Appendix D of the EA, and Appendix C of the ROD. In
addition, NCDOT has worked with NCDCM to address its potential concerns with the
Phase I design, including the possible use of retaining walls and the bridge's location in
reference to the predicted 2060 shoreline. Based on the agency's comments on the NEPA
documents and additional coordination since the ROD was published, future phases of the
project may require review by the Coastal Resources Commission prior to permit
approval, but otherwise the project, as proposed, now meets the requirements under
CAMA.
Terminal Groin Permit (USFWS)
The USFWS-Pea Island National Wildlife Refuge (PINWR) has determined that a new
pern~it will be required for the retention of the terminal groin at Oregon In]et. NCDOT and
FHWAhave-worked with the USFWS since 2008 to determine the process for issuing a
new permit and the potential monitoring that will likely be required as a condition of the
permit. NCDOT submitted a permit application, consistent with USFWS permit
application requirements, in July 2010. The USFWS has since developed draft permit
conditions and is currently revising them based on NCDOT concerns. The USFWS
expects to issue the new pemtit this summer. It should be noted that NCDOT is not
proposing any physical alterations to the existing terminal groin. The permit is for the
existing structure to remain in place.
Phase IEasement- PINWR (USFWS)
NCDOT and FHWAhave worked with the USFWS to determine the most appropriate
mechanism for allowing the use of PINWR land for construction of Phase I. Based on the
preliminary design of Phase I of the Selected Alternative, the USFWS has determined that
a minor modification of the existing easement via permit would be possible, assuming that
the appropriate mitigation for use of the new easement could be developed. NCDOT and
USFWS are currently discussing appropriate mitigation for the use of USFWS property,
potential options for which include the return of the current NC 12 easement that will not
be needed for the new bridge, acquisition of other state-owned property in the project area,
and other options. (It should be noted that the winning design-build team's proposal
reduces the amount of new easement needed within the PINWR from what was stated in
the ROD; during the final design process, NCDOT will work with the team to reduce
these impacts even further.) USFWS expects to issue this permit in early 2012, once the
impacts of the final design are known and the mitigation plan has been finalized.
Phase IEasement- Cape Hatteras National Seashore (NPS)
NCDOT and FHWAhave been working with the National Park Service (NPS) since 2008
to determine the appropriate mechanism that would allow the use of land within the Cape
Hatteras National Seashore. The NPS has determined that a Highway Easement Deed will

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be used to authorize construction of the project within the Seashore and has begun
working with FHWA to complete this document. NCDOT is also working with the NPS to
resolve any conditions that maybe required as part of the associated permit, including the
possible relocation of an adjacent septic field, relocation of a beach access ramp near the
current bridge, and other issues. NCDOT expects that the Highway Easement Deed and
the associated permit will be issued after the final design of the bridge is available and
prior to actual construction.
Wetland and SAV Mitigation
During the Merger Team meeting held in September 2009, it was decided that NCDOT
would work with the NPS on the wetland mitigation plan for Phase I, since that agency
had the most restrictive requirements on what could be considered appropriate mitigation.
The other members of the Merger Team would have the opportunity to review and
comment on the mitigation proposal developed by NCDOT and the NPS. The current
mitigation plan includes the treatment of 35 acres ofphragmites-dominated wetland within
the Bodie Island Lighthouse Pond area in order to re-establish the area to its former
function. As you know, the Merger Team members were sent a copy of the draft
mitigation plan in May 2011, and NCDOT staff met with you at the proposed site to
discuss the proposal. NCDOT and the NPS will revise the current mitigation plan based
on agency comments and on further coordination with a consultant who has performed
similar phragmites treatment at other sites. The plan will then be circulated again for
agency review.
Last year, NCDOT initiated coordination with the NMFS to determine the appropriate
mitigation for SAV impacts for Phase I of the project. On June 30-July 1, 2010, NCDOT
met with NMFS and NCDMF staff at the project site both to determine the type and extent
of SAV currently found at Oregon Inlet and to discuss potential mitigation. Options
discussed include the creation of oyster reef to provide habitat replacement and credit for
the removal of the existing bridge over current SAV habitat, among others. Following that
meeting, the NMFS (Mark Fonseca, Don Field) provided NCDOT with a report containing
its observations about the current state of the SAV habitat in the project area and thoughts
on potential mitigation options. Your office was copied on their July 28, 2010 e-mail that
included this report. While the exact mitigation for SAV impacts has not been finalized,
NCDOT is continuing to work with the NMFS and the NCDMF to determine suitable
options. Once a mitigation plan for SAV impacts is ready for agency review, it will be
circulated to your office and to other members of the Merger Team as appropriate.
The Mai-ch 16 Merger Team meeting included discussion about what areas qualified as
SAV habitat for the purposes of meeting the Project Commitment that prohibits fill or
dredging within SAV. NCDOT woiked with the NMFS following the March meeting to
determine an acceptable definition of SAV habitat. As a result of this work, NCDOT
developed a map of the SAV areas located behind Bodie Island based on aerial
photography taken in September 2009, as opposed to the NMFS mapping that NCDOT
utilized to calculate SAV impacts during the NEPA process. The map shows the areas of
SAV that are considered "homogenous," "sparse," and "patchy," in addition to those areas
that are void of SAV. NCDOT staff visited the site earlier this summer to verify the
delineated areas in the photograph, and the NMFS has since concurred with the two areas
noted on the map as void of SAV. The updated SAV mapping was provided to the three

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August 3, 2011
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short-listed design-build teams for their use iu preparing project bids and will be further
utilized by the winning team as it prepares the project's final design. A copy of this map
will also be sent to your office.
If you have any further questions about the status of the wetland and SAV mitigation
being developed for Phase I of the project, please contact LeiLani Paugh at (919) 707-
6146 or Steve Mitchell at [phone].
Stormwater Approval
The design-build contractor will be responsible for the development of stormwater
controls and a Stormwater Management Plan that follows current Best Management
Practices as part of the Phase I final design. The Stormwater Management Plan will be
discussed during the Concurrence Point 4B and 4C Merger Teain meetings, which will be
held prior to final permit application submittal. The contractor will be responsible for
preparing all appropriate permit applications for the project, including an NCDWQ State
Stomrwater Permit. The schedule for the Concurrence Point 4B and 4C Merger Team
meetings and for permit application submittal will be determined by the contractor and
will be made available to the Merger Team once it is known.
Magnuson-Stevens Fishery Conservation and Management Act
In your letter, you expressed concern that the requirements for analyzing and mitigating
the effects of the project on EFH under the Magnuson-Stevens Fishery Conservation and
Management Act (Act) have not been met. FHWA and NCDOT have met the
requirements of this act by coordinating with the NMFS concurreritly with the project's
NEPA process. A summary discussion of the EFH Assessment analysis and findings is
included in the FEIS (Sections 3.7.6.3 and 4.7.6.2) and in the EA (Section 2.3.3.5). The
following is a summary of the EFH assessment work and coordination.
In October 2007, FHWA and NCDOT met with representatives of the NMFS, the
NCDMF, and NCDCM to discuss the potential impacts to fisheries and how those impacts
should be analyzed in future NEPA documents. The conversation was focused on the then-
Preferred Altemative, the Parallel Bridge Corridor with Phased Approach/Rodanthe
Bridge Alternative. You also attended this meeting. The meeting included discussion of
the proposed outline and analysis methodology of the EFH Assessment that would be
prepared for the Preferred Alternative. As discussed at the meeting and noted in an
October 9, 2007 email from Ron Sechler, the primary concerns with the then-Preferred
Alternative were the presence of bridge piers within the surf zone and associated EFH
habitat that would occur in later phases of the alternative. Following this meeting,
NCDOT (in its role as the non-federal representative for FHWA on Federal-aid
construction projects for the purposes of the Act) began development of an EFH
Assessment for the then-Preferred Altemative.
The EFH Assessment for the Phased Approach/Rodanthe Bridge Altemative was
completed in August 2008. The Assessment concluded that while the projecfwould have
both positive and negative impacts, the overall effect of the project on EFH was not
anticipated to be adverse. The Assessment also noted that while "permanent loss or
alteration of estuarine emergent habitat, seagrass, oyster reef and shell bank, and intertidal
flats would result directly from shading and pile placement of the replacement structure

August 3, 2011
Page 6
[Phase I]......a corresponding benefit would be the removal of the existing structure...."
Because the Assessment did not find an adverse effect on EFH, FHWA and NCDOT did
not request that the NMFS propose conservation recommendations.
A summary of the EFH Assessment's findings was included in Sections 3.7.6.3 and
4.7.6.2 of the September 2008 FEIS. In addition, FHWA and NCDOT responded to the
NMFS' comments on the SDEIS and SSDEIS, which were provided in a letter to NCDOT
dated April 17, 2007; responses to these comments begin on page 8-49 of the FEIS. An
electronic copy of the full EFH Assessment was sent to the NMFS on October 27, 2008.
The NMFS submitted comments on the FEIS, and the EFH assessment summary within it,
in a letter dated October 27, 2008. In the letter, the agency reiterated its concerns with the
presence of bridge piers within the surf zone. It was noted that these impacts are largely
unknown due to the rarity of the situation and are likely not able to be mitigated. NMFS
stated that it still preferred the Pamlico Sound Bridge Comdor because, though there still
would be impacts to SAV and EFH, those impacts could be mitigated. The letter noted
that if the Phased Approach/Rodanthe Bridge Alternative was pursued further, then
NCDOT should initiate along-term study of the habitat changes on Bodie and Hatteras
Islands. However, there was no objection to the "no adverse effect" finding.
Based on other comments received on the FE]S, FHWA and NCDOT developed and
eventually decided to pursue (with concurrence through the Merger Process) the Parallel
Bridge Corridor with NC 12 Transportation Management Plan as the new Preferred
Alternative for the project. In May 2010, an Environmental Assessment was issued that
included an analysis of whether there were any new, significant impacts of the Preferred
Alternative on EFH (Section 2.3.3.5). The EA concluded that because Phase I of the
Phased Approach/Rodanthe Bridge Alternative was similar to that of Phase 1 of the NC 12
Transportation Management Plan (in fact, the alternatives had the same alignment within
S.AV areas behind Bodie Island), the impacts of Phase I would not be different from those
listed in the FEIS; therefore the alternative is not anticipated to adversely affect EFH_ The
EA also states that future phases of the project would be reassessed for their impacts to
EFH prior to implementation. The EA was provided to the NMFS for review and
continent, but the NMFS never provided comments. FHWA and NCDOT considered the
coordination requirement under the Act completed at the end of the EA comment period.
Your letter recommended that FHWA and NCDOT update the 2008 EFH Assessment to
focus on the impacts to EFH for Phase I of the project; as stated above, because the
Phase I designs for the two alternatives are so similar, the impacts in the 2008 EFH
Assessment do not change acrd no further assessment for Phase I is necessary. You also
recommended that a separate EFH Assessment be completed for each future phase. As
was stated in the EA and again in the above paragraph, impacts to EFH of a future phase
would be reassessed at the time the decision on a future phase is made.
National Environmental Policv Act
Lastly, you stated in your letter that "...it appears FHWA has, for the most part, satisfied
the requirements of the National Em~ironmental Policy Act (NEPA) and the requirements
set by the Council on Environmental Quality (CEQ) (40 CFR 1505.2)." FHWA and
NCDOT have satisfied completely the requirements of NEPA and of CEQ and, therefore,

August 3, 201 I
Page 7
the contract for construction of Phase I of the project has been executed. FHWA and
NCDOT have responded to all of the public, NGO, and agency comments (including those
from your agency) received on the project and believe that the Parallel Bridge Corridor
with NC 12 Transportation Management Plan represents the best alternative for this
complex and controversial project.
As a cooperating agency on the project and a Merger Team member, we know that you
understand the importance of sharing and resolving concerns early as we work together
through the Merger Process. We trust that this response, our previous work together and
our continued coordination with you will fully address the concerns listed in your March
25, 2011 letter. If you have any questions or comments about the information discussed
here or about the project, please feel free to contact me or Beth Smyre, PE at (919) 707-
6043 or at bsmyre(a~ncdot.QOV.
Sincerely,
Grego J. horpe, Ph.D., Manager
Project Development and Environmental
Analysis Branch
Cc: Ms. Renee Gledhill-Earley, SHPO
Mr. Doug Huggett, NCDCM
Mr. Ron Sechler, NMFS
Mr. Pete Benjamin, USFWS
Mr. Chris Militscher, USEPA
Mr. Travis Wilson, NCWRC
Mr. Brian Wrenn, NCDWQ
Ms. Jennifer Derby, USEPA
Mr. Clarence Coleman, FHWA
Mr. Mike Murray, NPS
Mr. Mike Bryant, USFWS-PINWR
Mr. Victor Barbour, NCDOT-Technical Services
Ms. Debbie Barbour, NCDOT-Preconstruction
Mr. Rob Hanson, NCDOT-PDEA
Ms. Beth Smyre, NCDOT-PDEA
Ms. LeiLani Paugh, NCDOT-NEU
Mr. Steve Mitchell, NCDOT-NEU