20020672 Ver 3_SELC Comments on 401_20141202

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SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Facsimile 919 -929 -9421
CHAPEL HILL, NC 27516 -2356
November 24, 2014
VIA E -MAIL AND U.S. MAIL
Amy Chapman
North Carolina Division of Water Resources
Transportation Permitting Unit
1617 Mail Service Center
Raleigh, NC 27699 -1617
[e-mail]
Re: Monroe Bypass — § 401 Water Quality Certification
Dear Ms. Chapman:
On behalf of Clean Air Carolina, the Yadkin Riverkeeper, and North Carolina Wildlife
Federation, the Southern Environmental Law Center ( "SELC ") submits the following comments
on the application of the North Carolina Department of Transportation ( "NCDOT ") for a § 401
Water Quality Certification for the Monroe Bypass. These comments incorporate by reference
our earlier comments concerning the These comments incorporate by reference our earlier
comments concerning the NEPA review for this project that were submitted to NCDOT on
November 30, 2012;1 January 6, 2014;2 April 8, 2014;3 April 10, 2014;4 and June 9, 2014.5 For
the reasons outlined below the North Carolina Division of Water Resources ( "NCDWR ") cannot
legally issue a § 401 Certification for the Monroe Bypass at this time.
'Letter from Frank Holleman and Kym Hunter, SELC, to Jennifer Harris, NCDOT, Monroe Connector /Bypass:
Supplemental Environmental Analysis (Nov. 30, 2012) [hereinafter "SELC Nov. 30, 2012 Comments "].
2 Letter from Kym Hunter and Kate Asquith, SELC, to Jennifer Harris, NCDOT, Monroe Connector /Bypass: Draft
Supplemental Environmental Impact Statement (Jan. 6, 2014) [hereinafter "SELC Jan. 6, 20I4 Comments "].
3 Letter from Kym Hunter and Kate Asquith, SELC, to Jennifer Harris, NCDOT, Request for a Supplement to the
Draft Supplemental Final Environmental Impact Statement for the Monroe Connector /Bypass (Apr. 8, 2014)
[hereinafter "SELC Apr. 8, 2014 Comments "].
4 E -mail from Kate Asquith, SELC, to Jennifer Harris, NCDOT, RE: Monroe Connector /Bypass - Draft
Supplemental Final EIS (Apr. 10, 2014) [hereinafter "SELC Apr. 10, 2014 Addendum Comments "].
5 Letter from Kym Hunter and Kate Asquith, SELC, to Jennifer Harris, NCDOT, and John Sullivan, FHWA,
Monroe Connector /Bypass: Request for a Supplemental Environmental Impact Statement (June 9, 2014)
[hereinafter "SELC June 9, 2014 Comments "].
Charlottesville • Chapel Hill • Atlanta - Asheville • Birmingham • Charleston • Nashville * Richmond • Washington, DC

NCDWR cannot issue a certification because NCDOT has failed to show that there is no
practical alternative to the proposed project that would result in less adverse impact. As
explained below, the alternatives analysis is flawed in several specific ways. First, NCDOT has
failed to demonstrate a need for the project, instead improperly relying on significantly flawed
and outdated traffic and socio - economic data to justify its selected alternative. Second, NCDOT
used these flawed traffic forecasts to eliminate many practical project alternatives improperly.
Third, the alternatives analysis fails to include reasonable alternatives such as a suite of
improvements including upgrades to the existing U.S. 74 Corridor, though recent traffic data has
made it increasingly clear that such alternatives are reasonable and should be considered.
Additionally, NCDOT has failed to show that the indirect and cumulative effects ( "ICE ")
from the project will not degrade downstream water quality. While we recognize NCDOT has
updated the explanation of the methodology underlying the ICE analysis since its first NEPA
analysis, the analysis itself remains little changed. And, now that the facts are laid bare it is
more evident than ever that NCDOT has failed to present an accurate picture of the ICE expected
to result from construction of the road. The ICE analysis is based on the assumption that the
road will result in negligible overall growth and development in the area defined in the NEPA
analyses of the Bypass project (hereinafter "Study Area, ") — an assumption that is
fundamentally inconsistent with the many other analyses, including those which underpin the
rationale to construct the road. Even more, NCDOT has also failed to account for the ICE that
will result from the shift in growth to more rural areas of Union County.
Furthermore, despite having pursued the issue for many years, NCDOT has failed to
provide adequate details about the mitigation that will be used to offset the project's impacts on
wetlands and streams. The failure to provide details about impacts and mitigation leaves open
important questions about both the availability and adequacy of the proposed mitigation, and
improperly segments the permitting process. Such details must be provided before NCDWR can
make a determination as to whether the proposed compensatory mitigation is adequate to offset
the impacts of the project.
1. A $ 401 Water Quality Certification Cannot Be Issued because NCDOT Has Not
Shown that There Is No Practical Alternative to the Proposed Toll Road
NCDWR may not issue a certification until the agency determines that there is no
practical alternative to the project. 15A N.C. Admin. Code 2H.0506(b)(1); (c)(1); (d)(1).
A lack of practical alternatives may be shown by demonstrating that,
considering the potential for a reduction in size, configuration or density
of the proposed activity and all alternative designs the basic project
purpose cannot be practically accomplished in a manner which would
avoid or result in less adverse impact to surface waters or wetlands.
Id. 2H.0506(f). NCDOT has failed to demonstrate that there is no practical alternative to
the proposed project.
2

A. NCDOT Has Not Demonstrated a Purpose or Need for the Project
First, NCDOT has failed to demonstrate an enduring purpose or need for the project. The
demonstration of a project's purpose and need is of critical importance because it serves as the
touchstone for the analysis of practical alternatives. Here, the project's Statement of Purpose and
Need guiding NCDOT's alternatives analysis was initially contrived in 2007 with a Final
Statement published in 2008. NCDOT has long justified construction of the Bypass by
explaining that the U.S. 74 Corridor must operate as a high speed corridor, which requires traffic
move at 50 miles per hour.6 Since NCDOT initially developed this Statement of Purpose and
Need and selected the Bypass as the preferred alternative, considerable changes in project Study
Area have established that circumstances do not justify construction of the Monroe Bypass, As
explained below, changes in growth expectations, current levels of traffic and congestion, future
traffic and the success of alternatives all add up to a significantly changed state of affairs in
Union County. In light of these changes, NCDOT has failed to demonstrate that the $800
million new - location Bypass is even necessary.
1. Outdated Traffic Forecasts
NCDOT's justification for constructing the Bypass is based on a series of traffic
forecasts, plainly shown through the most recent NEPA process to be significantly outdated.
During NCDOT's NEPA review of the project, we asked transportation expert Dr. David T.
Hartgen, Ph.D., to review NCDOT's traffic forecasts for the Monroe Bypass.7 Dr. Hartgen has
45 years of experience in transportation planning and analysis and is a Professor Emeritus at the
University of North Carolina at Charlotte and a retired engineer.$ He is familiar with the Bypass
project and the U.S. 74 Corridor and in fact is cited often by NCDOT in the agency's NEPA
review.10 After his review of the Draft Supplemental Final Environmental Impact Statement
( "DSFEIS "), Dr. Hartgen concluded that "traffic forecasts presented in NCDOT's NEPA review
are too uncertain and insufficiently supported to be the basis for decision - making regarding the
Monroe ConnectorlBypass "E1 explaining that the documents "simply ignoref] the last 12 years
6 NCDOT has based this need by expressly relying on the Corridor's designation as a Strategic Highway Corridor
( "SHC ") and as part of the North Carolina Intrastate System. In the most recent NEPA analysis NCDOT again
initially relied on these designations in the recent NEPA analysis. Draft Supplemental Final Environmental Impact
Statement [hereinafter `DSFEIS "] at 1 -2, available at http: / /www.ncdot.goy/projects /monroeconnector /. Yet this
ignores the fact that the North Carolina General Assembly had repealed the Intrastate System legislation. North
Carolina Session Law 2013 -183 at Section 4.9 (repealing N.C. Gen. Stat. 136 -179). Following our comments
highlighting this mistake, NCDOT acknowledged its error in its FSFEIS errata, and continues to base the need for
the Bypass on the SHC designation's call for a high -speed corridor.
7 David T. Hartgen, Review of Traffic Forecasting: Monroe Connector/Bypass Draft Supplemental Final EIS,
November 2013 (Dec. 26, 2013) [hereinafter "Hartgen Report 2013 "],
Attachment 1 to SELC Jan, 6, 2014 Comments; Dr. David T. Hartgen, Reply to Response to Comments, "Revietiv of
Traffic Forecasting: Monroe ConnectorlBypass, DFFEIS, December 26, 2013 (June 9, 2014) [hereinafter "Hartgen
Report 2014 "], Attachment 2 to SELC June 9, 2014 Comments.
s Hartgen Report 2013, at 35 -38, Attachment 1 to SELC Jan, 6, 2014 Comments. Please note Dr. Hartgen was a
licensed engineer by the state of Maine before retiring,
9 Id. at 3.
o See, e.g., ICE Appendix L.
' Hartgen Report 2013, at 4, Attachment 1 to SELC Jan, 6, 2014 Comments.

of history regarding traffic trends on U.S 74. ,12 He reiterated this point after reviewing the
Final Supplemental Final EIS and Record of Decision, 13 stating that he was compelled to stand
by his original overall assessment. 14
Dr. Hartgen found that, rather than conduct updated traffic forecasts that reflect current
growth trends, socioeconomic projections, or a more realistic vision of the expected future
transportation network, NCDOT has attempted to preserve its faulty analysis by merely brushing
off the many significant flaws highlighted in his original review. Nor has NCDOT any attempt
to fix these significant flaws in the application now before NCDWR. In fact, since NCDOT first
developed these traffic forecasts, current observed speeds show traffic is now moving much
more quickly through the Corridor, with many areas approaching the 50 miles per hour high
speed corridor requirement. As such, actual conditions in the Corridor have proven quite
contrary to NCDOT's predictions underlying the NEPA analysis and this permit application.
Outdated traffic data
NCDOT based its initial Statement of Purpose and Need on travel time data from 2007.
At that time the agency showed peak travel time along the U.S. 74 Corridor as 50 minutes, with
an average peak speed of 24 miles per hour, and expected that by 2030 the travel time would
increase to 70 minutes, with an average speed of 17 miles per hour.15
These projections are now shown to be dramatically overstated. For example, NCDOT's
own observed traffic counts demonstrate the rate of growth in traffic volume originally forecast
for the U.S. 74 Corridor is wildly out of sync with reality. Dr. Hartgen noted that NCDOT's
observed traffic data since 2000 shows that along the portion of U.S. 74 at the Mecklenburg -
Union line, just west of the project end, the traffic has grown on average just 0.15% /year (a total
of 1.8% in 12 years), and has actually declined since 2005.16 He also noted that near the city of
Monroe, growth has been modest at approximately 0.4 % /year.17 Dr. Hartgen also demonstrated
in his reports that observed traffic volumes at the eastern edge of the project have declined since
2000.18
Yet the traffic forecasts NCDOT used to analyze alternatives in the NEPA analysis
require traffic volumes to skyrocket. As demonstrated in HNTB's Traffic Forecast Summary,
the percent volume increase from NCDOT's 2012 AADT that must be realized to reach the 2035
No -Build Projection ranges from 22% to 81%, with an average of 53% increase in volume. 19 Dr.
Hartgen explains that the implied percent changes from current volumes, which range from 1.3
12 Id. at 18.
13 NCDOT, Final Supplemental Final Environmental Impact Statement and Record of Decision (May 2014)
[hereinafter "FSFEIS" and "ROD "] available at
http://www nedot.gov/pro'ects/monroeconnector/pro'ectresources.html.
14 Hartgen Report 2014, Attachment 2 to SELC June 9, 2014 Comments.
i5 DEIS (2009) at 1 -18 (table 1 -5).
id Id. at 17.
" Id.
18 Id. at 17 -18; Hartgen Report 2014, at 2, Attachment 2 to SELC June 9, 2014 Comments.
"DSFEIS at G -9 and G -22, table 5.
4

to 5.4% per year, are 5 -10 times faster than the recent twelve years of observed traffic volumes. 20
Though the DSFEIS recognizes that traffic counts from 2007 to 2012 show "zero change,i21 the
transportation agencies have offered no explanation of how to reconcile their projections of
radical increases in traffic volume with the reality of flat -lined growth rates over the last twelve
years. Dr. Hartgen also notes that these trends pre -date the 2008 recession, and have continued
in the recession's wake, providing strong evidence these trends do not represent a short term
shift, but rather "a huge change in prior trends. "22
Further, Union County is no longer experiencing anywhere near the level of growth as in
2008, indicating that expectations of massive increases in traffic are no longer justifiable. As Dr.
Hartgen notes, Union County's growth rate has fallen sharply since NCDOT's initial NEPA
analysis, falling from 4.9% /year from 2000 -2010 to just 1.7 %/year, based on the most recent
census data. 23 Even when Union County's population was growing, traffic volumes remained
stable. As Dr. Hartgen details in his 2013 report, in spite of the previous high growth in Union
County "traffic on U.S 74 has not increased substantially since 2000. "24 NCDOT has never
explained why, in the face of such evidence, increased population would necessarily result in
more drivers using the U.S. 74 Corridor. With population growth now slowing, the huge
increase in drivers seems even less likely.
Dr. Hartgen has also outlined other significant flaws in the traffic forecasts. Importantly,
the traffic forecasts do not factor in the majority of traffic improvements already instituted along
the U.S. 74 Corridor, nor do they anticipate future planned improvements. 25 As detailed below,
NCDOT has instituted a wide range of small -scale improvements along U.S. 74, such that traffic
conditions on U.S. 74 are now vastly different from the environment in which the transportation
agencies' consultants first developed the future No -Build traffic forecasts. Dr. Hartgen explains
that it is "likely that the improvements made so far also helped to improve the current operating
speeds in the 44 -mph range, �iven that traffic volumes have not increased and INRIX speeds
show an increase over time." 6 As such, Dr. Hartgen argues that "at the very least, the planned
improvements should be coded into the regional network and used as the basis for all
forecasts . "27 Moreover, future planned improvements, such as the superstreet installations
described below, may be "equally effective" at improving traffic condition such that they also
should be considered in the traffic forecasts.28
We applaud NCDOT's efforts to improve traffic conditions in the U.S. 74 Corridor, and
recognize that traffic experts such as Dr. Hartgen anticipate future planned improvements will
surely continue to dramatically improve traffic conditions .29 When these improvements are
20 Hartgen Report 2013, at 18, Attachment 1 to SELC Jan. 6, 2014 Comments.
21 DSFEIS at 4 -20.
22 Hartgen Report 2013, at 18, Attachment I to SELC Jan. 6, 2014 Comments.
231d. at 14 (citing www.cenus.gov).
24 Id. at 17 (emphasis in original).
25 Id. at 13.
26 Id. (citing DSFEIS at 1 -6).
27 Id.
28 Hartgen Report 2013, at 13, Attachment I to SELC Jan. 6, 2014 Comments.
29 Id.

paired with the steady to declining traffic volumes observed over the past twelve years, the result
is a significant, sustained divergence from the 2008 traffic forecasts underpinning NCDOT's
justification for constructing the road.
b. Outdated socio- economic data
Additionally, NCDOT itself admits its traffic forecasts underlying the permit application
are not based on the most recent available socio- economic data. 30 The traffic forecasts
underlying the NCDOT analysis of practical alternatives are based on 2005 socio - economic data,
though NCDOT has verified that it could have, at the very least, updated its model with 2009
socio- economic data, 31 and has acknowledged that the Charlotte Regional Transportation
Planning Organization ( "CRTPO ") was in the process of finalizing even more recent socio-
economic projections as NCDOT conducted its NEPA review. 32 Yet the transportation agencies
considered the 2009 socio - economic data in the NEPA analysis only to verify a continued
demand on the U.S. 74 Corridor. 33
Similarly, while NCDOT summarily reviewed the 2014 CRTPO socio - economic
projections in response to comments by the Conservation Groups the arbitrarily concluded that
new traffic forecasting was not warranted despite this changed data.3 NCDOT did nothing to
quantify or otherwise detail any differences that the use of such data might make on the forecasts
themselves. Critically, the new CRTPO projections show considerably lower growth rates than
previously forecast, and indicate that the growth that is expected to occur in Union County will
be located close to Mecklenburg, rather than in the eastern part of the County. 35 These
projections fit recently observed county growth patterns; for example, as Dr. Hartgen notes, the
recent (2010 -12) population growth rate for Union County has been much slower at just
1.7% /year, calling into serious question NCDOT's continued reliance on outdated socio-
economic data. 36
Indeed, as Dr. Hartgen has detailed in his reports, the population forecasts NCDOT used
to forecast traffic are "probably significantly overstated. ,37 Dr. Hartgen has detailed several
" DSFEIS at G- 12 -G -13; FSFEIS at Section 2.2, Appendix E2; FHWA, Comment and Response Grid for SELC
Letter dated Jayne 9, 2014, at 10 (Oct. 30, 2014), Attachment 1.
3 1 Id.
32 See FSFEIS at Appendix E2.
33 DSFEIS at G- 12- -G -13; FSFEIS at Section 2.2, Appendix E2; FHWA, Comment and Response Gridfor SELC
Letter dated June 9, 2014, at 10 (Oct. 30, 2014), Attachment 1.
34 See FSFEIS at 2 -19, Appendix E -4, E -8; see also FHWA, Comment and Response Grid for SELC Letter dated
June 9, 2014, at 1 -2 (Oct. 30, 2014), Attachment 1.
"See discussion in SELC Comments, Nov. 2012, at 15 -16, citing e -mail from Stephen Appold to Bjorn Hansen,
Scot R. Sibert, Anna Gallup, Ruchi Agarwal, Amy Helms, C. Chorak, Robert Cook, Dana Stoogenke, D. Hooper, D.
Ritsema, K. Wolf, Evan Lowry, M. Sandy, Wendy Bell, Bernie Yacobucci, Nadine Bennett, Joe McLelland, R.
Black (Oct. 17, 2012), Attachment 24 to SELC Jan. 6, 2014 Comments; see also Dr. Steve Appold, Projections
Compared Excel Sheet, at "counties" sheet (Sept. 20, 2012), Attachment 25 to SELC Jan. 6, 2014 Comments
( Appold projects 70,176 jobs in Union County in 2035, whereas Hammer projects 141,704; Appold projects 66,730
jobs in Union County in 2030, whereas Hammer projects 128,494); see also Hartgen Report 2014 at 120,
Attachment 2 to SELC June 9, 2014 Comments.
36 Hartgen Report 2013, at 14, Attachment 1 to SELC Jan, 6, 2014 Comments.
37 Id. at 20.
6

critical and flawed assumptions underlying the projections relied upon by NCDOT. 38 For
example, Dr. Hartgen explains that the assumption underlying the "top- down" forecasts that the
United States will maintain past growth rates is now untenable, given the recent recession. 39 Dr.
Hartgen also criticizes the assumption that the Charlotte region will continue to excel relative to
other regions, 40 explaining that the Charlotte region in particular "was very hard -hit in the
recession, with large banks and other employers shedding jobs inordinately, and unemployment
remains significantly above the U.S. and NC levels," having the effect of "slow[ing] the local
employment growth to a crawl," none of which was considered in NCDOT's projections.41
Additionally, Dr. Hartgen questioned the assumption that Union County will attract a
relatively large share of regional growth,42 explaining that the majority of Union County's recent
growth "was driven not by local county economic activity but by proximity to Charlotte,
particularly in the Ballantyne area," which has now slowed significantly. 4
3 Dr. Hartgen also
questions NCDOT's reliance on these projections for the purposes of traffic forecasts for the
Study Area, as the projections do not separate the location of that growth within Union County
and thus "overlook the fact that the most of the Union County growth has been outside of the
Bypass study area. "44
NCDOT claims that because the area is expected to still experience some socio- economic
growth in the future, there is no need to reevaluate its conclusions drawn from studies based on
outdated projections of prodigious growth.45 Yet to fully evaluate practical alternatives, it is
necessary to clearly define the full scale of growth to be expected, otherwise NCDWR cannot
properly evaluate whether other, less destructive alternatives could meet the articulated need.
2. Decreased Congestion in the U.S. 74 Corridor
Another fundamental flaw in NCDOT's traffic forecasts underlying the permit
application is that while traffic volumes in Union County have remained fairly stable since
NCDOT's original analysis, improvements in the Corridor have caused travel speeds to improve
dramatically. NCDOT's recent 2013 data shows that current travel time along U.S. 74 is now 30
minutes at peak, with an average 4peak speed of about 44 miles per hour— 20 miles per hour
faster than was observed in 2007, 6 and just six miles per hour under the arbitrary 50- mile -per-
hour "high -speed corridor" standard. As NCDOT recognizes in the NEPA analysis, with just
these minimal improvements, peak travel time speeds are now closely approaching the speed
limit throughout much of the U.S. 74 Corridor. Further, the NEPA analysis demonstrates that
" Id. at 21 -23.
39 Id. at 22.
40 DSFEIS, ICE Appendix H, at 6.
41 Hartgen Report 2013, at 22, Attachment 1 to SELC Jan. 6, 2014 Comments.
42 Id.
43 Id.
as Id. (emphasis added).
45 See FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014, at 2 -3 (Oct. 30, 2014), Attachment
1.
46 Memorandum from Bradley Reynolds, HNTB, to Jennifer Harris, NCDOT, RE: U.S. 74 Corridor Travel Time
Comparison (Oct. 2013), at 2, available at http: / /www.nedot.pov/ projects /monroeconnector /download /U.S.
74CorridorTravelTimeMemoFinal t02413tpdf.

congestion is not prevalent throughout the Study Area, but rather is limited to a few key hot-
spots. 47 In other parts of the Corridor, the sought -after speed of 50 miles per hour is already
accomplished, and in several more sections it is close. 49
As such, it is likely that NCDOT's predictions of 70 minute travel times and speeds of 17
miles per hour by 2035 are also greatly overstated. As mentioned, traffic volumes in the
Corridor have seen very little increase in the past ten years, and there is no evidence presented in
the NEPA analysis or permit application as to why they continue to expect the dramatic levels
previously forecast. Yet NCDOT continues to state the project is necessary because some
portions of U.S. 74 currently experience congestion during peak periods, and because the
Corridor does not currently operate as a high -speed corridor, any growth in traffic volume would
exacerbate the need for the road .49 But this ignores the fact that understanding the scale of future
growth is essential to determining how best to address the documented need. The need for some
project to address Corridor congestion not necessary equate with the need for construction of the
Bypass in particular. NCDOT must therefore analyze and document the degree of future
congestion before NCDWR can properly determine whether there is no practical alternative to
the project.
a. Success of alternatives along U.S. 74
Before NCDWR can make its determination regarding practical alternatives, NCDOT
must develop traffic projections which take into account the recent improvements to the U.S. 74
Corridor as well as foreseeable improvements that have been scheduled and funded in the near
future. NCDOT's failure to do so in the most recent NEPA analysis served to overstate the
congestion problem in the Corridor.
In fact, recent improvements along existing U.S. 74 have served well to address much of
the current area congestion. Following the recommendations of the Stantec Study, NCDOT has
implemented to great effect a wide variety of targeted, relatively low cost traffic improvements
throughout the U.S. 74 Corridor in the project Study Area. Even just these minimal
improvements have proven to be quite successful. For example, NCDOT has optimized signal
timing along at least 23 intersections along the length of U.S. 74 through the Study Area. 50
Traffic signal optimization involves the implementation of ideal timing settings to govern the
operation of a traffic signal. This process can minimize stops and delays, fuel consumption, and
air pollution emissions, and can maximize progression along an arterial like U.S. 74. Signal
optimization has been found to be an incredibly cost- effective congestion management effort,
especially in comparison to expensive alternatives like new construction. In fact, FHWA has
noted that the benefit ratio can be as high as 40 to 1.51 And because traffic signals can be easily
" DSFEIS at 1- 9 -1 -12.
as Id.
A9 FSFEIS at Section 1.1.1; see also FHWA, Comment and Response Grid far SELC Letter dated June 9, 2014, at 3,
6 (Oct. 30, 2014), Attachment 1.
so Richard W. Baucom, US 74 Highway Improvements in Union County, NC: 2007 - March 2013, table (Mar. 25,
2013), Attachment 17 to SELC Jan. 6, 2014 Comments,
51 S. Lawrence Paulson, Managing Traffic Flow Through Signal Timing, FHWA's PUBLIC ROADS, Vol. 65 No. 4
(Jan./Feb. 2002), availahle at http://www fhwa.dot.gov/t)ublicatioiis/publicroads/02janfeb/timing,cfm.

optimized without any changes to the roadway's existing footprint, the effort successfully
maintains access to existing businesses.
NCDOT has also added additional turn -lanes and turn -lane storage for several U.S. 74
intersections such as at Unionville- Indian Trail Road, Faith Church Road/Harris Teeter
Distribution Center, Wesley Chapel- Stouts Road /Sardis Church Road, Chamber Drive, Rocky
River Road, Poplin Place /Wellness Boulevard, Hanover Drive, and Dickerson Boulevard. 52
Similarly, NCDOT has reconfigured lane assignments at U.S. 74's intersections with Stallings
Road, Unionville- Indian Trail Road, and Poplin Place /Wellness Boulevard.53 NCDOT has also
implemented signal phasing changes on U.S. 74 at Main Street in Wingate. 54 NCDOT's past
experience with this type of improvement has proven to reduce accidents at the intersection,
improving safety as well as preventing the inevitable traffic slow -downs associated with even the
most minor accidents. 55 NCDOT should expect similar improvements in traffic flow from this
project and incorporate these expectations into future traffic forecasts.
Additionally, NCDOT's outdated traffic projections do not take into account the impact
of Union County's bus service to Charlotte. Since 2008, the Charlotte Area Transit System
( "CATS ") has provided the 74X Union County Regional Transit Service. The bus service visits
two locations in Union County — the Monroe K -Mart and Union Town Center --- and transports
riders to several locations in Charlotte, including the Charlotte Transportation Center and the
major intersection of College and 11th, thereby removing many vehicles from U.S. 74 during
peak travel times.56 Recently, Union County extended its contract with CATS to continue this
service. 57
NCDOT discusses this service as inconsequential based on CATS data showing 2013
ridership of 42,000, an average of 142 daily riders. 58 This ignores the great impact of removing
so many individual drivers from the Corridor during peak travel periods. Further, the greater
flaw is NCDOT's failure to consider the impact of future transit ridership in its long -term traffic
forecasts. Transportation analysts have suggested that demand for increased transit services will
continue to grow in Union County as it continues to develop, and CATS representatives have
stated that more commuters can be lured to use transit if there were "a robust transit system []
created in collaboration with other jurisdictions in Union County, Mecklenburg County, Town of
Matthews, City of Charlotte, and CATS .,,59 Transit ridership in general is expected to continue
to increase in the future as gasoline prices increase. Such an effect is surely even more likely in
" Richard W. Baucom, US 74 Highway Improvements in Union County, NC: 2007 - March 2013, table (Mar. 25,
2013), Attachment 17 to SELC Jan. 6, 2014 Comments.
53 Id
54 NCDOT, NCDOT to Make Signal Phasing Changes at Union County Intersection (May 13, 2014), available at
httt)s: // apps. ncdot. gov /newsreleases /detaits.aspx ?t -9831, Attachment 16 from SELC June 9, 2014 Comments.
55 Id.
56 Union County, July 24 Union Update, County Extends Contract with CATSfor Bus Set-vice to Charlotte (July 24,
2013), Attachment 18 to SELC Jan. 6, 2014 Comments.
57 Id
"FSFEIS at A2 -241.
59 US -74 Corridor Revitalization Study: Corridor Revitalization Plan, Project Overview, available at
http: / /www.co.union nc.us /Portals /0/ Planning / Documents lUS- 74%20Corridor %20Study.pdf, Attachment 2
[hereinafter "U.S. 74 Revitalization Plan "].
we

the highly congested future scenario NCDOT has projected: It is reasonable to expect that the
impetus to pursue alternative modes of transportation will increase if automobile congestion in
the U.S. 74 Corridor skyrockets as NCDOT continues to project. The fact that NCDOT never
considered the long -term impact of transit on traffic patterns in the Corridor simply because of
current ridership numbers, demonstrates its failure to evaluate adequately the future need for the
project.
The observed impacts of the improvements to U.S. 74 have been striking. As noted
above, travel speeds in the Corridor are now much higher than when NCDOT first began the
NEPA process many years ago. It is not surprising, therefore, that one engineer, discussing the
improvements, noted that the dramatic results jeopardized NCDOT's ability to prove a need for
the Bypass, stating:
"I just hope the Toll Road Authority does not get wind of what we have done
to move traffic on U.S. 74, they may object strenuously !,,60
And yet more improvements are forthcoming. As NCDOT has acknowledged in the
NEPA analysis, six million dollars in superstreet improvements have been scheduled to improve
the section of U.S. 74 that runs through Indian Trail .61 The superstreets will be implemented in
2015, before the proposed Bypass would be built. 62 NCDOT has estimated that 20 percent more
vehicles will get through a superstreet intersection during rush hour than a traditional
intersection, indicating that these planned superstreets are likely to have a substantial effect on
peak congestion in the U.S. 74 Corridor that NCDOT has also failed to incorporate into its traffic
forecasts. b3 NCDOT has also announced plans to proposed improve several intersections along
existing U.S. 74 between Fowler Secrest Road and N.C. 200 (Morgan Mill Road).ba
NCDOT is also close to finalizing funding for additional area improvements. North
Carolina has recently instituted the new STI transportation prioritization and funding program.
While the scoring process is ongoing, the recently released final STI project scores offer
information on the likelihood of funding for the full range of proposed projects statewide.
NCDOT has relied on these scores in selecting several additional targeted improvements to the
U.S. 74 Corridor that will be constructed within the next several years. For example, NCDOT
has stated that it plans to implement a superstreet intersection upgrade at the U.S. 74 /Rocky
River Road intersection, a project that will function well with the other four superstreets planned
and funded for U.S. 74 in Indian Trai1.65 It has publicly stated that this project is fully funded for
60 E -mail from Wilbur C. Garner, Moffatt & Nichol, to Dean Harris, NCDOT, RE: U.S. 74 @ Stallings (Apr. 8,
2011), Attachment 19 to SELC Jan. 6, 2014 Comments.
" DSFEIS at 2 -12; MUMPO, Aug. 21, 2013 Summary Meeting Minutes, at 2, Attachment 20 to SELC Jan. 6, 2014
Comments.
62 DSFEIS at 2 -12.
61 Carl Gibilaro, MonroeBypassFacts. corn Meeting Summary, prepared for NCDOT (Dec. 3, 2012), Attachment 21
to SELC Jan. 6, 2014 Comments.
64 NCDOT, NCDOT Will Hold Informational Workshop for Proposed Safety Improvements on U.S. 74 in Union
County (Oct. 2, 2014), available at https://apps ncdot. ov /newsreleases /details.as x ?r= 10359, Attachment 3.
65 NCDOT, Highway Scoring Spreadsheet (May 14, 2014), available at
htt s:l /connect ncdot. ovl rolects/ lannin Pa es /ResourcesMPO- RPO.as x, Attachment 17 to SELC June 9, 2014
Comments (see SPOT ID H141897).
10

construction within the next 10 years. 66 As we have demonstrated, superstreet installations
greatly improve traffic flow and safety, thereby reducing the number of accidents and associated
slow-down S.67 Similarly, NCDOT has announced that an interchange improvement at the
existing U.S. 74 /U.S. 601 interchange is also fully funded for construction in the next ten years.
NCDOT must likewise analyze the expected travel benefit from this foreseeable project and
incorporate it into future traffic forecasts.
The final project scores also indicate other projects in the Corridor are very likely to be
funded as well. For example, the proposed Monroe Northern Loop has scored well enough at the
Regional Impacts funding tier that funding is likely. 68 The project requires the construction of
over five miles of new location roadway from U.S 74 to Walkup Avenue at Bivens Roads. 6' The
project scored so well because it received the full allocation of local priority points from both the
NCDOT Division Engineer and the local MPO.70
A project to widen approximately three miles of U.S. 74 in the Study Area also scored
quite well in the highway ranking process, such that it is very likely to be funded for construction
in the near future as well.71 The project would widen U.S. 74 to six lanes through the length of
Monroe,72 which NCDOT's own traffic data demonstrate is among the most congested portions
of the Corridor. 73 The project would also include a median, bike lanes, and sidewalks from
Hanover Drive to Rocky River Road.74 This project scored well because it also received the full
allocation of local priority points from the NCDOT Division Engineer and local MP0.75 The
Division Engineer and MPO similarly prioritized NCDOT's plan to extend turn lane storage at
U.S. 74's intersection with Stanback Ferry Road in Union County, so that the project is also
likely to be funded at the Regional Impacts funding tier in the near future. 76 Certainly these
foreseeable projects would have significant impacts on traffic flow through the U.S. 74 Corridor
that must be incorporated into future traffic forecasts.
66 Id,
67 SELC Jan. 6, 2014 Comments, at 12.
6' NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
https:/ /connect ncdot. gov / projects / planning /Pages /ResourcesMPO- RPO.aspx, Attachment 4 (see SPOT 1D
H090344).
69 Id.
70 Id
71 NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
htt s:/ /connect ncdot.gov/proiects/plaiiiiingZPages/ResourcesMPO-RPO.aVx, Attachment 4 (see SPOT ID
HI 11190).
72 Id.
7' DSFEIS at 1 -9— 1 -] 0.
74 NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
https:/ /connect nedot.gov/ projects/ planning /Pages /ResourcesMPO- RPO.aspx, Attachment 4 (see SPOT ID
HI 11190).
7s Id
76 Id. (see SPOT ID H142085).
II

NCDOT has dismissed any need to consider many of these projects in its NEPA analysis
because these scores were still in draft form, 77 but they were finalized as of September 24, 2014,
well before this permit application was submitted in final form for public comment. Thus, even
if NCDOT (improperly) neglected to include these foreseeable projects in its NEPA analysis,
that omission provides no excuse for failing to account for their impacts in this permit
application.
NCDOT should also consider the impacts of other planned improvements to the road
network served by U.S. 74. For example, NCDOT must analyze projects such as the proposed
"Southern Connector Two," which would provide a new route from NC 200 to Old Pageland
Road .78 Another planned network improvement to consider is the planned extension of Secrest
Avenue from Walkup Avenue to Olive Branch Road, with an interchange for the Bypass .79
NCDOT also has plans to widen Rocky River Road from Old Charlotte Highway to U.S. 74,
strengthening the connection and improving capacity between two major Union County
roadways.80 This project would function well with an additional planned improvement to widen
SR -1009, which parallels U.S. 74, from Rocky River Road to Wesley Chapel- Stouts Road,81 as
well as from Seymour Street to NC 200.82 These projects could greatly improve travel speeds on
U.S. 74 by providing a stronger parallel route to U.S. 74 through a congested portion of Union
County. NCDOT must fully consider these foreseeable projects in new traffic forecasts.
NCDOT must also consider how other area improvements, such as the I -485 HOT lanes project
detailed below, may also significantly improve traffic conditions in the Corridor.
As Dr. Hartgen's recent analysis of NCDOT's FSFEIS demonstrates, NCDOT did not
incorporate any of these completed Corridor improvements or foreseeable planned future
Corridor improvements into the traffic forecasts used to justify the need for the Bypass. 83
NCDOT has provided no additional evaluation in the permit application. Yet before NCDOT
can rely on future traffic projections to demonstrate a need for the Bypass, it must first fully
evaluate the significant impact these Corridor improvements are sure to have on future Corridor
traffic patterns.
b. Reduced growth in Union County
In addition to NCDOT's failure to look at improved travel speeds and the success of
alternative solutions, it has also failed to consider the dramatic changes in Union County growth
trends that further undercut any need for the Monroe Bypass. In its NEPA analysis, NCDOT
considered data on Union County's population growth through only 2010,89 failing to recognize
77 FSFEIS at Section 2.2, Appendix E2; PH WA, Comment and Response Grid far SELC Lefler dated Jayne 9, 2014,
at 22 (Oct. 30, 2014), Attachment 1.
78 NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
hat s: //connect ncdot.gov/t)roiects/vlanniDg/Pages/ResourcesMPO-RPO.aspx, Attachment 4 (see SPOT ID
H090701).
79 Id. (see SPOT ID H090434).
8° Id. (see SPOT ID H090594).
81 Id. (see SPOT ID HI 11195).
82 Id. (see SPOT ID H140416).
83 Hartgen Report 2014 at 36 -37, 41 -42, 44 -45.
"DSFEIS at 1 -4.
12

the major changes in Union County growth trends since 2010. This is exemplified by the fact
that the 2013 DSFEIS incorrectly stated that Union County is the fastest growing county in
North Carolina. 85 Though this statistic may have been true several years ago, today there are at
least 10 counties that are growing faster than Union County. 86 While NCDOT acknowledged
this error in the FSFEIS, it failed to address the flawed analysis based on outdated growth data,
and it continues to maintain Union County's growth rate justifies construction of the Bypass. 87
In fact growth in Union County has slowed considerably to an average annual growth rate of 1.7
percent between 2010 and 2012.85 Growth in the Study Area has slowed even more
significantly, with much of the new growth on the southern and western edges of the county
not an area expected to have any great impact U.S. 74 traffic.89
Further, despite Union County's previous experience of high growth rates, traffic
volumes in the project area have remained steady. In November 2012, NCDOT's Congestion
Management Section reported that after analyzing the Average Annual Daily Traffic Maps for
the previous 10 years, it found that traffic volumes on U.S. 74 had remained steady for the past
decade.90 Reasons given for this apparent contradiction include the fact that a smaller percentage
of workers are now commuting from Union County to Charlotte 91 and the hypothesis that drivers
may be finding alternative routes to avoid U.S. 74.92 Whatever the reason, if traffic volumes in
the Corridor were not increasing when socio- economic growth was high, it seems unlikely that
traffic volumes would increase at a much greater rate now that socio - economic growth has
slowed.
Dr. Hartgen's most recent report highlights how NCDOT has failed to address these
flaws or otherwise provide any justification for its continued expectation of such dramatic
growth in traffic volumes. In the FSFEIS, NCDOT agreed that traffic volumes on U.S. 74 have
not increased since 2000, and that traffic - volume growth rates do not follow population- growth
patterns in the county. 93 Though these observed growth patterns directly contradict the
fundamental assumption underlying NCDOT's forecasts, it has offered no additional information
or explanation in the NEPA analysis,99 nor has it addressed these flaws in the permit application.
As such, we remain concerned that NCDOT has still not reconciled data showing no increase in
traffic volume for more than a decade with its own projection that traffic volumes in the Corridor
will skyrocket in the future.
85 DSFEIS at 1 -2.
$� Hartgen Report 2013, at 6, Attachment 1 to SELC Jan. 6, 2014 Comments.
&' FSFETS at A2 -242.
88 E -mail from Ken Gilland, Baker Corporation, to Scudder Wagg et. al., Baker Corporation, RE: DRAFT US,ACE
Presentation (Population estimates) (Feb. 14, 2013), Attachment 22 to SELC Jan. 6, 2014 Comments.
89 Hartgen Report 2013, at 14, Attachment 1 to SELC Jan. 6, 2014 Comments.
90 Memorandum from Michael Reese, NCDOT, to Sean Epperson, NCDOT, US. 74 Corridor Superstreet and
Traditional Intersection Capacity Analysis, at I (Nov. 5, 2012), Attachment 23 to SELC Jan. 6, 2014 Comments.
9' DSFEIS at 1 -4.
92 Wilbur Smith Associates, Proposed Monroe Connector /Bypass Comprehensive Traffic and Revenue Study,
prepared for NCTA, at 2 -5 (2010), available at
http: / /www ncdot. goy/ proiects/ monroeconnectorldownload /monroe FEIS ComprehensiveTrafficRevenue Study. vdf
[hereinafter Traffic and Revenue Study 20101.
43 Hartgen Report 2014, at 13 -14, 49, 65, Attachment 2 to SELC June 9, 2014 Comments.
g' Id. at 1 -14, 49, 65.
13

In sum, the growth experienced over the past seven years has been vastly different from
the forecast underlying the original need NCDOT articulated to justify construction of the - - - --
Monroe Bypass. Traffic volumes have not increased, but traffic speeds have. Small -scale
improvements have been planned and implemented along U.S. 74 and have been successful.
Population growth in the Study Area has slowed. Congestion is mostly found in key hotspots,
and there are potential alternatives, smaller scale and less expensive than the Bypass, which
might address this congestion. Further, the average travel speed in the Corridor is fast
approaching the sought after 50 miles per hour, and indeed over half the Corridor is now running
at that speed. In light of these changes, construction of the Monroe Bypass simply is no longer
necessary or even justifiable. As such, NCDWR must require NCDOT fully analyze the traffic
and growth forecasts supporting its stated purpose and need for the project before it determine
whether there is any other practical alternative to the project.
B. NCDOT Used Flawed Traffic Forecasts Improperly to Eliminate Many
Practical Project Alternatives.
NCDOT's alternatives analysis is based on flawed traffic forecasts
NCDOT's analysis of practical alternatives supporting its permit application was
conducted as part of its NEPA review. Underlying this analysis are historic traffic volumes and
future traffic forecasts for both the Build and No -Build scenarios, developed in 2008 based on
data available at that time. 95 The primary forecasts used to analyze project alternatives were the
MartinlAlexiou /Bryson 2030 No -Build traffic forecasts, which showed significant congestion in
the U.S. 74 Corridor. This projected congestion, which has since been disproven, was used by
NCDOT both to demonstrate a need for the project and to eliminate project alternatives. 96
NCDOT later conducted a 2035 No -Build as an update to these forecasts, the sole purpose of
which was to confirm the "assumption that the traffic volumes on existing U.S. 74 would stay the
same or increase from 2030 to 2035 if no roadway improvements took place. "97 NCDOT has
since asserted that the 2035 forecasts remain valid for comparing alternatives, explaining that the
forecasts were "only used to show that conditions will worsen in the future," and that "additional
future traffic analyses were not needed to document the present need for the project. "98 In fact,
NCDOT selectively relied only on those questionable forecasts that predicted traffic volumes
would increase, and selectively ignored any data to the contrary that might have led to a different
conclusion. The critical deficiency in NCDOT's alternatives analysis is that it still relies on the
2008 projections for 2030, which have since been discredited, and the permit application
includes no additional studies.
As outlined above, these traffic forecasts are significantly flawed in a variety of ways,
and NCDOT's permit application demonstrates the agency has done nothing since the NEPA
analysis to fix the fundamental flaws underlying the traffic forecasts.
a. The alternatives analysis is skewed by flawed socio- economic data
95 DSFEIS at G -5; see SELC Jan. 6, 2014 Comments at 14 -22 for more detail.
96 DSFEIS at G -35.
97 Id
98 Id. at G -2.
14

As detailed above, the validity of the traffic forecasts is further undercut by several flaws
in the underlying socio - economic data, causing NCDOT to overstate significantly the expected
growth in the Study Area and, thus, the ineffectiveness of project alternatives. Additionally,
NCDOT's analysis of the growth that would be induced by different project alternatives is
fundamentally flawed due to an improper assumption in the "No- Build" forecast. As detailed
below, NCDOT admits that its growth forecast failed to take into account the constraining effect
heavily congested infrastructure might have on future growth.99 Instead, NCDOT developed its
No -Build scenario based on the nonsensical assumption that construction of a major highway in
a new location through an undeveloped area, with nine interchanges, would result in negligible
growth.
In so doing, NCDOT has vastly overstated the levels of growth that would likely occur
without construction of the Bypass. Its analysis severely downplayed the differences among the
various project alternatives. Thus, when NCDOT's consultants examined the impact of induced
growth on NCDOT's traffic forecasts, they were working with flawed data which showed an
improperly low level of growth attributable to the Bypass.100 Moreover, the consultants failed to
conduct a proper analysis of how the Bypass itself — with its miles of new highway, nine new
interchanges, and thousands of acres of open land newly made available to development — will
likely redistribute growth and, consequently, traffic patterns and volume.101
Additionally, even if NCDOT's cursory analysis of this issue were sufficient, we disagree
that the difference of 3 to 4% in traffic volumes between the Build and No -Build scenarios is so
negligible that it need not be given any consideration or further study. 102 Moreover, the 3 to 4%
difference presented is for Union County as a whole; the percentage difference is likely much
higher in the Study Area. 103 NCDWR must require NCDOT to analyze these issues fully before
it can evaluate the practicability of different project alternatives.
b. NCDOT's flawed traffic forecasts bias the agency's analysis of
practical alternatives
Even if NCDOT is correct that the U.S. 74 Corridor will continue to experience
congestion, a point not clear in light of the agency's grave failure to evaluate the impacts of
planned future transportation improvements outlined above, this conclusion does not support
NCDOT's decision to perform no new traffic forecasts. The No -Build forecasts are necessary
not only to evaluate NCDOT's contention that increasing traffic volumes on U.S. 74 require
some solution, but also to evaluate the range of practical alternatives to address the problem.
Rather than using accurate forecasts to compare a range of practical alternatives
transparently, NCDOT has used its bogus, overstated projections to justify its choice of a new -
location bypass as the only practical alternative to address area congestion. 104 NCDOT's
99 FSFFIS at A2 -251.
"" DSFEIS at G- 16 -G -17.
101 Id
102 Id.
103 Id
104 DEIS (2009) at 2- 3 -2 -4.
15

development and evaluation of practical alternatives began with its selection of the Detailed
Study Alternatives ( "DSA ") included in the DEIS, as documented in the Alternatives
Development and Analysis Report (PBS &J, April 2008),05 as well as the agency's further
studies of existing U.S. 74 documented in the Upgrade Existing U.S. 74 Alternatives Study
(HNTB, April 2009).106 The process documented in these studies demonstrates that NCDOT's
analysis of potential alternatives explicitly relied upon the 2035 traffic forecasts created in 2007,
as well as a separate forecast for the Improve Existing U.S. 74 Alternative. 107 NCDOT used
these forecasts to help determine each alternative's potential to meet initial criteria, including
whether the alternative addressed the need to improve mobility and capacity in the U.S. 74
Corridor. 108 The Draft EIS specified that, to be carried forward, "an alternative must provide
more than a minor improvement" as compared to the future No -Build scenario, indicating that
the degree to which the alternative was able to address mobility and capacity in the Corridor was
of particular importance. 109
For example, NCDOT eliminated alternatives such as the Transportation Management
System ( "TSM ") Alternative, which consists of low -cost, minor transportation improvements to
increase the capacity of the existing facility, in the First Qualitative Screening because "the
amount of traffic projected for 2030 along U.S. 74 would overwhelm the effectiveness of minor
TSM improvements."' 10 Similar reasoning was cited as part of the decision to eliminate the
Mass Transit /Multi -Modal Alternative.) i 1
As such, the traffic forecasts were integral not just to determining if there was any need
for the project, but also in screening and analyzing the practicality of different project
alternatives. Accordingly, simply verifying that the U.S. 74 Corridor will continue to experience
high demand may "substantiate the viability of and need for" some sort ofproject in the
Corridor, 112 but it does nothing to reevaluate transparently and publicly the relevant success of
different practical project alternatives. The vast disparity between observed recent traffic
patterns and the traffic projections used in the NEPA analysis demonstrates that NCDOT's
alternatives analysis is insufficient to satisfy the requirements to receive a Water Quality
Certification. By relying on outdated and flawed projections that vastly overstate future traffic
volumes, NCDOT makes practical alternatives to the Bypass that would result in less adverse
impacts look less promising. Instead, NCDWR must require NCDOT to reevaluate alternatives
based on realistic, up -to -date traffic projections grounded in valid assumptions about growth and
traffic volumes before it can consider granting a Water Quality Certification.
2. NCDOT's alternatives analysis fails to analyze patterns of traffic in
the Corridor
"" DSFEIS at 2 -1.
foe Id
io7 DEIS (2009) at 2 -3.
08 Id at 2 -4.
fog Id.
10 Monroe Connector /Bypass Project Alternatives Development and Analysis Report, at 1 -7 -1 -8 (Apr. 2008),
available at http: /lwww ncdot.gov /projects /monroeconnector /download /monroe DEIS AltsReport Rev.pdf.
... Id. at 1 -10.
12 DSFEIS at G -13.
16

In addition to its reliance on outdated and fundamentally flawed traffic forecasts,
NCDOT's alternatives analysis also fails to answer a key question: Where are travelers in the
U.S. 74 Corridor going? The NEPA analysis and permit application fail entirely to evaluate the
percentage of traffic in the Corridor that is local, i.e., moving within a town or traveling from one
town along U.S. 74 to another; the percentage that is commuting into Charlotte; and the
percentage that is traveling through the Corridor to a destination beyond the Corridor. Without
some knowledge of this basic information, it is impossible to evaluate fully an alternative's
practicality.
When the Conservation Groups raised this point to NCDOT, 113 NCDOT asserted that no
further analysis is necessary, as Mecklenburg -Union Metropolitan Planning Organization
(MUMPO, now reorganized as CRTPO) supports the project and the Traffic & Revenue Study
shows the project to be financially feasible with tolls. 114 NCDOT has also pointed to its
October 24, 2012 response letter to Lynda Paxton, then Mayor of Stallings, for "[djetails about
traffic patterns, mixes and volumes," 115 and appear to rely solely on this letter to address the
issue.1 6 Yet as the confused smokescreen of percentages listed without explanation in
NCDOT's letter to Mayor Paxton demonstrates,' 17 NCDOT has never studied the existing or
projected percentages of local versus through - traffic, nor has NCDOT ever applied these limited
findings in its analysis of project alternatives.
The data cited in the letter to Mayor Paxton were collected as part of an extremely limited
Origin - Destination Study in the course of WSA's Comprehensive Traffic & Revenue Study.' 18
In a report to NCDOT by its consultant CDM Smith (formerly Wilbur Smith Associates, who
performed the Traffic & Revenue Study),' 19 the consultant noted the deficiencies of the study,
admitting that the Origin - Destination Study provides Iittle to no information on truck traffic. 120
The consultant explained that "[t]ypically truck drivers do not respond to mail -back survey
requests" of the type used in the Traffic & Revenue Study, citing the response rate at about 1 to
2 %.121 The consultant further admitted that the survey was specifically "geared toward obtaining
a successful survey of passenger vehicles," not data on trucks, which likely make up much of the
through - traffic in the Corridor, 122 Similarly, the survey was conducted in March and April,
months that are certainly not representative of levels of through - traffic passenger cars headed to
the coast during peak beach season (Memorial Day to Labor Day). 123 NCDOT has also publicly
SELC Nov. 30, 2012 Comments, at 38 -39; SELC Ian. 6, 2014 Comments, at 23 -35.
114 DSFEIS at Al -85.
n s Id.
16 DSFEIS at G -2 ( "Mr. Gardner [FHWA] asked how local traffic vs. through traffic was addressed in the traffic
impact analysis and upon review of the letter to Mayor Paxton (Oct. 24, 2012) found the explanation included to
have adequately addressed this issue. "); FSFEIS at A2- 254 -55.
DSFEIS at C3- 6 —C3 -7.
DSFEIS at 0-1, 3 -6 (Traffic and Revenue Study 2010).
"9 9 Id. at A 1 -25.
121, Id. at A 1 -26.
]21 Id.
122 Id. NCDOT says this overstates the importance of truck traffic. FSFEIS at A2 -255. Yet NCDOT's own data
projects nearly 20% of the Bypass traffic will result from trucks. Id.
123 Traffic and Revenue Study 2010, at 3 -1. -
17

admitted outside of the NEPA process that it "has not projected the amount of traffic that will
travel throughout (end to end) the entire corridor versus accessing within the corridor at
interchanges." 124
The engineering firm O'Connell & Lawrence ( "OCL ") also critiqued NCDOT's origin -
destination study in a recent report on several grounds. One concern OCL raised was the
substantial disparity between the number of trips originating and ending in Charlotte, the
dominant employment and population center in the region.' 5 OCL found that this disparity
indicates that the survey handout locations should have been adjusted to provide a better cross -
section of drivers. 126 OCL also noted the low percentage of trucks as opposed to passenger
vehicles responding to the survey was alarming, as it was significantly different from the
percentage breakdown among actual vehicles on the road. 127
NCDOT's failure to analyze the percentages of local and through traffic necessarily
undercuts the validity and thoroughness of its alternatives analysis. Without any comprehensive
study of where traffic is going in the U.S. 74 Corridor, NCDOT has no clear documentation of
the actual usage of U.S. 74. In fact, this point is made within the Traffic & Revenue Study itself,
As the "Report of Independent Economist," completed as part of the Comprehensive Traffic &
Revenue Study, recognizes "the U.S. 74 corridor handles a significant volume of extra - regional
traffic," referring specifically to the traffic going from the Charlotte area to the Port of
Wilmington and the beaches near Wilmington and Myrtle Beach, and vice versa. 128 The report
explains that "no good source of data for drivers of long distances travel through US 74
exists." 129
Because the avowed intent of the project is to speed travel from one end of the U.S. 74
Corridor to another, knowledge about the percentage of traffic making that complete trip is
necessary for projecting usage of the facility and divergence of traffic from existing U.S. 74,
both key to determining how well different practical project alternatives meet the stated purpose
and need. Because NCDOT has not yet analyzed how much local traffic is on U.S. 74, it is
currently unclear who will be best served by the Bypass or the various project alternatives.
NCDOT itself admits that most local drivers will not save much travel time by using the Bypass.
Such information is also essential for determining the impacts of different project alternatives,
specifically, how much traffic is expected to remain on U.S. 74 and whether levels of truck
traffic will decline.
124 US -74 Corridor Revitalization Study Stakeholder Interviews: Transportation Meeting Notes, at 3 (Jan. 18, 2012),
Attachment 28 to SELC Jan. 6, 2014 Comments.
125 O'Connell & Lawrence, Inc., A Closer Look at U.S. 74: Challenges & Opportunities, prepared for SELC, at 15
(2013), [hereinafter "OCL report "].
2s id,
127 Id. at 16.
126 DSFEIS at ICE Appendix K; Kenan Institute of Private Enterprise, Technical Memorandum: Proposed Monroe
Connector/Bypass Comprehensive Traffic and Revenue Study Initial Report of Independent Economist, prepared for
NCTA, at 31 (updated Mar. I, 2010), available at
http: / /www ncdot.pov /projects /monroeconnector/ download/ ICEAppendixKReportlndepEco.pdf.
W

Accordingly, before NCDWR can issue a Water Quality Certification for the Bypass, it
must require NCDOT to analyze who, exactly, would use it. Only then can it perform a thorough
analysis of the practicality of different alternative solutions. To do so, NCDOT must conduct a
full origin - destination study to determine whether this is indeed the case. We have detailed
several suggestions for such a study in our past comments. 130
C. NCDOT Did Not Adequately Consider All Practical Alternatives
NCDOT also failed to conduct a sufficient alternatives analysis in its NEPA review and
has failed to provide any deeper analysis of practical alternatives in this application. NCDWR
must also ensure full consideration of other alternatives which "avoid or result in less adverse
impact to surface waters or wetlands" that also fail to meet the project purpose in its entirety.
15A N.C. Admin. Code 2H.0506(f). Unfortunately, NCDOT failed to consider a number of
alternative options that would reduce the size and density of the project, but that would
nonetheless satisfy the project purpose of providing high -speed travel in the U.S. 74 Corridor in
a manner which would avoid or result in less adverse impact to water resources in the Study
Area. 15A N.C. Admin. Code 2H.0506(f). In light of NCDOT's failure to fully consider these
options it has failed to adequately demonstrate that there is no practical alternative to the
proposed project.
The alternatives analysis in NCDOT's NEPA review was guided by an
improperly narrow statement of purpose and need
As noted above, NCDOT's analysis of practical project alternatives occurred as part of
the NEPA evaluation, the scope of which was guided by the project's Statement of Purpose and
Need. See 40 C.P.R. § 1502.13. As such, the agency's delineation of the project's purpose was
an essential step in discerning practical project alternatives. Yet here, NCDOT improperly
narrowed the project purpose, thereby precluding meaningful consideration of a full range of
alternatives.
The stated purposes of the Monroe Connector /Bypass in the most recent NEPA analysis
remain unchanged from the previous EIS, and are:
1) To construct a facility that allows for safe, reliable, high -speed regional travel
in the U.S. 74 Corridor between I -485 in Mecklenburg County and the Town
of Marshville in Union County, in a manner consistent with the North
Carolina Strategic Highway Corridors Vision Plan for U.S. 74 and the
designation of U.S. 74 on the North Carolina Intrastate System.
2) Improve mobility in the U.S. 74 Corridor within the project study area, while
maintaining access to properties along existing U.S. 74. T1311
This statement includes so many specific elements there is no chance that any option
other than the predetermined new - location Bypass could meet the requirements. The project
130 SELC Jan. 6, 2014 Comments, at 23 -25.
131 See NCDOT, Final Statement of Purpose and Need for the Monroe Connector/Bypass (Feb. 2008), available at
htt : / /www ncdot. ov/ roicets /monroeconnector /download /FinalMonroe PN 020608. df.
19

must apparently allow for "high- speed" travel. 132 The project must extend from one very
specific location (I -485) to another specific location (Marshville). 133 And the project must
maintain access to properties along U.S. 74.134 Each of these elements is arbitrary, and in
combination they form a statement that is so unreasonably narrow that all non -new location toll
highway alternatives were never seriously considered.
For example, as noted, the "high- speed" element, with its very specific speed limit of 50
miles per hour, is claimed to have its origin in the Strategic Highway Corridor ( "SHC ") Vision
Plan. But this designation is based in a past planning product that was never subject to public
comment and consideration, 135 rather than any need determined from the NEPA analysis.
Additionally, as detailed above, the Corridor is in fact currently operating at an average speed of
44 miles per hour, a vast improvement over past years, and significant additional improvements
are planned and funded for next year. By setting 50 miles per hour as a requirement, it seems
that NCDOT has hoped to avoid consideration of many lower impact solutions that would not
require a toll and would provide real congestion relief to Union County drivers. Removal of this
artificial limit would allow a more comprehensive approach to solutions for the Corridor, and a
truly unconstrained look at the costs and benefits of different options.
The Bypass beginning and end points mandated in the Statement of Purpose and Need are
similarly arbitrary. NCDOT has articulated no rational reason why the small rural town of
Marshville must be the end of the project. NCDOT's own analysis demonstrates that the
majority of Corridor congestion occurs around Monroe. 136 Long before Marshville, the speed of
traffic along U.S. 74 increases to 50 miles per hour and higher.] 7 By prescribing these two
arbitrary points as project termini in the Statement of Purpose and Need, NCDOT precluded
consideration of many lower impact alternatives that would address the true congestion hotspots
in the U.S. 74 Corridor.
The most arbitrary of the constraints placed in the Statement of Purpose and Need is the
requirement that any alternatives must "maintain access to properties along existing U.S. 74."
Requiring that access be maintained to properties along existing U.S. 74, while neglecting the
many properties that must be taken to construct a new - Location Bypass, has no rational basis.
Many of the farms and homes that stand in the path of the highway, as currently planned, have
been in their owners' families for over 100years. The only basis for valuing the businesses along
U.S. 74 and giving no value to the homes, farms, and businesses that must be taken by the
Bypass is to preclude consideration of alternatives that focus on improvements to existing U.S.
74.
The arbitrary nature of these requirements is further exacerbated by the fact that they
have little to do with the project's stated need. As discussed above, to establish a "need" for the
Bypass, NCDOT has set forth (now quite outdated) data showing that U.S. 74 is congested, but
133 DSFEIS at 1 -3, 2 -3.
133 Id.
134 Id.
135 Id,
136 DSFEIS at 1- 9 -1 -12.
137 Id.
20

has then constructed a project purpose that does not address the stated need. In fact, as
explained, many of the constraints actually serve to eliminate consideration of practical
alternatives that would meet the stated need.
We understand NCDOT has been charged by the Legislature to build the Monroe Bypass,
but despite the deference that is generally accorded to an agency's selection of purpose and need,
that deference does not go so far as to give agencies Iicense to disregard the requirement that
they select the a less destructive practical alternative. 15A N.C. Admin. Code 2H.0506(b)(1);
(c)(1); (d)(1).
2. NCDOT must consider a full range of reasonable alternatives and
combinations of alternatives
As detailed in our earlier comments, NCDOT's NEPA analysis failed entirely to provide
any empirical data or specific justifications as to why a suite of alternatives such as targeted
Corridor improvements, increased mass transit, and multi -modal options would not function
together to provide high -speed travel in the U.S. 74 Corridor. 138 Despite the significant changes
in the Study Area, NCDOT never evaluated the ability of such alternatives to work together,
instead Iimiting its cursory analysis of alternatives to how each might function individually.
Additionally, NCDOT's review of a range of alternatives has not been updated in almost
a decade. The alternatives analysis now presented to NCDWR is largely recycled from previous
studies. For example, the analysis supporting the 2009 EIS was comes primarily from the
analysis that came before it, with decisions made to eliminate alternatives before the NEPA
process even formally began. 139 NCDOT again resuscitated this old analysis and again imported
it wholesale into its most recent NEPA analysis, giving no true consideration to any
transportation improvement other than the Bypass and no fresh evaluation of these old
alternatives. Despite our comments calling for real study of a detailed list of practical project
alternatives, loo NCDOT failed to correct this truncated alternatives analysis in its NEPA review
or in the permit application.
These alternatives have therefore not been studied at a level sufficient for NCDWR to
assess adequately whether there is no practical alternative to the project. Given the outdated
nature of NCDOT's alternatives analysis and the changed circumstance described above,
NCDWR must require NCDOT to reinitiate its alternative analysis from the beginning and use
updated traffic and socio- economic forecasts to consider a full range of alternatives, and
combinations of those alternatives, before the NCDWR can issue a Water Quality Certification.
In our many past comment letters to NCDOT, we have regularly suggested a variety of
alternatives which NCDOT must consider. These alternatives are highlighted below.
138 SELC Jan. 6, 2014 Comments, at 25 -36.
139 Memorandum from Jill Gurak and Carl Gibilaro, PBS &J, to Jennifer Harris, NCDOT (Oct. 19, 2006).
Attachment 29 to SELC Jan. 6, 2014 Comments.
"" See, e.g., SELC Jan. 6, 2014 Comments, at 25 -36.
21

a. Improvements to existing U.S. 74
To start, NCDWR must require NCDOT to give full consideration to upgrades to existing
U.S. 74. As discussed above, we have already begun to see that the implementation of a wide
variety of recent small - scale, low -cost traffic improvements to the Corridor has dramatically
improved traffic flow along U.S. 74. NCDOT's measures to implement many of the
improvements, such as those upgrades suggested in the Stantec Study, have been a great success,
and other planned and funded improvements are likely to have an even greater impact, 141
NCDOT recognizes there has been a reduction in congestion, but claims that the improvements
implemented thus far have not yet met the project need, and therefore there is no reason to
evaluate further such improvements. 142 Yet these observed effects, when coupled with steady -to-
waning traffic volumes noted above, indicate that a renewed study of the Improve Existing U.S.
74 alternatives based on updated traffic and socio - economic forecasts is necessary.
Additionally, as described above, NCDOT's most recent data demonstrate that the U.S.
74 Corridor is hampered by patches of congestion in specific hot - spots, rather than corridor -wide
traffic problems. As such, NCDOT's alternative analysis must seriously consider a series of
targeted improvements to address congestion hot - spots. One problem area we have suggested
NCDOT target is the stretch of existing U.S. 74 from Fowler Secrest Road to US 601. As
NCDOT has recognized, much of the slowdown in this area is due to the density of traffic lights
between Fowler Secrest Road and US 601.143 The DSFEIS noted that the two densest areas of
traffic signals are from Fowler Secrest Road east to Secrest Shortcut Road (3.5 traffic signals per
mile), and from Stafford Road just east of US 601 North to Campus Park Drive just west of US
601 South (3.7 traffic signals per mile)."' The DSFEIS quantified the impact of this spacing as
placing an extra 9 to 16 percent travel time on Corridor users. 145 Though we raised this point
with NCDOT in our comments on the DSFEIS, "' NCDOT has not addressed this
improvement. 147 NCDWR must ensure the alternatives analysis for this project considers this
and similar targeted hot - spots, such as another superstreet facility in addition to those planned for
Indian Trail, or eliminating some of the dense signalized crossings throughout the existing
facility, to address particular hot - spots.
NCDOT has dismissed these targeted, small -scale alternatives out of hand because, it
claims, they fail to meet the project's arbitrary purpose and need. 148 Yet this assessment is based
entirely on outdated, inaccurate traffic forecasts.149 For example, in an October 2012
141 See id.
14z FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014, at 10 (Oct. 30, 2014), Attachment 1.
147 DSFEIS at 1 -13.
144 Id.
145 Id.
146 SELC Jan. 6, 2014 Comments, at 26 -27.
147 See FSFEIS at A2 -259.
148 See FSFEIS at A2 -260; see also FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014 (Oct.
30, 2014), Attachment 1.
149 Id. at 2 -9; Memorandum from Bradley Reynolds, HNTB, to Christy Shumate, NCDOT, STIP R- 3329IR -2559
Monroe Connector /Bypass (Oct. 18, 2012), available at
http: / /www nedot. ov /projects /monrocconnector /dowli load /MemotafileStanteeU.S. 74CorridorStudy 10 1 812.pdf.
[hereinafter "Stantec Memo "].
22

memorandum evaluating the Stantec Study, NCDOT staff dismissed the traffic improvements
suggested in the Stantec Study as failing to provide any long -term benefit because the road
would be "overwhelmed by projected traffic in the corridor," relying explicitly on a comparison
with old traffic forecasts performed for the original NEPA analysis, now shown to be
significantly outdated. 150 To ensure a proper examination of this practical alternative, NCDWR
must require NCDOT to take a fresh look at the ability of a suite of such improvements based on
valid updated traffic forecasts, and taking into account the success of the improvements that have
been implemented to date.
b. U.S. 74 Revitalization Study
NCDOT's re- analysis of practical alternatives must also consider those improvements
suggested in the U.S. 74 Revitalization Study. Since publication of the original EIS, four local
government entities representing communities along U.S. 74 in the Study Area have begun their
own investigation into improving existing U.S. 74 by funding the U.S. 74 Revitalization
Study.151 The Study is a coordinated effort on the part of Union County, the Town of Stallings,
the Town of Indian Trail, the City of Monroe, MUMPO and NCDOT.1 r 2 It was intended to
develop a coordinated land -use, urban design, economic development, and multi -modal
transportation plan, to be implemented by the local governments and NCDOT. 153 For example,
Union County has incorporated the final plan into its recent growth management planning
effort. 1-14 Though NCDOT correctly notes that it was not the purpose of the U.S. 74 study to
develop alternatives to the Bypass, 155 the final plan catalogues a series of feasible upgrades to
improve traffic flow along U.S. 74 in the Bypass Study Area that NCDOT should have evaluated
as part of a suite of improvements to the existing facility.' 56
For example, one specific alternative recommendation included in the U.S. 74
Revitalization Study (as well as in Dr. Hartgen's 2013 report) is the development of frontage
roads along portions of U.S. 74. A frontage road, also known as a local access or service road, is
a local road that runs parallel to a higher - speed, limited - access road, and is intended to maintain
access to business or other locations along the Corridor. As Dr. Hartgen has illustrated, NCDOT
has failed to consider frontage roads, or even partial frontage roads, as part of a suite of
improvements along U.S. 74.157 He notes that the alternatives analysis should rightly include
evaluation of such options that may take a minimal, or minor, number of existing properties
lso Stantec Memo, at 3.
15' See U.S. 74 Revitalization Plan, Attachment 2.
152 Id.
153 Id
154 See, e.g., Adam Bell, Union Counly adopts growth management plans (Oct. 24, 2014), CHARLOTTE OBSERVER,
available at htt : / /www.charlotteobserver.com /2014 /10124 /5264728 /union -coup -ado ts- rowth-
management.html #.VGzJM nF93B, Attachment 5.
"" DSFEIS at Al -84; FSFEIS at A2 -261.
156 U.S. 74 Revitalization Plan, Attachment 2; see also HNTB, Union County Commissioners Progress Briefing
(May 7, 2013), Attachment 31 to SELC Jan. 6, 2014 Comments.
157 Hartgen Report 2013, at 8, Attachment 1 to SELC Jan. 6, 2014 Comments.
23

along existing U.S. 74.158 Such consideration would be logical, given the vast number of
properties that would be taken by the Bypass.
NCDOT has implemented similar upgrades on current alignment along U.S. 74 in the
adjacent Mecklenburg County, yet did not consider them as an alternative, or as part of a suite of
alternatives, for this project. For example, as part of a suite of improvements to Independence
Boulevard (U.S. 74 in Mecklenburg County), NCDOT intends to convert a portion of
Independence Boulevard to an expressway. 159 Its plan involves several particular improvements
functioning together to improve traffic flow. NCDOT's plan would remove existing traffic
signals at Sharon Amity Road and Idlewild Road, 160 and would widen the existing six -lane
roadway to include four general purpose lanes and one bus lane in each direction. 161 The agency
will also build bridges, or grade separations, at interchanges with Sharon Amity Road, Idlewild
Road, and Conference Drive.162 Yet NCDOT has offered no explanation as to why such
alternatives were possible (and in fact preferable) along one stretch of U.S. 74, but were given
scant attention as an alternative for improving the stretch of U.S. 74 at issue here, just one county
over.
Development of a Parallel Road Network
NCDOT must also evaluate, as part of a suite of improvements, options to strengthen the
parallel road network. For example, improvements to other Union County roads could provide
local drivers with alternative routes and thereby lessen local traffic congestion on U.S. 74. In
conjunction with other targeted improvements to U.S. 74 itself, such upgrades could leave U.S.
74 to serve as a high -speed corridor while still maintaining access to existing businesses.
On several occasions, we have detailed to NCDOT specific suggestions of such
improvements. 163 NCDOT has regularly dismissed each individual improvement as insufficient
to address the project's stated purpose and need. 164 We raised the consideration of
improvements to Old Monroe Road and Old Charlotte Highway in our November 2012 comment
letter, 165 but received the response, without analysis, that such improvements were found
not to meet the project purpose and need. 166 This response fails to recognize that a parallel road
network, in combination with other specific improvements, could serve to meet the project's
purpose and need. Rankin v. Coleman, 394 F. Supp. 647, 657 -59 (E.D.N.C. 1975).
15s Id.
119 NCDOT, U.S. 74 Widening & Improvements, available at http : / /www.ncdot.aov /proiects /U.S.
74Wideninglmprovements /, Attachment 32 to SELL Jan. 6, 2014 Comments; see also, CRTPO, Independence Blvd.
Widening (Sharon Amity to Conference Drive), available at littl)://www.crtpo,or.giindepeiideiice-blvd-widening-
sha ron-ann i - conference- drive, Attachment 33 to SELC Jan. 6, 2014 Comments.
160 NCDOT will begin setting barrier halls on Independence Boulevard in Mecklenburg County (June 12, 2013),
available at https: Happs. ncdot. gov /newsreleases /details.asi)x ?r =8383, Attachment 34 to SELL Jan. 6, 2014
Comments.
161 Id.
162 Id.
163 See, e.g., SELC Jan. 6, 2014 Comments, at 30 -32.
164 See, e.g., FSFEIS at A2 -263.
161 See SELC Nov. 30, 2012 Comments, at 35 -36.
166 DSFEIS at A 1 -83; FSFEIS at A2 -263.
24

NCDOT has stated it need not evaluate such a suite of improvements because "SELC
failed] to provide any analysis to support their assertion that a combination of a parallel road
network, working together with targeted improvements, could serve to meet the project's
purpose and need . "167 This statement demonstrates NCDOT's fundamental misunderstanding of
its duties under NEPA to evaluate alternatives and further underscores its failure to consider fully
all practical project alternatives.
NCDWR must require NCDOT to evaluate such practical alternatives before it may grant
a CIean Water Certification. For example, such an evaluation must include options to improve
Old Monroe Road, which runs parallel to U.S. 74 along its southwestern side, crossing the entire
length of the City of Monroe, thus offering the opportunity to address one of the greatest
congestion hot -spots along U.S. 74.168
Such improvements would provide local traffic with a neighboring alternative to some of
the most congested portions of existing U.S. 74, allowing local travelers the option to move more
easily through Monroe's core business district without relying on U.S. 74. Similar results may
be realized through the Monroe Road Loop, which is now likely to be funded. Suggested
improvements to Secrest Shortcut could also address congestion hot -spots on existing U.S. 74.169
Another parallel road that could greatly alleviate a congestion hot -spot is the Monroe
Road Loop. The project would be a new road to continue the recently completed Martin Luther
King Boulevard from Secrest Short Cut Road near Monroe Mall to Walkup Road at the east end
of Monroe. This project is already included on the 2440 MTP Candidate Projects List. 170 Much
smaller and less expensive than the Monroe Bypass, this "mini- bypass" would create additional
access in the most congested part of the Corridor, helping to alleviate one of the biggest
congestion hot - spots. These suggested improvements can be seen in Figure 1, below. Other
potential improvements to the parallel road network are detailed in the U.S. 74 Revitalization
Study. 171
167 FSFEIS at A2 -263.
'G8 For more detail, see Business leaders, NCDOT discuss Monroe Bypass, UNION COUNTY WEEKLY (Feb. 8, 2013),
Attachment 35 to SELC Jan. 6, 2014 Comments; Indian Trail, Stallings, NCDOT working on Old Monroe plans,
UNION COUNTY WEEKLY (Nov. 30, 2012), Attachment 36 to SELC Jan. 6, 2014 Comments; Widening coming for
Old Monroe Road ?, UNION COUNTY WEEKLY (Aug. 24, 2013), Attachment 37 to SELC Jan. 6, 2014 Comments;
Heather Smith, Charrette weighs plans for Old Monroe Road, THE ENQUIRER JOURNAL (Aug. 31, 2013),
Attachment 38 to SELC Jan. 6, 2014 Comments; NCDOT, Notice of Multi-Day Design Charrette for E. John
Street /Old Monroe Road (State Road 1009) Improvements Through Matthews, Stallings, and Indian Trail,
Attachment 39 to SELC Jan. 6, 2014 Comments.
69 See SELC Jan. 6, 2014 Comments, at 30 -32.
"0 CRTPO 2040 MTP Candidate Projects (Aug. 21, 2913), available at
http://www,crtpo.org/PDFs/LRTP/2040/2040 MTP Candidate Projects List. pd Attachment 40 to SELC Jan. 6,
2014 Comments.
"' U.S. 74 Revitalization Plan, at 63 -71, Attachment 2.
25

LEURD
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I �5,.�1 .4 s".,u �` 1 r�u�j slotw. va.nxatgwplgnnrmomaerq,+neaarr
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JS } \ r
�. ;` ,� �•
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Figure 1. Examples of projects to develop a parallel road network, such as along Old Charlotte
Hwy /Old Monroe Rd (in red), Secrest Short Cut Rd (in green), and the Monroe Rd Loop (in
blue), which could make significant strides towards targeting congestion hot -spots on U.S. 74.
d. Expanded Transit
As recommended in our comments on the NEPA analysis and in the U.S. 74
Revitalization Study, NCDWR must require NCDOT to consider transit options in the Corridor
as part of a comprehensive solution to address the project's purpose and need. The
transportation agencies eliminated this solution from further study in the First Qualitative
Screening, citing its inability to "noticeably improve mobility and capacity in the project study
area as well as a finding that it would not divert enough vehicular traffic . "172 Such a response
ignores the viability of increased transit as one part of a comprehensive solution. Similarly,
NCDOT's dismissal of the Revitalization Study ignores the fact, however the study's purpose
was defined, it reached a well - supported conclusion that increased transit may be a viable option
to address transportation concerns in the U.S. 74 Corridor.' 73
While Union County transit ridership may currently be slightly lower than other
surrounding areas, it has been increasing. 174 In fact, the transportation experts who compiled the
U.S. 74 Revitalization Study found that demand for increased transit services will continue to
172 See id. at 2 -8, AI -84; NCTA, Draft Alternatives Development and Analysis Report (Nov. 5, 2007), at 1- 9 -1 -11,
available at
http://wwwncdot.gov/proaects/monrocconiiector/download/monroe archives A1tsDevR tAllScreenin s110607. df.
173 U.S. 74 Revitalization Plan, at 3, Attachment 2.
174 Id. at 16.
26

grow in Union County as it continues to develop, and CATS representatives interviewed as part
of the study stated they believed more commuters could be persuaded to use transit if there were
"a robust transit system [] created in collaboration with other jurisdictions in Union County,
Mecklenburg County, Town of Matthews, City of Charlotte, and CATS. "17s
NCDWR must encourage NCDOT to evaluate the role it can play in supporting and
expanding transit use in the U.S. 74 Corridor. As we have noted to NCDOT, the agency has
done well to promote transportation alternatives in conjunction with the Fortify project in the
Raleigh area.' 76 NCDOT dismisses these activities as a "temporary initiative, "1 7 but has never
addressed why such efforts would not function as part of a comprehensive package of
improvements to the U.S. 74 Corridor.
NCDOT must also evaluate increased rail freight options that could help alleviate some
of the truck traffic from U.S. 74. Again, while NCDOT has considered freight rail individually,
it has never evaluated freight rail projects as part of a suite of Corridor improvements.17' While
we agree that freight rail alone will not solve transportation problems in the U.S. 74 Corridor,
NCDOT has still failed to provide any analysis of how expanded freight rail, in combination with
other alternatives, could form an important part of the solution.
Transportation Demand Management
NCDOT's NEPA analysis also reveals that it did not conduct a sufficient study of
Transportation Demand Management ( "TDM ") options that might work in conjunction with
other alternatives by reducing demand for the road infrastructure. Dr. Hartgen's study suggests
options such as staggered or flexible works schedules could be effective in the Study Area as part
of a suite of alternatives, 179 yet discussion of such options is conspicuously absent from the
alternatives analysis. Yet as we have noted in our comments on the NEPA analysis, NCDOT has
spent significant resources promoting the values of staggered or flexible work schedules to
employers within the Raleigh area as part of its recent "Fortify" effort, indicating that they
understand these TDM options can have significant impacts on peak traffic - demand
175 Id. at 78.
176 See SELC Jan. 6, 2014 Comments, at 33; see also NCDOT, Forte Frequently Asked Questions, available at
http: / /ncdot.gov /fortifvnc/ resources /docs /Forti , FA .pdf , Attachment 41 to SELC Jan. 6, 2014 Comments;
Dawn Kurry, Free bus may be faster than Fortify traffic freeze, TRIANGLE BUSINESS JOURNAL, Attachment 42 to
SELC Jan. 6, 2014 Comments; NCDOT, Fortify: Transit Options, available at http://ncdot.gov/fortifync/transit-
o tp ions /, Attachment 43 to SFLC Jan. 6, 2014 Comments; NCDOT, Fortes Powerpoint Presentation, available at
htt : / /ncdot. ov /ford ne/ resources / docs /NCDOTPowerPointFORTIFYl 182013. t, Attachment 44 to SELC Jan.
6, 2014 Comments; NCDOT, Fort: Driver Information, available at http:/ /ncdot.gov /fortifync /driver - info/,
Attachment 45 to SELC Jan. 6, 2014 Comments; Dawn Curry, Massive 1- 401440 rebuild means Raleigh must
'Fortify' through 2016, TRIANGLE BUSINESS JOURNAL (Oct. 28, 2013), Attachment 46 to SELC Jan. 6, 2014
Comments; Bruce Siceloff, Road Worrier: NCDOT says not to worry about 3 years of Beldine misery — be happy!,
NEWS & OBSERVER (Oct. 28, 2013), Attachment 47 to SELC Jan. 6, 2014 Comments.
177 FSFEIS at A2 -265.
"'See, e.g., FSFEIS at A2-266-67; FEIS (2010), Appendix B, at B-3-34—B-3-35.
179 Hartgen Report 2013, at 11, Attachment I to SELC Jan. 6, 2014 Comments.
27

management, 180 Accordingly, NCDWR must require NCDOT devote the same consideration of
these options in regard to this project before issuing a Water Quality Certification.
f. Reduced Interchanges
NCDOT should also fully evaluate alternative designs for the proposed toll road. The
current design includes nine separate interchanges, though NCDOT has not articulated why so
many interchanges are needed if the purpose of the road is to provide a high -speed facility
through undeveloped land from I -485 to Marshville. Each of the 25 variations on a new- location
highway considered as preliminary study alternatives in the Third Quantitative Screening
involved between seven and 10 interchanges.' 81 NCDOT has asserted that the interchanges are
necessary to serve projected traffic demand in the target year, as well as to support the toll
revenue bonds required to finance the project. 182 And yet, because NCDOT is ignorant of the
traffic patterns in the Corridor, and the extent to which traffic is local, there is nothing in the
NEPA analysis or permit application to point to the elimination of interchanges undercutting the
project's purpose and need. As with other alternatives, NCDOT has improperly dismissed this
alternative out of hand because of its reliance on faulty traffic forecasts. Thus, NCDWR must
require NCDOT to perform a full evaluation of alternative toll road designs that may have less
harmful environmental impacts before it can properly make its determination regarding practical
alternatives.
D. NCDOT Has Not Adequately Compared the Financial Practicability of
Various Project Alternatives
Additionally, NCDWR's comparison of practical alternatives must also consider project
cost. As we have detailed in our comments to NCDOT, other practical project alternatives
would be significantly most cost effective than construction of the Bypass, and in fact it the
Bypass's financial picture now appears quite unstable. In light of North Carolina's substantial
shortfall in transportation funding — most recent figures show approximately $70 billion in
transportation needs and just over $12 billion in available funding for the next decade18, — it is
increasingly clear that available funding must be prioritized for only the most meritorious
projects.
NCDOT has stated that Bypass construction will cost approximately $838 million, only a
fraction of which will be covered by revenues generated from tolling. The remainder of the cost
will be borne by an annual appropriation, saddling taxpayers with debt for the next several
decades. Though NCDOT has not analyzed the cost of a package of targeted Corridor
"' NCDOT, Fort: Employer Resources, Attachment 52 to SELC Jan. 6, 2014 Comments; NCDOT, Fort
Powerpoint Presentation, available at
http://iicdot.gov/fortifync/ resources /docs/NCDOTPowerPointFORTIFYI 182013. t, Attachment 44 to SELC Jan.
6, 2014 Comments; Bruce Siceloff, Road Worrier: NCDOT says not to worry about 3 years of Beltline miswy — be
happy!, Nsws & OBSERVER (Oct. 28, 2013), Attachment 47 to SELC Jan. 6, 2014 Comments.
18' DEIS (2009) at 2 -26.
182 DSFEIS at A 1 -85.
'S3 Calvin Leggett, NCDOT, Projected Revenues and STIP Budget 2016 -2025, presentation to the North Carolina
Board of Transportation Funding & Appropriations Strategies Committee (June 4, 2014), Attachment 1 to SELC
June 9, 2014 Comments.
28

improvements, as described above, this alternative is likely to be significantly less expansive that
construction of the new - location Bypass. For example, the full menu of improvements
recommended in the Stantec Study was estimated to cost approximately $15 million, 184 a
substantial departure from the Bypass's large price tag.
And in fact, taxpayers may be burdened with even higher debt if the Bypass does not live
up to expectations. As outlined in our comments on the NEPA analysis, the 2010 Traffic &
Revenue study supporting the project's financial plan behind the project is deeply flawed and
significantly outdated. 185 Several of the key assumptions behind this study are no longer valid.
The study asserted to analyze the potential future growth in the Study Area, future traffic
patterns and the willingness of future travelers to pay the toll to use the road. The study relied on
2010 operating speeds and traffic projections in the U.S. 74 Corridor, which as detailed above,
are significantly different from current projections.' 86 Moreover, the Traffic and Revenue Study
was based on a number of findings that were questionable in 2010 and are even more so today.
In addition, the report acknowledged that it relied on a series of assumptions and explained that
if any of those assumptions changed the report and its findings would no longer be valid. For
example, one fundamental assumption in the Traffic and Revenue Study is that there will be no
"additional capacity" added or improvements made to competing roadways such as U.S. 74.187
Yet as detailed above, a number of improvements have been made on U.S. 74 since 2010, and
traffic flow has improved substantially. And more improvements are planned, as outlined above.
The change in these travel time savings has serious implications for the project's revenue
projections, as drivers are less likely to pay as high a toll for less of a travel time benefit.
The Traffic and Revenue Study also requires traffic volumes to continue to grow, 188 yet
as demonstrated, traffic levels along U.S. 74 have essentially been stable in the past decade, with
some periods of decline. Likewise, the study relied on high estimates of future economic growth
now shown to be unlikely.189 Another issue complicating continued reliance on the study is that
it is based on the assumption that the Bypass will open to traffic in 2015, a scenario which is now
impossible.190 Additionally, the study assumes that gas will remain at $3 a gallon in 2010
dollars, another assumption that has not held true.191 In light of North Carolina's significant
transportation funding shortfall, it is simply not in the public interest to construct such a large,
expensive project, particularly in light of dubious financial data.
Moreover, the transportation agencies also appear to currently be in the process of
negotiating an escalation price with the project contractor, indicating the project cost is likely to
increase significantly. Further, NCDOT's actions appear to overlook the continued viability of
the contractor's bid. We note too that the local member of the contractor joint venture, Boggs
... Stantec, US 74 Corridor Study (July, 2007), Attachment 5a.
1S5 See details at SELL Jan. 6, 2014 Comments, at 55 -60.
186 Traffic and Revenue Study 2010, at 4 -9, Attachment 84 to SELC Nov. 30, 2012 Comments.
a' Id. at 6 -4.
1S. Id. at 6 -5.
1 a9 Id.
i90 Id. at 6 -4.
i9i Id. at 6 -5.
09

Paving, and several of its top employees have all recently plead guilty in a major federal fraud
scheme involving the Bypass. 192 Styx Cuthbertson Trucking, Inc., a named co- conspirator who
recently pled guilty as well, was originally included as a subcontractor on the Monroe Bypass
bid.1 ' Thus far NCDOT has refused to rebid the contract, and has offered no statement as to
how the guilty pleas by the project contractor's local arm may affect the'project Cost .194 As such,
the cost of the Bypass is sure to continue to escalate, perhaps to the point that the project is not,
in fact, practical. NCDWR must require NCDOT to evaluate the practicability of other, less
costly alternatives in light of this information.
H. NCDWR Cannot Issue a Water Quality Certification Because NCDOT Has Failed
to Demonstrate that the Monroe Bypass Will Not Substantially Impair Downstream
Water Qualify
North Carolina law does not permit NCDWR to issue a § 401 certification for an activity
which results in "cumulative impacts, based upon past or reasonably anticipated future impacts,
that cause or will cause a violation of downstream water quality standards." 15A N.C. Admin.
Code 2H.0506(b)(4), 21-1.0506(c)(4). Upon consideration of this factor, NCDWR must deny
NCDOT's permit application. First, the agency based its analysis of indirect and cumulative
impacts on a flawed process which has incorrectly minimized the impacts to downstream water
192 US v. Boggs Paving, Inc., Bill of indictment, No. 3:13CR204_MOC -DSC (W.D.N.C. Jul. 25, 2013), Attachment
6; Boggs Paving official pleads guilty to federal charges (Jul. 22, 2014), ENQUIRER JOURNAL, available at
http: / /www.enquirerlournal.com /news /x 143264263Boggs- Paving - official - pleads- guiliy-to- federal - charges,
Attachment 7; U.S. Attorney, Former Chief Financial Officer for Boggs Paving, Inc. Pleads Guilty in Connection
with $ &7 Million Fraud Scheme Involving Government - Funded Construction Projects (Jul. 22, 2014), available at
http: / /www fbi.gov/ charlotte /press - releases /2014 /former- chief - financial- officer - for - boggs- paving -ine.- pleads- Puilty-
in- connection- with,87 -mil lion - fraud - scheme- involvine- Rovernment- funded- construction- projects, Attachment 8;
Blake Hanson, Boggs Paving vice president pleads guilty to frazid (Jul. 24, 2014), WSOCTV, available at
http: / /www.wsoctv.com /news /news /local /bogp,s -pavin -vg ice- president- pleads - guilty - fraud /ngmyf /, Attachment 9;
Kathryn Burcham, Paving company facing federal fraud charges recently awarded multimillion - dollar contract (Jul.
26, 2014), WSOCTV, available at http://www.wsoctv.com/news/news/locat/ avin -cons an -facin - federal - fraud-
charees- recent/nY5K4 /, Attachment 10; Elizabeth DePompei, Fourth paving company executive pleads guilty in
federal frazid case (Aug. 5, 2014), CHARLOTTE OBSERVER, available at
http: / /www.charlotteobserver .com /20I4/08/04/5086366/fotirth- paving - company- executive htnil #.0 3w1U1.OWHt,
Attachment 11; Kathryn Burcham, 5 indicted in alleged scheme to defraud the government in paving contracts
(Aug. 20, 2014), WSOCTV, available at http: / /www.wsogtv.com /news /news /local /5- indicted - alleged - scheme-
defraud- government- pavin /nZTZx/, Attachment 12; Michael Gordon, `Drew' Boggs, paving company CFO, to
plead guilty Thursday (Aug. 26, 2014), CHARLOTTE OBSERVER, available at
htt :// www .charlotteobserver.com /2014/08 /2615131242 /drew -bo s avin - ceo -to- lead html #.0 3WT01 OVA ,
Attachment 13; When Boss Hog and the Good Old Boys Decide to Hoodwink Uncle Sam on Road Contracts... (Aug.
27, 2014), CHESAPEAKE TODAY, available at http:/ /www. the- chesapeake. com / 2014 /07/23 /boss- liog_good- old -boys-
decide - hoodwink - uncle -sam -road- contracts /, Attachment 14; Michael Gordon and Steve Harrison, Boggs Paving
CEO pleads guilty in minority contractor fraud (Aug. 28, 2014), CHARLOTTE OBSERVER, available at
htt : / /www.charlotteobserver .corn /2014/08/28 /5134655 /bo s- avin -ceo leads- uiIt .htin19.VADmwOIOUnU,
Attachment 15; Heather Smith, Drew Boggs pleads guilty to two felonies (Aug. 28, 2014), ENQUIRER JOURNAL,
available at http: / /www.enauireriournal.com /news /local /x1788471605 /Drew- Boggs - pleads - Guilty -to- two - felonies,
Attachment 16.
193 Id.; see also excerpt from Monroe Bypass contract, Attachment 253 to SELL Jan. 6, 2014 Comments.
194 See, e.g., Steve Harrison, NC DOT chair won't discuss Boggs Paving contract (Oct. 7, 2014), CHARLOTTE
OBSERVER, available at http: / /www.charlotteobserver .com /2014/10/07 /5226728/no- dot - chair - wont- discuss-
bogas html #.VDUyn010wnU, Attachment 17.
IN

quality. Second, NCDOT failed to account for those impacts to downstream water quality that
do, nonetheless, appear in its flawed analysis.
A. NCDOT's Flawed Indirect and Cumulative Impacts Analysis Minimized the
Project's Impacts to Downstream Water Quality
1. Flawed "No- Build" Scenario
Elsewhere herein we have demonstrated that NCDOT's growth projections, based on
disproven traffic forecasts and outdated socio - economic data for the Study Area, are wildly
inflated to justify the avowed purpose and need for the new Bypass. Now we turn to similar
deficiencies in the "No- Build" scenario NCDOT constructed to support its analysis of indirect
and cumulative impacts ( "ICE ").
In its May 3, 2012 ruling rejecting NCDOT's NEPA analysis, the United States Court of
Appeals for the Fourth Circuit explained that NCDOT had misled the public with regard to key
assumptions underlying the analysis of ICE. N.C. Wildlife Fed'n v. NCDOT, 677 F.3d 596,
604 (4th Cir. 2012). In response, NCDOT has now laid out in detail the true nature of those
assumptions. By laying bare the full process, NCDOT has revealed that its ICE analysis is in
fact nonsensical. The analysis, which purportedly considered the impact of transportation
infrastructure on growth and development, was in fact based on data that completely ignored the
impact of transportation infrastructure.
As explained below, transportation infrastructure affects growth. If traffic congestion in
an area increases, it attracts fewer new residents and new businesses, and growth slows. Thus it
is just as important to know how the Study Area would grow without the new road (the "No-
Build" scenario) as it is to determine how much it will grow with the road. By focusing only on
the adequacy of the `Build" scenario, NCDOT completely neglected a key component of the
analysis.
In the NEPA analysis, NCDOT spent considerable time explaining that while the data
used to create a "No- Build" scenario assumed that the Bypass had been built, that assumption
was not important because transportation infrastructure essentially had almost no impact on the
forecasts of future growth used in the ICE analysis. For example, the DSFEIS goes to great
lengths to explain how transportation infrastructure was not factored in at each step of the
analysis. The document explains that Dr. Hammer's "top down" projections were not sensitive
to factors such as "large scale transportation projects. "19 Similarly, the document explains that
Paul Smith's "bottom up" allocation of growth was also barely influenced by transportation
infrastructure. The one factor that might have included transportation infrastructure, "travel time
to employment," was found not to have figured into the analysis to any great extent. 196 In sum,
the DSFEIS reports that "the methodology used does not incorporate the full accessibility
impacts of major roadway projects.s197
19' DSFEIS at E1- 59— E1 -64.
`' Id. at E1- 64-- EI -69.
197 Id. at E 1 -79.
31

This failure is staggering considering that in its previous E[S for this project, NCDOT
repeatedly explained how important transportation infrastructure is to influencing levels and
distribution of development. In the 2009 Qualitative ICE study, for example, NCDOT explained
time after time that improving travel time to major employment centers through infrastructure
investments would be one of the primary factors in determining where growth would go. 198
Similarly, outside this particular NEPA analysis, NCDOT and State officials regularly recognize
that infrastructure drives growth.
Most recently, NCDOT staff and Governor McCrory have spent the last several months
emphasizing the important role transportation plays in promoting development in their statewide
efforts to roll out the Governor's 25 -Year Vision Plan.199 For example, Secretary Tata explained
that "[a] key element of the governor's 25 -year vision is recognition that transportation systems
can stimulate the economy by building infrastructure to attract business and create or provide
access to jobs.i200 He emphasized that this is especially true of infrastructure projects that "help
connect rural areas to jobs, healthcare, and education centers. "201 Governor McCrory has
highlighted that he expects enhancing flow through the U.S. 74 Corridor statewide will be an
important part of this effort. 202 NCDOT is also relying on the base assumption that
transportation infrastructure causes growth in its recent project prioritization process; in fact, the
assumption is the foundation for the model used to calculate each project's score. 203
198 See, e.g., Qualitative ICE analysis (2009) at 6 -7.
199 Jenny Callison, McCrory, Tata unveil 'Road map' for state's transportation fixture (Sept. 17, 2014), GREATER
WILMINGTON BUSINESS JOURNAL, available at
http:llwww. wilmingtonbiz. com /goveminent/2014 /09 /17 /mccrory tata unveil %C3 %83 %C2 %oA2 %C3 %A2 %E2 %8
0 %9A %C2 %AC %C3 %8B %C5 %93road map %C3 %83 %C2 %A2 %C3 %vA2 %oE2 %80 %9A %C2 %AC %C3 %A2 %F2
%80 %9E %C2 %A2 for state% C3% 83% C2% A2% C3% A2% E2 %80 %9A %C2 %AC %C3 %A2 %E2 %80 %9E %C2%
A2s transportation future /12328, Attachment 18; Bruce Siceloff, Tata fleshes out McCrory proposal for $IB in NC
transportation bonds (Sept. 20, 2014), NEWS & OBSERVER, available at
http://www newsobserver,com/20 1 4/0 9/20/4 1 67449/tata- fleshes- out -mccro - ro osal html ?rh =1, Attachment 19;
Steve Harrison, Gov. Pat McCrory's road plan could advance low - scaring projects (Sept. 22, 2014), CHARLOTTE
OBSERVER, available at http:l/www.charlotteobserver.com/2014/09/22/5193183/gov- pat- mccrorys- road -plan-
could.html #.VCWaK0I OXTt, Attachment 20; Jim E.ongworth, Governor McCrory speaks out on Triad Today (Oct.
29, 2014), YES WEEKLY, available at htt :II esweek] .comlarticle- 18976- overnor -mccro -s eaks- out -on- triad-
today.html, Attachment 21; Jackie Bridges, US 74 Bypass construction 'generally on schedule' (Oct. 3, 2014),
SHELBY STAR, available at http: / /www. she lbystar.com /news /local /us -74- bypass- construction - generally
schedule- 1.381994, Attachment 22; Office of the Governor, Governor McCrory to Northeast NC Tomorrow to Talk
Transportation, Jobs and Coast Guard (Oct. 30, 2014), available at
http://www. governor, state. nc.uslnewsrooml ress- releases /201410301 overnor- mccror - northeast -nc- tomorrow -talk-
transportation jobs -and, Attachment 23.
200 Bruce Siceloff, Tata fleshes out McCrory proposal for $IB in AIC transportation bonds (Sept. 20, 2014), NEWS &
OBSERVER, available at http:// www. newsobserver.com /2014/09/20/4167449/tata- fleshes - out- mccrorv-
proposal html ?rh=1, Attachment 19.
701 Id.
202 Jenny Callison, A1cCrory, Tata unveil 'Road map'for state's transportation fixture (Sept. 17, 2014), GREATER
WILMINGTON BUSINESS JOURNAL, available at
http://www.wilmingtonbiz.com/governiTient/2014/09/17/mccroa tata unveil %C3 %83 %C2 %oA2 %C3 %A2 %oE2 %8
0 %9A %C2 %AC %C3 %8B %C5 %93road ma % C3% 83% C2% vA2 %C3 %A2 %E2 %80 %9A %C2 %AC %C3 %A2 %E2
%80 %9E %C2 %A2 for state% C3% 83% C2 %A2 %C3 %A2 %E2 %80 %9A %C2 %AC %C3 %A2 %oE2 %80 %9E %C2%
A2s transportation future /12328, Attachment 18.
203 NCDOT, How NCDOT uses the TREDIS to Calculate Economic Competitiveness in the Strategic
32

In its review of NCDOT's new explanation of the methodology in the NEPA documents,
FHWA appeared to recognize that the failure to assess the impact of transportation infrastructure
on development might be a problem for an EIS that deals with a major new highway project.
FHWA noted that the new explanation may "raise the question why this model was used as the
basis for analyzing the impact of a road project intended to move people over a twenty -mile
distance to a job center in Charlotte . "204 NCDOT responded that, because a different
methodology was used for the `Build" scenario, any concern about the "No- Build" scenario is
irrelevant.
This explanation missed the point. The Fourth Circuit has recognized that, to conduct an
adequate assessment of environmental impacts from a proposed project, it is necessary to have
both an accurate "Build" scenario and an accurate "No- Build" scenario. Only by doing so can a
reviewing agency can determine the impact attributable to the project. See, e.g., Friends of Back
Bay v. U.S. Army Corps ofEng'rs, 68I F.3d 581, 588 (4th Cir. 2012) (explaining the importance
of accurate baseline data to impacts analysis).
By focusing only on the adequacy of the "Build" scenario, NCDOT completely neglected
a key component of the analysis. It is just as important to know how the Study Area would grow
without the road as it is to determine how much it will grow with the road. By its own adamant
admission, NCDOT's "No- Build" scenario is based on analysis that does not take into account
the impact of transportation infrastructure. In other words, NCDOT's analysis assumes that
growth will continue on unabated regardless of how congested the infrastructure in the county
would get in the absence of improvements or construction of the Bypass. This assumption is
particularly staggering in light of NCDOT's own (albeit flawed) analysis suggesting that by 2035
U.S. 74 will become so congested in the absence of the Bypass or other improvements that traffic
speeds will be as low as 17 miles per hour, and travel times through the Corridor will be as high
as 70 minute S.206 The idea that just as many people would want to move to Union County if it
were on average a 25- minute commute to Charlotte as they would if the commute were over an
hour defies simple common sense and Iong- observed growth patterns.
Indeed, NCDOT's NEPA documents demonstrate just how absurd and contradictory the
analysis really is. For example, to support the idea that transportation infrastructure has no
impact on growth in Union County, it states that "most of the county is already highly accessible,
with a well - connected roadway network and no major barriers limiting access from Union
County to the major employment centers in Mecklenburg County. "207 This statement apparently
ignores findings elsewhere in the EIS that, without the Bypass or other improvements to U.S. 74,
traffic speeds are expected to decrease to less than 20 miles per hour and two thirds of
intersections are expected to operate at Level of Service E or F.208 The very impetus for building
the Bypass was the expectation that, without significant transportation investments, congestion in
Prioritization Process (Mar. 15, 2013), Attachment 24.
204 FHWA, NCDOT and Atkins, Comment Chart, excel sheet, Attachment 53 to SELL Jan. 6, 2014 Comments.
205 Id.
20' DEIS (2009) at 1 -18 (table 1 -5).
201 See, e.g., DSFEIS at BI -84.
208 FEIS (2010) at 1. 1.2 and 1. 1.8 (referenced by DSFEIS at 2 -13).
33

the Corridor will become a "major barrier limiting access from Union County to the major
employment centers in Mecklenburg county. "209
The opinions of officials and planning staff in Union County similarly belie NCDOT's
assumption that future levels of congestion would not constrain levels of growth. Local
planners, interviewed as part of the most recent NEPA analysis make this clear. For example,
Union County planners state that in the absence of the Bypass, growth will be extremely limited
in the eastern part of the county. 210 Similarly, planners from Marshville state that congestion on
U.S. 74 currently is an impediment to development .21 1 Likewise, the past president of the Union
County Chamber of Commerce stated that Union County often loses development projects "just
because of travel time on U.S. 74. "212 Union County's new Comprehensive Plan and Multi
Modal Transportation Plan also both recognize that the shift of through- traffic to the Bypass
integral to the County's expected new growth.213 If current congestion on U.S. 74 is constraining
development, it seems impossible that it would not be further constrained given NCDOT's future
projections.
Courts have recognized the absurdity of an analysis that fails to consider the impact on
infrastructure in absence of new highway investments. For example, in Highway J Citizens
Group v. U.S. DOT, a federal district court rejected a State Department of Transportation's
argument that development in two Wisconsin counties would continue to occur at its previous
pace, regardless of whether additional infrastructure was added. 656 F. Supp. 2d 868, 887 -88
(E.D. Wis. 2009). Refusing to accept this counterintuitive and highly unlikely reasoning, the
court stated, "One need not be an expert to reasonably suspect that if Highway 164 were not
expanded development in the region would be constricted. Presumably, congestion on a two -
lane Highway 164 would discourage development in the area, whereas expansion of the highway
to four lanes would cause development to continue unabated." Id. at 878.
If U.S. 74 traffic were free-flowing and expected to continue in that state, it might be
reasonable for NCDOT to exclude consideration of the impact of infrastructure in its No -Build
analysis. But it is not, and NCDOT itself predicts that, without additional investments, U.S. 74
will get increasingly congested to the extent that commutes into Charlotte could take well over
an hour. Given these predictions it seems highly unlikely that growth would continue to occur at
the same rate it has in the past, and much more likely that growth would be limited by much
longer travel times to the major employment center. Certainly, NCDOT has not presented any
credible evidence to suggest why such congestion would not, in fact, be relevant.
zo9 DSFEIS at E1 -84.
z1 ° Id. at ICE Appendix A, regarding Union County.
211 Id. at ICE Appendix A, regarding Marshville.
212 E -mail blast from Sharon Rosch6, Union County Chamber of Commerce, RE: Monroe Bypass — Let's }vork to
get this project moving! (Mar. 5, 2013), Attachment 54 to SELC Jan. 6, 2014 Comments.
213 See, e.g., LandDesign, Union County Comprehensive Plan, at 19 (Jul. 2014), prepared for Union County,
available at littp://www.co.union nc.us /Portals /O /Planninag/ plans/ UnionCountyFinalDraftReport9- 22.pdf,
Attachment 25; see also Stantec, Union County Multimodal Transportation Plan (Oct. 2014) , prepared for Union
County, available at littp: / /www.co. union. nc. us / Portals /O/ Planning//pl ans/ UnionCountyTransportationPlanDraftlO-
14- 14.pdf, Attachment 26.
34

Outdated Socio- Economic Forecasts
NCDOT's ICE analysis is also problematic because it relies on forecasts of future socio-
economic growth that have been shown to be vastly overstated. Union County is no longer the
fastest growing county in the state — it grew 2.2 %214 or Iess215 between 2010 and 2012. Other
forecasts of growth have accounted for this shift — the Traffic and Revenue Study adjusted its
forecasts of growth downward (although not sufficiently), acknowledging that growth had
slowed considerably due to the recession. 216 FHWA, taking note of these data, asked if perhaps
NCDOT should also adjust the socio- economic forecasts downward in light of the recession. 217
NCDOT admitted that it "would be more accurate to so. "218 Nonetheless, NCDOT decided not
to make any adjustment based on the unsupported rationale that both "No- Build" and "Build"
forecasts would be affected equally.
NCDOT's decision entirely overlooks the purpose of such an analysis. First, as
explained above, the alternatives analysis would be significantly affected by slower rates of
socio- economic growth post - recession. One of NCDOT's primary reasons for eliminating a
variety of alternatives is that traffic growth is expected to be so significant that only a new -
location Bypass will satisfy future needs. Second, an accurate impacts analysis is necessary to
present a clear and accurate picture of what the future will look like with and without the Bypass.
By continuing to use growth forecasts that all admit are overstated, NCDOT fails to present
accurately the reasonable analysis of impacts that NCDWR must consider in evaluating this
permit application.
NCDOT's refusal to address these significant changes is made more egregious by the fact
that, during the agency's NEPA review, experts were working on, and were close to finalizing,
updated estimates of growth for Union County that are significantly lower than those NCDOT
used in its NEPA review.219 The group of Charlotte -area planning organizations, the Charlotte
Regional Alliance for Transportation ( "CRAFT "), commissioned Dr. Stephen Appold to create
new updated socio- economic forecasts for the region to replace those currently employed by
NCDOT. These new projections show growth occurring at a significantly lower rate than those
used in the NEPA analysis. Indeed, the new projections suggest that growth previously
anticipated to occur by 2030 will not occur, if at all, until 2040, a full decade later.220 NCDOT
has attempted to justify its failure to use these forecasts by explaining that the forecasts had not
yet been fully finalized when it was completing the NEPA analysis.
214 E -mail from Ken Gilland, Baker Corporation, to Scudder Wagg et. al., Baker Corporation (Feb. 14, 2013), RE:
DRAFT USACE Presentation (Population estimates), Attachment 22 to SELC Jan. 6, 2014 Comments.
2'5 Dr. Hartgen calculates the growth rate as 1.7% in his report. Hartgen Report 2013 at 6, Attachment 1 to SELC
Jan. 6, 2014 Comments.
116 ICE Appendix K, at 29 -30.
"' FHWA, NCDOT and Atkins, Comment Chart, excel sheet, at Question 60, Attachment 53 to SELC Jan. 6, 2014
Comments.
21$ Id at response to Question 60.
"' See DSFEIS at C1 -7 (describing Dr. Appold's work as "analyzing the effects of the recession, which followed the
very high growth period beforehand ").
211 Id. at A 1 -74.
35

It is absurd to use significantly incorrect forecasts knowingly just because the available
and more accurate forecasts are not yet final, particularly when the accurate forecasts suggest a
very different conclusion. Yet NCDOT has relied on data that are well understood to be entirely
incorrect for the heart of its analysis. Even more, as NCDOT has recognized, the updated socio-
economic data were finalized and available in April 2014, well before NCDOT submitted this
permit application. 221 Even if NCDOT chooses to rely on inaccurate and outdated data in the
NEPA analysis, NCDWR cannot issue a Clean Water Certification until NCDOT has evaluated
the impacts based on the appropriate socio- economic data.
3. Location of Growth
NCDOT's forecasts of future growth may also be greatly overstated because they
wrongly equate growth in Union County overall with growth in the Study Area. The DSFEIS
failed entirely to acknowledge that there are significant differences between the make -up of the
county as a whole and the make -up of the Study Area. For example, the DSFEIS asserts that one
reason the Study Area will continue to see strong growth in absence of the Bypass is that median
household income is much higher than in other counties in the Charlotte area. 22 But within
Union County, median income is much higher on the western edge of the county, in areas outside
of the Study Area. Dr. Hartgen made note of this error in his critique, explaining that much of
the growth in Union County has been in places not served by the Bypass'23
Thus, again NCDOT's impacts analysis ignores the growth that construction of the
Bypass may induce in the Study Area in particular. NCDWR must require NCDOT to analyze
the impacts that may be induced in the Study Area itself.
4. Redistributed growth
In addition to NCDOT's flawed analysis of induced growth, the agency has also failed to
examine properly how growth would be redistributed if the Bypass were constructed. NCDOT
states that it employed a "conservative approach" to its growth analysis because it did not
"reallocate growth" to locations further east, despite the growth to be expected due to increased
accessibility occasioned by the Bypass . 224 While this may be a conservative approach overall,
and is certainly conservative in terms of the Goose Creek watershed, the approach likely vastly
underestimates impacts in the Study Area.
Although there is some discussion of this likely phenomenon in the ICE analysis,225 it is
incomplete. The ICE analysis looks at how growth may be redistributed based on increased
levels of accessibility. A map shows that, because of improved accessibility provided by the
Bypass, growth is expected to shift to the east, towards Wingate and Marshville.226 The travel -
time savings used for this accessibility analysis, however, range from 0 to10 minutes. While this
221 FHWA, Comment and Response Grid for SELL Letter dated June 9, 2014, at 8 (Oct. 30, 2014), Attachment 1.
222 Id. at C1 -31.
223 Hartgen Report 2013, at lb, Attachment 1 to SELC Jan. b, 2014 Comments.
224 DSFEIS at EI -7.
22s DSFEIS at C2 -203.
"' DSFFIS at C2 -244 (Map 14).
36

may be in line with what NCDOT expects to see at opening year, other data in the NEPA
analysis suggest that travel time savings would be significantly higher by 2035. No explanation
is given as to why these greater travel time savings are not used to analyze the redistribution of
growth.
Other than this exceedingly rough analysis, NCDOT has presented no description of what
redistributed growth might look like, and how communities that were previously seeing strong
growth rates may feel the impact of the Bypass. For example, there is no consideration given to
how Stallin s or Indian Trail may be affected as land in Marshville and Wingate becomes more
desirable. 22f A previous draft of the DSFEIS included a reference to growth migrating away
from Downtown Monroe. 228 Though NCDOT deleted this projection from the final draft of the
DSFEIS after the Conservation Groups brought attention to it in public meetings,229 the NCDWR
must require NCDOT to analyze this expected change in growth patterns fully and publicly.
Growth shifting east, and away from current population centers and downtowns, will necessarily
result in more impervious surfaces in what were formerly less - developed areas.
Both the Environmental Protection Agency and the North Carolina Division of Water
Resources have made clear that a detailed analysis of redistributed growth is important for fully
disclosing environmental effects such as impacts to water quality and endangered species.230
Without an accurate analysis of the development likely to result from the Bypass, there can be no
thorough analysis of the increase in impervious surfaces and associated impacts to water quality.
Accordingly, NCDWR must require NCDOT to clearly and transparently examine and explain
these impacts before it can evaluate the permit application.
5. Conflicting Growth Projections
As detailed in our various comments to NCDOT on the NEPA analysis, outside of the
NEPA process local stakeholders and state -level officials have widely claimed that the Bypass
will drive dramatic new economic development in Union County and across the state. 231
NCDOT is regularly confronted with the fact that knowledgeable stakeholders throughout Union
County and the state strongly believe that constructing the Monroe Bypass will result in dramatic
economic development, yet it has failed to adjust the assumptions underlying its analysis or
otherwise to reconcile publicly the disparity between this widespread understanding of the
Bypass's likely impacts with its own projections of negligible growth. Worse, NCDOT itself
regularly espouses contradictory positions.
2u DSFEiS at E1 -87.
228 Compare NCDOT, Appendix A - Comments Since the Final EIS, Draft (June 2013), at 3, Attachment 55 to SELC
Jan. 6, 2014 Comments, with DSFFTS at Appendix A.
229 See, e.g., SELC, Presentation to Unionville and Fairview Town Councils (Oct. 1, 2013), at slide 18, Attachment
56 to SELC Jan. 6, 2014 Comments.
230 E -mail from Chris Militscher, EPA, to Christy Shumate, NCDOT, RE: Monroe ConnectorBypass (R- 3329/R-
2559) Update and Documentation (Feb. 28, 2013), Attachment 57 to SELC Jan. 6, 2014 Comments; DSFEIS at C1-
95 (Memo from Alan Johnson, DWQ).
231 See, e.g., SELC Jan. 6, 2014 Comments, at 41 -47.
37

a. Local voices
This understanding of the Monroe Bypass continues to pervade Union County. For
example, as noted above, at least eight communities and organizations -- including the
MUMPO, the City of Monroe, the Union County Board of Commissioners, the Indian Trail
Town Council, the Town of Stallings, the Town of Marshville, and the Town of Waxhaw —
have all passed versions of a resolution supporting construction of the Bypass in part because
"the Monroe Bypass will stimulate economic and commercial development . „232
In the DSFEIS, the transportation agencies continue to dismiss the extensive and detailed
demonstration of local stakeholders' widespread belief presented in our November 2012
comment letter , 233 stating only that the NCDOT analysis is more correct because "numerous
local planners and others were interviewed and current adopted planning documents were
reviewed” and that the DSFEIS "presents data and analysis. "234 A review of this "data and
analysis," however, confirms that local planners (1) have noticed a significant slowing of growth
since the original EIS and (2) expect the Bypass to affect their communities. Planners from the
Charlotte Mecklenburg Planning Board '235 the City of Monroe,236 the Town of StallingS,237 and
Union County 238 all noted that growth projections have slowed since the original analysis of the
Bypass was performed.
Likewise, many local planning officials interviewed in the NEPA analysis appear to
disagree with NCDOT's finding that the Bypass will have minimal impact. Planners from
Fairview stated that they expect to see an impact, but are unsure what it will be. 239 Planners from
Marshville stated expressly that "future growth in Marshville [is] dependent on implementation
of the Bypass" and noted that congestion on U.S. 74 currently is an impediment to
development.240 Those planners also maintained that the town would increase utility capacity if
the Bypass is constructed. Union County planners stated that in absence of the Bypass, growth
will be extremely limited in the eastern part of the county. 241 The same planners expect growth
232 See, e.g., Mecklenburg -Union Metropolitan Planning Organization, Resohrtion to Support Prompt Action for the
Construction of the Monroe Bypass (Mar. 20, 2013), Attachment 13 to SELC Jan. 6, 2014 Comments; Union
County Board of Commissioners, Resolution to Support the Development of an Alliance of Local Government and
Business Leaders to Review and Promote Improvements to a South Economic Development Corridor from I -26 to
Wilmington Along the Existing Highway 74 Corridor (2013), Attachment 92 to SELC Jan, 6, 2014 Comments;
Town of Indian Trail, Resolution (Apr. 9, 2013), Attachment 5 to SELC Jan. 6, 2014 Comments; Town of Stallings,
Resohrtion Opposing the Monroe Bypass Project (Mar. 24, 2014), Attachment 9 to SELC Apr. 8, 2014 Comments.
Town of Marshville, Resohrtion in Support of the Marshville Town Council in Support of the Monroe Connector -
Bopass & Request to Expedite Project Construction (Mar. 4, 2013), Attachment 6 to SELC June 9, 2014 Comments.
2 3 SELC Nov. 30, 2012 Comments, at 3 -I4.
234 See, e.g., DSFEIS at Al -65, Comment No. 2 & 3.
235 DSFEIS, ICE Appendix A, regarding Charlotte- Mecklenburg Planning and Development.
236 Id. ICE Appendix A, regarding City of Monroe.
237 Id ICE Appendix A, regarding Town of Stallings.
21 Id. ICE Appendix A, regarding Union County.
239 Id. ICE Appendix A, regarding Town of Fairview.
240 Id. ICE Appendix A, regarding Town of Marshville.
241 Id. ICE Appendix A.
38

to slow throughout Union County if the Bypass is not constructed . 242 Chris Plate, the Executive
Director of Monroe Union County Economic Development ( "MUCED "), reported similar
expectations, 243 These surveys of local planners, were simply dumped in to NCDOT's NEPA
analysis with no analysis of conclusions drawn. 244 NCDOT has given no indication as to how
the opinions of the planners were incorporated into the NEPA analysis, nor any explanation as to
why many of the opinions of the local planners sit in direct opposition with NCDOT's own
assumptions and methodologies.
Outside of the NEPA process, groups with specialized knowledge about Union County's
potential for economic growth have also continued to tout the Bypass as a likely driver of
economic growth. For example, the recently published Union County Comprehensive Plan, the
Bypass is described as "creat[ing] the potential to open up new areas for business and industrial
development and significantly enhance access to Charlotte and beyond . 245 Similarly, the
MUCED group mentioned above has recognized that the Bypass is key to the planned economic
development efforts detailed in its 2013 -2015 workplan.24b And publicly, the MUCED has
dedicated itself to continuing to support Bypass construction, recognizing the project would
"bolster the county's attractiveness for logistics work. "247 The MUCED also uses the Bypass on
its website to attract new business to the area. 248
Former President of the Union County Chamber of Commerce, Sharon Roschd, was also
convinced that the Bypass would bring dramatic growth and development to Union County.
When asked about the studies conducted by NCDOT finding the Bypass would result in
negligible economic growth, Roschd "maintained that the bypass would bring new businesses
and industry to Union County," explaining that "[y]ou can do all the studies in the world but the
reality is that I've got towns in Union County that have purchased water opportunities and sewer
and are ready to build as soon as this thing goes over.i2 s Rosche, as president of the Union
County Chamber, was arguably one of the individuals most tapped into the details of county's
economic potential and most knowledgeable about planned growth. She called the project
"vital" to Union County, 250 and noted that the region is experiencing growth in anticipation of
242 Id. ICE Appendix A.
243 Id. ICE Appendix A, regarding MUCED.
244 Id. ICE Appendix A.
245 Land Design, Union County Comprehensive Plan, at 11 (Jul. 2014), prepared for Union County, available at
htto: / /www.co.union nc.us/ Portal s /0 /Planning/ plans/ UnionCountyp 'inalDrafiRet)ort9- 22.pdf Attachment 25.
246 Monroe -Union County Economic Development, Work Plan 2013 -15 (Jul. 2013), Attachment 58 to SELC Jan. 6,
2014 Comments.
247 Adam Bell, Monroe -Union County Economic Development ready far action, ROCK HILL HERALD ONLINE (Aug.
8, 2013), Attachment 59 to SELC Jan. 6, 2014 Comments,
248 Monroe Union County Economic Development, Highway Access (2013), Attachment 60 to SELC Jan. 6, 2014
Comments.
149 Heather Smith, Chamber resolution draws fire from Bypass opponent, THE ENQUIRER JOURNAL (Mar. 6, 2013),
Attachment 61 to SELC Jan. 6, 2014 Comments.
2"' Adam Bell, Despite handles, Union County Chamber pushes bypass plan, CHARLOTTE OBSERVER (Apr. 16,
2013), Attachment 62 to SELC Jan. 6, 2014 Comments; Adam Bell, Chamber sticks by bypass plan, CHARLOTTE
OBSERVER (Apr. 17, 2013), Attachment 63 to SELC Jan, 6, 2014 Comments.
39

the Bypass, stating that developers have purchased land along the bypass footprint, specifically
in anticipation of a higher demand.251
Indeed, Union County has begun planning for infrastructure to support the growth
occasioned by the Bypass. 2S2 For example, Union County's Comprehensive Water and
Wastewater Master Plan, recognizing the Bypass as a "growth driver" and a "[d]evelopment
initiative," details plans to extend water and sewer service to the areas at the By ass's proposed
interchanges as well as residential development along the major feeder routes.25 The Plan
projects that "[a]s a result of the development anticipated with the Monroe Bypass service area
and in general on the eastside, the projected County wastewater flows going to the Monroe
[wastewater treatment plant] will double over the planning period. ,254
In recognition of this expanded infrastructure need, the FY 2014 -2019 Union County
Capital Improvement Program allocates over $1 million to increase wastewater capacity
specifically to address "the need for an additional 3.0 MGD of capacity from the City of Monroe
as a result of the Development anticipated with the Monroe Bypass. "255 The plan also allocates
over $5 million to expand sewer services in the Lake Twitty Sewershed, justified by "the need
for providing a new Sewer Service area for new Commercial development expected in the
immediate vicinity of the Monroe Bypass. "256 Yet these significant recognitions of impending
growth and associated pressure on water resources are not addressed in the NEPA analysis or
permit application.2s7
Elsewhere in the study area, local elected officials also see the Bypass as a driver of
growth in Union County, and not just in the eastern part of the county. For example, Indian Trail
Mayor Michael Alvarez has stated that constructing the road will "promote business
development in Indian Trail and throughout the county .,,258 And the new Indian Trail
comprehensive plan estimates that Indian Trail's population will greatly increase by 2030, from
21' Heather Smith, Chamber resolution draws fire from Bypass opponent, THE ENQUIRER JOURNAL (Mar. 6, 2013),
available at http://www.enquirermo.urnal.com/news/local/x]942451769/Chamber-resolution-draws-fire-froni-
By pass- opponent, Attachment 61 to SELC Jan. 6, 2014 Comments.
252 Union County Chamber of Commerce, Union County NOW: Comprehensive Guide to our Community, at 24
(2012 - 2013), Attachment 64 to SELC Jan. 6, 2014 Comments at 54; see also
http: / /www.co.union nc.us/ Portal s /O /Planning_/ plans/ UnionCountvFina ]DraftRe[)ort9- 22.pdf.
251 Black & Veatch, Comprehensive Water and Wastewater Master Plan, prepared for Union County, NC, at ES -4,
ES -8, 4, 19, 3 -9, 5 -3 (Dec. 2011), Attachment 65 to SELC Jan. 6, 2014 Comments,
2sa Id at ES -8,
255 Union County, Proposed FY2014 -2019 Union County Capital Improvement Program, at 35, available at
http://www.co.union ne.us /Portals /O /Finance /Pro posed FY2014toFY2019UCCIP %2004032013 df, Attachment
66 to SELC Jan. 6, 2014 Comments; adopted at May 6, 2013 Union County Board of Commissioners Meeting,
minutes, at 54, Attachment 67 to SELC Jan. 6, 2014 Comments.
256 Id. at 45.
211 See FSFEIS at A2 -203 (ignoring, SELC comments on this topic).
251 Mayor Michael L. Alvarez, Indian Trail, Facebook post (Oct. 9, 2013), Attachment 68 to SELC Jan. 6, 2014
Comments.
40

approximately 35,000 residents to 60- 50,000 residents, in a large part due to "the changes
brought by the planned Monroe Bypass. "254
In fact, Indian Trail officials so strongly believe in the Bypass's potential to drive growth
in Union County that in October 2013, the Indian Trail Town Council meeting hosted
presentations on the Bypass by NCDOT as well as three different pro - growth groups: MUCED,
Union County Chamber of Commerce, and the Indian Trail Business Association.260 NCDOT
staff sat by as Pat Kahle, the current president of the Union County Chamber of Commerce,
discussed "gridlock on Highway 74" and the significant commuting times in Union County as
reasons why the Chamber supported the Bypass, noting that building the Bypass can enhance
business in Union County .2b1 Both Chris Plate of the MUCED and Indian Trail Business
Association echoed these sentiments, focusing on the importance of the Bypass to expanding the
local business community . 262
Former Indian Trail Councilwoman Darlene Luther echoed these beliefs, stating:
"Everybody supports it for the development and economic vitality it brings.... And it will bring
economic development. There's no way that it can't.... We're getting a bypass that can bring
economic development and it doesn't cost the town a penny. "263 Though several NCDOT staff
were present and presented other information about the Bypass at the meeting, none made any
attempt to publicly address or explore these beliefs either at the meeting or in the NEPA analysis
and permit application. 264
We appreciate that NCDOT "does not have the legal authority to control the beliefs,
statements, or resolutions developed by the public, organizations, or local government. "265 Still,
when called upon to address misconceptions the Department has regularly failed to do so. This
is particularly problematic, as NCDOT has made a point to publicly address such misconceptions
with other projects when such information would help to move its project forward . 266
b. Contradictory Positions at the State Level
259 Heather Smith, Indian Trail plans far 80,000 by 2030, ENQUIRER JOURNAL (Aug. 29, 2013), Attachment 69 to
SELC Jan. 6, 2014 Comments; see also Indian Trail, Draft Comprehensive Plan Update, Chapter 4: Market and
Economic Analysis, Attachment 70 to SELC Jan. 6, 2014 Comments; Indian Trail, Draft Comprehensive Plan
Update, Chapter 6: Transportation, Attachment 71 to SELC Jan. 6, 2014 Comments.
260 Indian Trail Town Council, Minutes of Town Council (Oct. 8, 2013), Attachment 72 to SELC Jan. 6, 2014
Comments.
261 Indian Trail Town Council, Minutes of Town Council (Oct. 22, 2013), Attachment 73 to SELC Jan. 6, 2014
Comments; also see Payton Guion, Monroe Bypass supporters make presentation at Indian Trail meeting;
opposition not invited, MECKLENBURG TIMES (Oct. 24, 2013), Attachment 74 to SELC Jan. 6, 2014 Comments.
262 Indian Trail Town Council, Oct. 22, 2013 Agenda (Oct. 22, 2013), Attachment 73 to SELC Jan. 6, 2014
Comments.
263 Monroe, Indian Trail snub bypass opponents, ENQUIRER JOURNAL (Oct. 12, 2013), Attachment 75 to SELC Jan.
6, 2014 Comments.
264 Indian Trail Town Council, Minutes of Town Council (Oct. 22, 2013), Attachment 73 to SELC Jan. 6, 2014
Comments.
265 FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014, at 7 (Oct. 30, 2014), Attachment 1.
266 See, e.g., NCDOT, Correction About Personal Information and the I -77 Managed Lanes Project (Jul. 29, 2014),
available at https://apps.ncdot.gov/newst,eleases/details.aspx?r=10144, Attachment 27.
41

Even more, NCDOT has also failed to reconcile its predictions of minimal growth within
the NEPA process with those espoused elsewhere by both the Department of Transportation
itself and other state departments and officials, over whom it certainly does have control. Most
recently, NCDOT and Governor Pat McCrory developed a 25 -Year Vision plan which highlights
that improving "traffic bottlenecks" and improving transportation services in North Carolina's
Central Region is necessary to attract new business and residents to relocate to the area,
highlighting the U.S. 74 Corridor in particular. 267 And as noted, NCDOT's new project
prioritization system relies on the base assumption that transportation infrastructure causes
growth . 269
The State Logistics Task Force Report is a planning document still very much in use at
NCDOT, for example as part of the development of the Governor's recently announced 25 -Year
Vision plan .269 This document highlights the Monroe Bypass as being "important or critical" for
growth and development in Union County and beyond. In response to our raising this
apparent conflict NCDOT's only response is to state in the NEPA analysis that the scale of the
Logistics Task Force Report is different to that of the EIS, and that "the report provides no
specific reasons or supporting data for the key nature of the Monroe Connector/ Bypass . "271 A
similar response was given to the conflicting statements about the importance of the Bypass as
noted in the state's recent "Seven Portals Study .,,272 This sentiment is undermined by NCDOT's
continued reliance on these documents for ongoing planning efforts. Like the State Logistics
Task Force Report,.the Seven Portals study was also used as part of the development of the
Governor's 25 -Year Vision plan. 273
NCDOT's response to other contradictory statements has likewise been unsatisfactory.
For example, in our 2012 comments to NCDOT regarding the NEPA process, we noted that
while NCDOT stated in the initial EIS that the Bypass would result in minimal growth and
development, it painted an entirely different picture in its application for federal TIFIA funds.z7a
The TIFIA application touted the economic growth benefits of the Bypass, specifically
mentioning the proposed Legacy Park. NCDOT's response to our concern about these
contradictory statements was simply to state that because the project was ultimately unsuccessful
267 Gov. McCrory's 25 Year Vision For North Carolina: Mapping Our Future, at 22 (Sept. 2014), availahle at
http: /lwww ncdot .eov /ncvision25 /ncvision25.pdf, Attachment 28; see also Section I1.A.1, above.
26s NCDOT, How NCDOT uses the TREDIS to Calculate Economic Competitiveness in the Strategic
Prioritization Process (Mar. 15, 2013), Attachment 24.
'69 See, e.g., NCDOT presentation before NC Board of Transportation, Economic Development &
Intergovernmental Relations Committee, Implementing Vision for Strategic Transportation Investments: a 25 year
infrastructure plan (Nov. 6 -7, 2013), at slides 8 -9, Attachment 76 to SELC Jan. 6, 2014 Comments; NC Board of
Transportation Economic Development & Intergovernmental Relations Committee, Minutes of Oct. 2, 2013
Meeting, Attachment 77 to SELC Jan. 6, 2014 Comments; Handout from NC Board of Transportation Economic
Development & Intergovermmental Relations Committee Oct. 2, 2013 Meeting, summary of recent statewide
planning documents, prepared by NCDOT staff, Attachment 78 to SELC Jan. 6, 2014 Comments.
70 SELC Nov. 30, 2012 Comments, at 5.
zn DSFEIS at Al -67.
171 Id at Al -67.
17' NC Board of Transportation Economic Development & Intergovernmental Relations Committee, Minutes of
Dec. 4, 2013 Meeting, Attachment 79 to SELC Jan. 6, 2014 Comments.
271 SELC Nov. 30, 2012 Comments, at 14.
42

in securing transportation funding it did not matter that two opposing assessments of the growth
potential were presented in the different federal documents . 275
Even while the NEPA analysis was ongoing, NCDOT persisted in publicly presenting
contradictory forecasts of the growth attributable to the Bypass. As noted above, Secretary Tata
has publicly touted the Bypass as necessary to bring economic development to Union County.
And on numerous occasions the Chair of the Board of Transportation, Ned Curran, has explained
that the Bypass is important not just in bringing economic development to Union County, but
also to Anson County and several counties beyond. NCDOT's Division 10 Engineer, Louis
Mitchell, has made similar claims. As such, even NCDOT does not fully agree with the impacts
analysis underlying this permit application. NCDWR must require clarity on this issue, as it
cannot rely on the current analysis based on such a strongly disputed assumption.
B. Cumulative Impacts
North Carolina law does not permit NCDWR to issue a § 401 certification for an activity
which results in "cumulative impacts, based upon past or reasonably anticipated future impacts,
that cause or will cause a violation of downstream water quality standards." 15A N.C. Admin.
Code 2H.0506(b)(4), 2H.0506(c)(4). NCDOT's NEPA analysis included almost no discussion
of cumulative impacts other than vague generalizations lumped into the ICE analysis, nor was
any additional analysis included in the permit application. Below we have listed several impacts
associated with the Bypass that NCDWR must require NCDOT to address before it can comply
with its duty to fully evaluate the project's secondary effects to water resources.
1. HOT Lanes: 485 and U.S. 74
For example, NCDOT is currently planning a system of High Occupancy Toll ( "HOT ")
lanes in the Charlotte metro region. Substantial planning has taken place for the projects and
they are funded as part of CRTPO's fiscally constrained MTP, and a portion of this project is on
track to be completed this December .276 The system would include sections of 1 -485, and the
stretch of U.S. 741 Independence Boulevard inside the beltway. In a May 5, 2012 presentation
NCDOT explained that the Independence Boulevard HOT lanes would connect with the Monroe
Bypass .277 The HOT lanes on I -485 would also extend around to Independence Boulevard,
completing the system. Plans have continued to develop since that time with focus groups,
design, and traffic and revenue studies for the protects 278 NCDOT has stated that this project is
funded for construction within the next ten years. 79
275 DSFEIS, Appendix A at Al -73; FSFEIS at A2 -282.
276 Ryan Pitkin, Netiv Lanes on 1 -485 set to open by end ofyear (Nov. 17, 2014), SOUTH CHARLOTTE WEEKLY,
available at http : / /www.thecharlotteweekly.com /news /2014/1 l /new- lanes -on -i -485- set -to- open -by- end -of yearl,
Attachment 29; see also Tony Burbeck, Toll lanes on Independence Boulevard? (Nov. 17, 2014), WCNC, available
at htt : / /www.wcne.com/stor /news /traffc /2014 /11117 /toll- lanes- on -inde endence- boulevard /19187483/,
Attachment 30.
277 Charlotte Fast Lanes Sturdy: Phase III Results Summary, Attachment 96 to SELC Jan. 6, 2014 Comments.
276 Presentation to MUMPO Technical Coordinating Committee, Charlotte Region Fast Lanes Study: Phase III
(Feb. 7, 2013), Attachment 97 to SELC Jan. 6, 2014 Comments.
279 See NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
littps: / /connect ncdot.eov/ projects /planning Pages /ResourcesMPO- RPO.aspx, Attachment 4.
43

While we recognize that NCDOT has analyzed the- I -485 widening to some extent,
recently available data demonstrates this analysis did not encompass the entire funded project.
NCDOT noted that it studied the cumulative impacts of the I -485 HOT lanes project in 2010,28°
but it failed to address how these projects have evolved since that 2010 analysis. 8' For example,
while NCDOT did consider the impacts of widening a 5 -mile stretch of I -485 from NC 16
(Providence Road) to U.S. 74,282 the local MPO has expanded this project through several TIP
amendments in 2012.283 The new project, known in the STI ranking process as I -5507, would
widen I -485 for over 16 miles to connect I -77 with U.S. 74 right before the western end of the
Monroe Bypass. As such, the project will without doubt result in secondary impacts exacerbated
by the construction of the Bypass. NCDOT recognizes that the I -485 project has changed
significantly since it was analyzed for the purposes of this study but claims, without any study,
that these modifications does not significantly change how the I -485 project may directly or
indirectly affect land use in the FLUSA. "284 Yet outside the Monroe Bypass NEPA analysis,
NCDOT itself has stated that it expects the 1 -485 project's impacts will be significant: Together
these three components were given a "Long Term Employment" score of over 2,500 additional
jobs, indicating the project is likely to result in substantial development. 285
In addition to the HOT lanes, there are several other road projects which should be
included as part of a proper secondary effects analysis, as detailed above. For example, NCDOT
has never evaluated whether the improved traffic flow occasioned by these projects together may
increase the level of growth or traffic volumes in the Study Area. Accordingly, NCDWR must
require NCDOT to provide a complete analysis of these projects' cumulative effects in order to
satisfy its duty to consider all secondary effects to the aquatic ecosystem.
2. Legacy Park
NCDWR must also consider the cumulative effects of the proposed Legacy Park
development, a proposed 5,000 acre business park which would be directly served by the
Monroe Bypass. While the size of the development has varied since SELC first raised this issue
to NCDOT in 2012,286 we remain concerned that NCDOT has failed to analyze the secondary
impacts that could be expected to result from this project and which would be exacerbated by
construction of the Bypass. We strongly disagree with NCDOT's conclusion that the project is
not reasonably foreseeable. In NEPA documents NCDOT has stated that Legacy Park is "highly
speculative" and "not a reasonably foreseeable development, "287 but recently available NCDOT
280 FSFEIS at A2 -284 (citing Michael Baker Engineering, Indirect and Cumulative Effects (ICE) Quantitative
Analysis (Apr. 2010), Appendix D ( "Other Federal Actions Summary ")).
281 See SELC Jun, 9, 2014 Comments, at 14 -17.
282 Michael Baker Engineering, Indirect and Cumulative ,Effects (ICE) Quantitative analysis (Apr. 2010), Appendix
D ( "Other Federal Actions Summary "), at 6.
z88 MUMPO, MUMPO 2012 -2018 TIP amendments (July 2013), available at littp://www.crtpo.ot,g/PDFs/TIP/2012-
201812012 -2018 TIP Amendments.pdf, Attachment 18 to SELC June 9, 2014 Comments.
184 FSFEIS at Section 2.2, Appendix E2; FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014,
at 25 (Oct. 30, 2014), Attachment 1.
285 Id.
286 See detailed discussion of this project at SELC Nov. 30, 2012 Comments.
287 See; e.g., Michael Baker Engineering, Inc., Monroe Connector /Bypass Indirect and Cumulative
Effects Quantitative Analysis Update, at 61 -62 (Nov. 2013).
44

planning documents demonstrate that outside the NEPA process NCDOT has continued to plan
with development of the site in mind.
For example, the site continues was discussed in detail in both the Governor's Logistics
Task Force and Seven Portals Study reports, which as noted were heavily relied upon by
NCDOT in the recent development the Governor's 25 -Year Vision Plan. 288 NCDOT's recent
NCTN planning efforts have also featured draft maps highlighting the Legacy Park site's
statewide importance. 289 In the draft materials, Legacy Park.was marked as one of only a
handful of "potential logistics sites" available for development statewide,290 guiding NCDOT in
its decision to designate "Corridor U" (U.S. 74 W /U.S. 74 E /Future I -74) as a corridor of
statewide importance as it develops the NCTN.291 In particular, Legacy Park helped contribute
to Corridor U's high economic prosperity score (rated 7 out of 10) in the planning process,
supporting the Corridor's rank in the draft materials as fourth highest rated Strategic
Transportation Corridor ( "STC ") in the state.292 This designation is of particular importance to
the Bypass's NEPA evaluation because the STC program is NCDOT's latest effort to update the
Strategic Highway Corridor ( "SHC ") program, which has long served as a key aspect of the
Bypass's stated purpose and need.293 Similarly, CSX has noted that the Legacy site is one of the
"best" in the Charlotte region. 294
As such, NCDOT cannot simply deny that development at the site is foreseeable, nor can
it assume the abbreviated scale contemplated in the NEPA analysis. 295 Instead, NCDWR must
require NCDOT to analyze the cumulative impacts associated with development of the Legacy
Park site reflecting the full scale of development which it and other decisionmakers statewide
have envisioned and planned around. Even more, NCDOT must account for the Bypass's role in
encouraging this development: As we have documented, planners and statewide officials have
regularly acknowledged that development at the Legacy Park site simply cannot proceed without
construction of the Bypass .296 Even if the full 5000 -acre site may no longer go ahead as
previously planned, there has been recent discussion of a new smaller 200 -300 acre plan for the
site.297 Regardless, NCDOT must provide a thorough analysis of the expected impacts.
288 See, e.g., SELC June 9, 2014 Comments, at 18.
289 NCDOT, North Carolina Transportation Network: Regional Meetings, at slide 24 (May 2014), Attachment 22 to
SELC June 9, 2014 Comments.
290 Id.
291 Id.. at slide 28.
292 Id.
293 Id. at slide 7.
294 NCDOT, Appendix D, Response to comments (DRAFT), at 9 (Response to Comment 20), Attachment 102 to
SELC Jan. 6, 2014 Comments.
295 See, e.g., Michael Baker Engineering, Inc., Monroe Connector /Bypass Indirect and Cumulative Effects
Quantitative Analysis Update, at 63 (Nov. 2013).
296 See, e.g., SELC Jan. 6, 2014 Comments, at 46.
297 See e -mail from Colin Mellor (NCDOT) to Scudder Wagg (Atkins), re: Response to UST WS letter comments
(Aug. 23, 2013) Attachment 103 to SELC Jan. 6, 2014 Comments; e -mail from Chris Plate (MUCED) to Jamal
Alavi (NCDOT), re: Legacy Park (Aug. 21, 2013) Attachment 104 to SELC Jan. 6, 2014 Comments.
45

C. Goose Creek
NCDOT's failure to consider cumulative impacts, as detailed above, has particular
importance for water quality and endangered species concerns. NCDOT has also failed to fully
analyze in either the NEPA analysis or the permit application the impacts associated with lifting
of the moratorium restricting the Goose Creek sub -basin from the Inter -Basin Transfer ( "IBT ")
between the Catawba River basin and the Rocky River basin. 298 During the environmental
review process, the United States Fish and Wildlife Service ( "USFWS ") strongly objected to the
"Finding of No Significant Impact" ( "FONSI ") ascribed to the lifting of the moratorium.299 In
comments, USFWS noted that the Site Specific Water Quality Management Plan ( "SSWQMP ")
for Goose Creek was insufficient to protect the federally endangered Carolina heelsplitter, and
was therefore insufficient to support a FONSI.300 USFWS outlined suggestions of improvements
to the SSWQMP that would better protect the heelsplitter. 301 ,Without those improvements,
USFWS declined to endorse the installation of water lines into the Goose Creek watershed
noting that it would "contribute to already degraded conditions and further compr[om]ise habitat
in the Goose Creek system. "302 Despite these strong concerns by a federal agency, there is no
substantive analysis in the NEPA documents of the cumulative impact of building the Monroe
Bypass and the installation of new water lines with regards to water quality and endangered
species. 303
While NCDOT has asserted that growth attributable to the Bypass will largely be in the
eastern part of the county and thus well away from Goose Creek,304 the HOT Lane projects
connect to the Bypass in Mecklenburg County, and thus more likely to encourage growth in the
western part of Union County, exactly where the Carolina heelsplitter population is located. Any
significant study of the combined cumulative effects of these major infrastructure investments
and the installation of new water lines in the Goose Creek basin is absent from the NEPA
analysis. Yet NCDWR must analyze precisely such impacts before issuing a Water Quality
Certification.
NCDOT also suffers from overreliance on the SSWQMP as a surefire way to protect the
Carolina heelsplitter from any impacts that the Bypass may have. For example, with regard to
direct impacts of construction, the DSFEIS states that impacts will be avoided due to the
SSWQMP.305 As noted by USFWS, however, the SSWQMP is insufficient to protect the
"' See North Carolina Environmental Management Commission, Hearing Officer's Deport (Apr. 2013), Attachment
109 to SELC Jan. 6, 2014 Comments; see also FSFEIS at A2 -287.
299 Letter from Brian P. Cole, USFWS, to Lyn Hardison, NCDENR, RE; Environment Assessment for the Addition
of the Goose Creek Watershed to the Interbasin Transfer Certificate under Provisions of G.S. 143 - 215.221,
Mecklenburg and Union Counties, North Carolina (Jan, 18, 2013), Attachment 110 to SELC Jan. 6, 2014
Comments.
300 Id
301 Id.
302 Id.
303 See FSFEIS at A2 -287.
304 DSFEIS, Appendix A, Map 14, E1 -87.
3os DSFEIS at C2 -113.
46

Carolina heelsplitter.306 Similarly, NCDOT's claim that it will "strongly discourage" its
contractors from working in the Goose Creek watershed has no meaning. 307 Without an outright
prohibition.in the contract NCDOT's discouragement is inadequate. Yet no such prohibition is
present in the NEPA analysis, 308 nor is it contemplated in the permit application. In fact, the
DSFEIS specifically anticipates that "construction, staging, storage, refueling, borrow pit or spoil
areas" may be used in the Goose Creek and Sixmile Creek watersheds by the contractor. 309 As
such, the NCDOT has failed to provide sufficient information upon which NCDWR can comply
with its duty to consider 15A N.C. Admin. Code 2H.0506(b)(4), 2H.0506(c)(4).
D. NCDOT has Not Analyzed the Impacts of the Fully Designed Project
The analysis of water quality is also incomplete. As noted in the EIS, the full project has
not yet actually been designed.310 Final design will be completed by the design -build team. As
such, important details about bridge crossings, dredge and fill locations, run -off and stormwater
management are all currently unknown. NCDOT has brushed off this failure in the NEPA
analysis, stating only that it is "not unusual" for NCDOT to conduct quantitative water quality
analyses on a project before that project's design is available. 311 Instead, NCDOT states that it
regularly relies on what it considers to be "plausible estimates" rather than actual design plans.312
NCDOT's permit application does not address the fact that it is based entirely on such
estimations rather than actual design, nor does it suggest that the project may be modified from
the design presented in the application materials.
NCDWR cannot issue a Water Quality Certification based on these approximations
because without full project details, it will be unable to make the required finding that impacts
are avoided and minimized to the greatest extent possible. 15A N.C. Admin. Code 2H.0506. We
believe this segmented approach to the permitting is being performed to do an "end -run" around
the requirement by North Carolina's Local Government Commission that a project have permits
in place before any financing options can be pursued. This is not sufficient basis for an approach
that even NCDOT itself believes may not be legal.313 We know that NCDWR has been reluctant
to pursue a phased permit both for this project, and for the Garden Parkway project, noting that
the approach allows NCDOT to "game the system. "314 We urge NCDWR to remain firm on this
30'5 Letter from Brian P. Cole, USFWS, to Lyn Hardison, NCDENR, Re: Environment Assessment for the Addition
of the Goose Creek Watershed to the Interbasin Transfer Certificate under Provisions of G.S. 143 - 215.221,
Mecklenburg and Union Counties, North Carolina (Jan. 18, 2013), Attachment 110 to SELC Jan. 6, 2014
Comments,
307 Biological Assessment for the Monroe Bypass (2013) at 68, available at
http://www ncdot. ovl rolects /unonroeconnector /download /DraftMonroeBA102313. df.
301 See FSFEIS at A2 -288.
309 DSFEIS at PC -2.
310 DSFEIS at 3 -11 to 3 -12; FSFEIS at A2 -285.
31 ` FSFEIS at A2 -285 to A2 -286.
312 Id,
313 See Memorandum and e-mail from Ronald Ferrell to NCTA July 6, 2010; discussing the problems associated
with a tiered approach and noting that the approach could be challenged in court, Attachments 31 & 32.
314 See e -mail from Brian Wrenn to Cyndi Karoly, June 9, 2010, Attachment 33; e-mail from Brian Wrenn to
Christy Shumate, Oct. 31, 2011, Attachment 34; e -mail from Brian Wrenn to Christy Shumate (June 22, 2010),
Attachment 35.
47

issue, and not pursue this illegal segmented approach to the 401 certification. NCDWR should,
thus, refrain from considering the permit application until a comprehensive analysis of the entire,
fully designed project has been completed.
We also note that while generally future modifications are supposed to decrease
environmental impacts, recent experience with a similar NCDOT - proposed toll highway, the
Garden Parkway, shows otherwise. As reflected in the meeting minutes from a November 2011
meeting between NCDWQ, the United States Army Corps of Engineers ( "Corps "), and NCDOT,
the impacts to streams from the Garden Parkway were greater in the permit application than they
were in the NEPA document .315 Even more troubling was the fact that the Corps appears to
anticipate that "future modifications" may "result in larger impacts" requiring the agencies to
revisit "previous decisions /concurrence points.s316 As such, we strongly encourage NCDWR to
require NCDOT to conduct quantitative water quality analyses for the proposal based on the
fully designed project, rather than a mere estimation, before NCDWR can evaluate the Water
Quality Certification application.
III. A 4 441 Water Quality Certification Cannot Be Issued Because the Agency Failed to
Provide Adequate Detail About Mitigation
Before it can issue that approval, NCDWR must determine that existing uses of streams
and wetlands are not removed or degraded. 15A N.C. Admin. Code 02H.0506(b), (c). An
essential part of that determination is whether the proposed mitigation will be sufficient to
replace the unavoidable loss of existing uses. Applicants for § 401 certifications are thus
required to produce detailed mitigation plans for any unavoidable impacts to surface waters.
The permit application for the Monroe Bypass fails to document the intended mitigation
for the project. Neither the NEPA documents nor the permit application include a mitigation
plan for the project. While it is noted that mitigation credits have been purchased from EE p,317
there is no explanation as to where the mitigation is to be located or of what it will consist. Nor
does NCDOT's application provide assurance that NCEEP credits are still an option for this
project, as NCEEP had not yet acceded to providing mitigation at the time of this application.
Rather than provide any further detail about mitigation from the NCEEP program, the
permit application simply refers to a letter from NCEEP dated June 24, 20 10.3 18 NCDOT claims
it has submitted a revised request to NCEEP, but had not received a revised acceptance letter at
the time of the present permit application. 319 The permit assures that NCDOT will be "provided
upon receipt," with no regard to ensuring information regarding the revised EEP agreement is
available to the public during the comment period on the application.320
715 Meeting Minutes, Meeting between NCTA, DWQ, USACE (Nov. 22, 2011), Attachment 107 to SELC Jan. 6,
2014 Comments.
316 E -mail from Monte Matthews, USACE, to Christy Shumate, NCDOT (Nov. 30, 2011), Attachment 108 to SELC
Jan. 6, 2014 Comments.
317 Permit Application at 24.
316 id.
319 Id.
320 Id
48

The 2010 letter was insufficient then and is certainly insufficient now. Under the MOU
that establishes the NCEEP program, mitigation must be implemented before a permit is issued.
However, despite working to secure mitigation for this project for several years, NCEEP has still
failed to demonstrate that sufficient appropriate mitigation is, in fact, available. Nor has NCEEP
ever detailed the specifics of the mitigation that will be performed to support the credits.
Additionally, even at this late stage in the permitting process, not one of the mitigation sites
appears to have been acquired. Thus at this time there is therefore insufficient information in the
permit application regarding mitigation for NCDWR to grant a Water Quality Certification.
If NCDOT wishes to proceed with the project, it must first determine the amount of
mitigation required for the project. As noted above, NCDOT's submitted project plans are based
only on what it considers "plausible estimations," rather than true project design. The agency
has not fully analyzed the actual impacts on water resources this proposed project would have.
As such, it is currently unclear from the permit application the exact amount of mitigation
required.
It is improper for NCDOT to rely on future modifications of the permit at the outset of
the project. State regulations governing the issuance of § 401 certifications clearly do not
anticipate modifications being used in such a way. The language governing modifications makes
it apparent that modifications can only take place takes place if there is a violation of water
quality standards, if information contained in the application is incorrect, or, if conditions under
which the certification was issued have changed. 15A N.C. Admin. Code 02H.0507(d). None of
these circumstances apply to the situation at hand. Nowhere do the regulations suggest that a
modification can be used to allow applicants to limit their initial permit application to plausible
estimations. Id. Instead, NCDOT must update the permit application to reflect more than merely
plausible estimations of the project design.
Once NCDOT has fully detailed the amount of mitigation required based on concrete
design plans, it must determine if that program has sufficient appropriate mitigation available for
the project and carefully document exactly what that mitigation is, and how it will compensate
for the loss of aquatic resource functions that will occur as a result of construction of the Monroe
Bypass. This is particularly important in light of the proposed shift of liability for EEP
mitigation project from NCDOT will further increase the likelihood of poor mitigation.
3zi
Additionally, this information must be submitted during a public comment period, rather than
providing merely a promise to submit the information at a later date. 322
As outlined above, we have substantial concerns about the issuance of a § 401 Water
Quality Certification at this time. We appreciate the opportunity to express these concerns in this
letter and we look forward to meeting with you, your staff and your attorneys on May 10, 2012
to further discuss this project.
32 'Michael Ellison, Ecosystem Enhancement Program Director, NCEEP Budget Update and NCDOT /NCEEP
Operational Process Improvement, presentation to the North Carolina Department of Transportation (June 4, 2014),
Attachment 36.
322 See Permit Application at 24.
49

Sincerely,
yrIk0:Z:)__
Kym Hunter
Staff Attorney
r
Kate Asquith
Associate Attorney
cc: Via Email and U.S. Mail
General Anthony Tata, Secretary, NCDOT
Clayton Sommers, NCDOT
Jennifer Harris, NCDOT
Alan Johnson, NCDWR
Carl Pruitt, USACE
Marella Buncick, USFWS
Chris Militscher, EPA
June Blotnick, Clean Air Carolina
Terry Lansdell, Clean Air Carolina
Terri Pratt, Yadkin Riverkeeper
Will Scott, Yadkin Riverkeeper
Tim Gestwicki, North Carolina Wildlife Federation
Encls.
50