20161268_USEPA Comments_20130514

NEPA/Section 404 Merger Process
Abstention Brief
May 15, 2013
To: Jay McInnis, P.E., NCDOT Project Manager
THRU: Heinz J. Mueller, Chief, NEPA Program Office
Cc: Merge oject Team r
From: Christopher A. Militscher, REM, CHMM, USEPA Merger Representative
1. Project Name and brief description: US 17 Hampstead Bypass, R -3300 (and Military Cut-
off Road Extension, U- 4751), New Hanover and Pender Counties. Abstention from CP
4A, Avoidance and Minimization
2. Last Concurrence Points (signed): CP 4A for U -4751 on 8/8/12 and CP 3 for R -3300 on
5/17/12.
Explain what is being proposed and your position including what you object to. It is the
EPA Merger Team representative's position that the NCDOT substantially revised the
LEDPA following the CP 3 meeting (including the addition of a second interchange
near the northern terminus and a 6 -lane section) and since the issuance of the 9/11
DEIS. EPA does not believe that a substantial increase in impacts to jurisdictional
wetlands and streams is justified without a full environmental analysis of all of the
feasible alternatives previously considered during the CP 3 meeting for R -3300. As
stated in NCDOT's e-mail of 4/29/13 and in the handout provided, the new LEDPA
Alternative for R -3300 results in 4.35 acres and 750 linear feet of additional impacts to
jurisdictional wetlands and streams, respectively. EPA notes that NCDOT reduced the
increase in jurisdictional impacts by designing one interchange to be a smaller
interchange than is typically desired.
4. Explain the reasons for your potential non - concurrence. Please include any data or
information that would substantiate and support your position. The DEIS did not identify a
second interchange for the northern terminus area. EPA also notes that the USACE
has requested a commitment that NCDOT re- examine the very original northern
interchange referred to as EH -ORIG based upon future ESA consultation for RCW
foraging habitat.
A second interchange was not included in the original E -H corridor presented in the
DEIS and it is anticipated that NCDOT will require additional right -of -way for this
interchange not depicted in the DEIS. NCDOT and USACE now seek concurrence on
avoidance and minimization for R -3300 without updating the DEIS or formally going

back to an appropriate concurrence point (Please see Merger MOU page 2, Concept of
Concurrence).
NCDOT has provided an analysis that now combines U -4751 with R -3300 for the
purposes of documenting avoidance and minimization measures. The Merger team's
acceptance of the `savings' of 2.9 acres of wetlands and 677 linear feet of streams under
CP 4A is now added to the additional impacts from the changed design resulting in a
`smaller loss'. Currently, the U -4751 and R -3300 LEDPAs combined result in a net
increase of 1.45 acres of wetlands and 73 linear feet of streams. EPA does not dispute
potential traffic conflicts with an interchange near Topsail High School. However, EPA
believes that the `need' for a 6 -lane facility should have been addressed in the DEIS.
The analysis provided did not address the wetland and stream impacts for Alternative
U, only the residential and business relocations, impacted noise receptors, and cultural
resource effects. Alternative U was not selected as the LEDPA and it should have been
comprehensively compared to the revised E -H Alternative. Alternative U also
potentially avoided impacts to RCW.
EPA does recognize that the new LEDPA for R -3300 avoids and minimizes impacts to 3
fewer residences, 4 fewer businesses and 1 less church than the original LEDPA that the
Merger team concurred on for R -3300.
In total with U -4751, this proposed project results in 248.2 acres of wetland impacts,
and 22,379 linear feet (4.2 miles) of stream impacts.
5. List any relevant laws or regulations that you believe would be violated or jeopardized if the
proposed action were implemented and explain the basis for violation. Please attach a copy
of the relevant portion of the law or regulation or provide an email address where the
documents may be located.CWA Section 404(b)(1) guidelines. See comments above and
additional LEDPA information below. EPA has previously provided technical
comments on the DEIS. http: / /water.epa.gov /lawsre$!s /guidance /wetlands /mitigate.cfm
"Avoidance. Section 230.10(a) allows permit issuance for only the least environmentally
damaging practicable alternative. The thrust of this section on alternatives is avoidance of
impacts Section 230.10(a) requires that no discharge shall be permitted if there is a
practicable alternative to the proposed discharge which would have less adverse impact to
the aquatic ecosystem, so long as the alternative does not have other significant adverse
environmental consequences. "
6. What alternative course of action do you recommend? The transportation project sponsors
NCDOT and USACE should formally re- evaluate the CP 3 LEDPA decision of revised
Alternative E -H for R -3300. This abstention brief should be considered by NCDOT,
USACE, and NCDWQ as a formal request to revisit a concurrence point under the
Merger MOU. The NCDOT and USACE might also consider supplementing the DEIS
to address the new LEDPA. Deferring these substantial design changes and substantial
environmental impacts for disclosure in the FEIS is not recommended by the EPA
Merger Team representative. Another alternative evaluated in the DEIS may now be
the LEDPA.

FYI: Additional Information on LEDPA DETERMINATION
40 C.F.R. section 230.10(a), the basis for the LEDPA determination, states that, except as
provided in CWA section 404(b)(2), a permit will not be issued "if there is a practicable
alternative to the proposed discharge which would have less adverse impact on the aquatic
ecosystem An aquatic ecosystem is an ecosystem located in a body of water. Communities of
organisms that are dependent on each other and on their environment live in aquatic ecosystems.
The two main types of aquatic ecosystems are marine ecosystems and freshwater ecosystems, so
long as the alternative does not have other significant adverse environmental consequences. The
LEDPA requirement is an attempt to avoid environmental impacts instead of mitigating for them.
The Corps may only approve a project that is the LEDPA. The LEDPA involves two separate
determinations; it must be both practicable and the least environmentally damaging. The LEDPA
requirement's purpose is "avoiding significant impacts to the aquatic resources and not
necessarily providing either the optimal project location or the highest and best property use."

TIP Project No. R -3300
Concurrence Point 4A
The project team has concurred on the Avoidance and Minimization for the proposed project as
listed above.
Name Aaencv Date
USACE
S-T-pr ,vl� USEPA
USFWS
NMF
NCDCM
NCSHPO
NCDMF
NCDWQ
NCWRC
NCDOT
WMPO
Cape Fear RPO
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Section 404 /NEPA Interagency Agreement
Concurrence Point No. 4a
Avoidance and Minimization
Project Title and Project Numbers:
Proposed US 17 Hampstead Bypass, New Hanover and Pender Counties, TIP No. R -3300, State Project
No. 40191.1.2, Corps Action ID 2007 1386
LEDPA /Recommended Alternative:
US 17 Hampstead Bypass Alternative E -H
Avoidance and Minimization:
US 17 Hampstead Bypass Alternative E -H minimizes impacts to resources. However, it is not feasible
for the proposed project to completely avoid impacts to the Waters of the US and still meet the purpose
and need of the project. The following avoidance and minimization efforts have been incorporated into
the proposed project:
Section 404 Avoidance and Minimization Measures
■ 3:1 slopes are proposed in wetland areas and adjacent to streams.
■ US 17 Hampstead Bypass was realigned between Station 443 +00 and Station 529 +00 as it
approaches and crosses Harrison Creek Road. Wedand impacts were reduced by 4.77 acres.
Impacts to streams were reduced by 5.93 linear feet.
■ US 17 Hampstead Bypass was realigned in the vicinity of the NC 210 interchange between Station
553 +00 and Station 601 +00. Wedand impacts were reduced by 0.78 acre and stream impacts
were reduced by 258 linear feet.
■ US 17 Hampstead Bypass was realigned in the vicinity of Holiday Drive between Station 650 +00
and Station 714 +00. Wetland impacts were reduced by 7.99 acres. However, the shift results in
additional impacts to streams of 332 linear feet.
Additional Avoidance and Minimization
Red - cockaded Woodpecker
Prior to Concurrence Point 3, the proposed northern US 17 Hampstead Bypass interchange was moved
from its location north of the Topsail School Complex to south of the schools to minimize impacts to
red - cockaded woodpecker (RCW) foraging habitat. At the corridor public hearing, the public was
opposed to the interchange location south of the schools because it limited thru -traffic on existing US 17
north of the schools. In response, a new local interchange is proposed north of the Topsail Schools
Complex (Option 6TR). This additional interchange uses a reduced design to avoid affecting RCW
foraging habitat. If RCW foraging habitat ceases to exist at the northern interchange at the time
NCDOT applies for authorization from the Corps of Engineers to construct the project, the Department
will revisit the original interchange design, known as Alternative E -H ORIG. As currently described,
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TIP Project No. R -3300
Concurrence Point 4A
Alternative E -H ORIG would further minimize wetland impacts compared to Alternative 6TR, which is
NCDOT's preferred.
Water Quality and Erosion Control
• Old Topsail Creek and Nixons Creek are designated as Commercial Shellfishing, High Quality
Waters (SA; HQW) by the North Carolina Division of Water Quality. Tributaries of these streams
(NSA, NSF, NDITCHI and ZTRIBI) are designated SA; HQW due to the classification of their
receiving waters. Design Standards in Sensitive Watersheds will be implemented for NSA, NSF,
NDITCHI and ZTRIBI during project construction.
Community Impacts and Relocations
In response to public input and concerns over lack of access, an interchange has been added north of
the Topsail Schools Complex to maintain access along existing US 17 (Option 6TR). This
interchange will provide the access requested by the public. It uses reduced design criteria to
minimize impacts to RCW habitat and the Topsail Schools Complex, and avoid a Pender County
water tower. If RCW foraging habitat ceases to exist at the northern interchange at the time
NCDOT applies for authorization from the Corps of Engineers to construct the project, the
Department will revisit the original interchange design, known as Alternative E -H ORIG. As
currently described, Alternative E -H ORIG would further minimize wetland impacts compared to
Alternative 6TR, which is NCDOT's preferred.
Control of access was reduced along the west side of existing US 17 near the project's northern
terminus to minimize impacts to a business and a church. It is expected that design modifications
will result in three fewer residential relocations, four fewer business relocations and one less non-
profit relocation overall.
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