20020672 Ver 3_SELC Comments on 404_20141202

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November 24, 2014
VIA E -MAIL AND U.S. MAIL
Crystal Amschler
U.S. Army Corps of Engineers, Wilmington District
Asheville Regulatory Field Office
151 Patton Avenue, Room 208
Asheville, NC 28801
Crystal. C.Amschler @usace.army.mil
Re: Monroe Bypass — § 404 Permit
Dear Ms. Amschler:
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 § 404
Clean Water Act permit for the Monroe Bypass. These comments incorporate by reference our
earlier comments concerning the recent NEPA review for this project that were submitted to the
United States Army Corps of Engineers ( "Corps ") on November 30, 2012; 1 January 6, 2014;2
April 8, 2014;3 April 10, 2014;4 and June 9, 2014.5
1 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 ConnectorlBypass: Draft
Supplemental Environmental Impact Statement (Jan. 6, 2014) [hereinafter "SELC Jan. 6, 2014 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 ConnectorlBypass (Apr. 8, 2014)
[hereinafter "SELC Apr. 8, 2014 Comments "].
4 Email from Kate Asquith, SELC, to Jennifer Harris, NCDOT, RE: Monroe ConnectorlBypass - Draft
Supplemental Final EIS (Apr. 10, 2014) [hereinafter "SELC Apr. 10, 2014 Addendum Comments "].
s Letter from Kym Hunter and Kate Asquith, SELC, to Jennifer Harris, NCDOT, and John Sullivan, FHWA,
Monroe ConnectorlBypass: Request for a Supplemental Environmental Impact Statement (June 9, 2014) [hereinafter
"SELC June 9, 2014 Comments "].
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As required by § 404(b) of the Clean Water Act, NCDOT has applied to the Corps for a
permit to affect over eight acres of wetlands and over 16,500 linear feet of streams. The Corps
must deny applications for § 404 permits if the discharge that would be authorized by the permit
would not comply with EPA's § 404(b)(1) Guidelines. 33 C.F.R. § 320.4(a). The applicant has
a duty to demonstrate conformity with these Guidelines and the Corps has a duty to verify
compliance with them, Utahns for Better Transp. v. USDOT, 305 F.3d 1152, 1189 (10th Cir.
2002), as well as those of the Corps's public interest review regulations. 33 C.F.R. § 320.4.
For the reasons outlined below, the Corps cannot legally issue a § 404 permit for the
Monroe Bypass at this time. The project selection process was based on a flawed and
incomplete alternatives analysis and the applicant has failed to demonstrate that the selected
project is the Least Environmentally Damaging Practicable Alternative ( "LEDPA ") to meet the
underlying project purpose. 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
practicable 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 project for many years, NCDOT has failed to
demonstrate that sufficient mitigation is available 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. Additionally, in light of these concerns, as well as the
overwhelming and unaddressed public misunderstanding of the project, widespread public
opposition, and dubious financial support, the application also fails to satisfy the Corps's public
interest review requirements.
I. The Permit Should Be Denied Because the Monroe Bypass Is Not the Least
Environmentally Damaging Practicable Alternative
NCDOT's LEDPA analysis is fundamentally flawed under the requirements of both
NEPA and the Corps's Clean Water Act ( "CWA ") requirements. Where a discharge is proposed
N

for a wetland or other special aquatic site, all practicable alternatives to the proposed discharge
which do not involve a discharge to the wetland "are presumed to have less adverse impact on
the aquatic ecosystem, unless clearly demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). The
Corps is required under the 404(b)(1) Guidelines to permit only the least environmentally
damaging practicable alternative. "[T]he applicant and the [Corps] are obligated to determine
the feasibility of the least environmentally damaging alternatives that serve the basic project
purpose. If such an alternative exists ... the CWA compels that the alternative be considered
and selected unless proven impracticable." Utahns for Better Transp. v. USDOT, 305 F.3d at
1188 -1189.
According to the § 404(b)(1) Guidelines, "the analysis of alternatives required for NEPA
environmental documents ... will in most cases provide the information for the evaluation of
alternatives [for § 404 permits]." 40 C.F.R. § 230.1,0(a)(4). However, the alternatives analysis
required by the Clean Water Act is more demanding than that undertaken in the NEPA process.
While NEPA only requires an agency to consider a reasonable range of alternatives, the CWA
mandates that "[n]o discharge of dredged or fill material shall be permitted if there is a
practicable alternative to the proposed discharge which would have a less adverse impact on the
aquatic ecosystem." 40 C.F.R. § 230.12(a)(3).
An alternative "is practicable if it is available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of overall project purpose." 40
C.F.R. § 230. 1 0(a)(2). Thus, in certain cases, the NEPA documents "may not have considered
the alternatives in sufficient detail to respond to the requirements of [the § 404(b)(1)]
Guidelines[,]" in which case "it may be necessary to supplement ... NEPA documents with this
additional information." Id. In light of these requirements, it is not sufficient under the CWA
"for the Corps to consider a range of alternatives to the project: the Corps must rebut the
presumption that there are practicable alternatives with less adverse environmental impact." Id.
(emphasis added).
NCDOT's analysis fails to meet the requirements of both NEPA and the §404(b)(1)
Guidelines. The analysis presented in the FEIS and the § 404 permit application fails to rebut the
regulatory presumption that less damaging alternatives exist.
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, required by the § 404(b)(1) Guidelines, is of
critical importance because it drives the analysis of practicable alternatives. "It is only when the
`basic project purpose' is reasonably defined that the alternatives analysis required by the [§
404(b)(1)] Guidelines can be usefully undertaken by the applicant and evaluated by the Corps."
(U.S. Army Corps of Engineers, Permit Elevation, Old Cutler Bay Associates at 6) (Sept. 30,
1990). Although courts have held that the Corps must consider the applicant's view of the
project purpose, see, e.g., Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044, 1048 (5th
Cir. 1985), the Corps is not bound by the applicant's statement of purpose. Corps regulations
provide that "the Corps will, in all cases, exercise independent judgment in defining the purpose
and need for the project from both the applicant's and the public's perspective." 33 C.F.R.
§ 325, App. 13(9)(b)(4).

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 Monroe Bypass by maintaining that the U.S. 74 Corridor must
function as a high -speed corridor.6 Since NCDOT initially developed this Statement of Purpose
and Need and selected the Bypass as the preferred alternative, considerable changes in the
project Study Area have shown that circumstances do not justify construction of the Bypass. As
explained below, changes in growth expectations, current levels of traffic and congestion, future
traffic forecasts, 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
$800 million new - location Bypass is even necessary.
1. Outdated traffic forecasts
NCDOT's justification for constructing the Bypass is based on a series of traffic forecasts
that has plainly been shown through the most recent NEPA process to be significantly outdated.
During NCDOT's NEPA review of the project, we asked Dr. David T. Hartgen, Ph.D., to review
NCDOT's traffic forecasts for the Bypass. Dr. Hartgen has 45 years of experience in
transportation planning and analysis and is a Professor Emeritus at the University of North
Carolina at Charlotte and a retired engineer.$ Dr. Hartgen is familiar with the Bypass project and
the U.S. 74 Corridor and is cited often by NCDOT itself in the agency's NEPA review. After
his review of the 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 ConnectorBypass, "11 explaining that the documents "simply ignoref] the
last 12 years of history regarding traffic trends on U.S. 74.i12 He reiterated this point after
reviewing the FSFEIS and ROD, stating that he was "compelled to stand by [his] original overall
assessment, that `the traffic forecasts presented ... are too uncertain and insufficiently supported
to be the basis of decision- making regarding the Monroe Connector /Bypass. "'13
6 NCDOT has expressly relied on the U.S. 74 Corridor's designation as a Strategic Highway Corridor ( "SHC ") and
as part of the North Carolina Intrastate System to justify the need for the Bypass. In the most recent NEPA analysis,
NCDOT again initially relied on these designations, DSFEIS at 1 -2, ignoring the fact that, in the interim, the North
Carolina General Assembly had repealed the Intrastate System legislation. North Carolina Session Law 2013 -183 at
Section 49 (repealing N.C. Gen, Stat. § 136 -179). Following our comments highlighting this mistake, NCDOT
acknowledged its error in its FSFEIS errata, but 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, "Review of Traffic Forecasting: Monroe
Connector /Bypass, DFSEIS, December 26, 2013 (June 9, 2014) [hereinafter "Hartgen 2014 Report"], Attachment 2
to SELC June 9, 2014 Comments.
8 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.
91d. at 3.
1 ° See, e.g., ICE Appendix L.
11 Hartgen Report 2013, at 4, Attachment 1 to SELC Jan. 6, 2014 Comments.
12 Id. at 18.
13 Dr. David T. Hartgen, Reply to Response to Comments, "Review of Traffic Forecasting: Monroe
Connector /Bypass, DFSEIS, December 26, 2013 (June 9, 2014), Attachment 1.
4

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
explaining away the many significant flaws highlighted in his original review. Nor has NCDOT
made any attempt to fix these significant flaws in the permit application now before the Corps.
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 mph, and expected that by 2030 the travel time would increase to 70
minutes, with an average speed of 17 mph. 14
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 inflated. Dr. Hartgen noted that NCDOT's observed traffic
data since 2000 show 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% per year (a total of 1.8% in 12
years), and has actually declined since 2005.15 He also noted that near the City of Monroe,
growth has been modest at approximately 0.4% per year. 16 Dr. Hartgen also demonstrated in his
reports that observed traffic volumes at the eastern edge of the project have declined since
2000.17
Yet the traffic forecasts NCDOT used to analyze alternatives in the NEPA analysis
assume that traffic volumes will skyrocket. As demonstrated in HNTB's Traffic Forecast
Summary, the percentage increase in traffic volume 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. 18 Dr. Hartgen explains that the implied percentage changes from current
volumes, which range from 1.3 to 5.4% per year, are five to 10 times greater than the recent 12
years of observed traffic volumes. 19 Though the DSFEIS recognizes that traffic counts from
2007 to 2012 show "zero change, "20 NCDOT has offered no explanation of how to reconcile its
projections of radical increases in traffic volume with the history of flat growth rates over the last
12 years. Dr. Hartgen also notes that these trends pre -date the 2008 recession, and have
14 DEIS (2009) at 1 -18 (table 1 -5).
's Id. at 17.
16 Id.
17 Id. at 17 -18; Hartgen Report 2014, at 2.
18 DSFEIS at G -9 and G -22, table 5.
'9 Hartgen Report 2013, at 18, Attachment 1 to SELC Jan. 6, 2014 Comments,
2° DSFEIS at 4 -20.

continued in the recession's wake, providing strong evidence that they do not represent a short -
term shift, but rather "a huge change in prior trends. "21
Further, Union County is no longer experiencing anywhere near the same level of growth
as in 2008, confirming 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% per year from 2000 to 2010, to just 1.7% per year, based on
the most recent census data .22 Even when Union County's population was growing, traffic
volumes remained stable. As Dr. Hartgen details in his 2013 report, in spite of the previously
high growth in Union County, "traffic on U.S. 74 has not increased substantially since 2000. "23
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 traffic volume seems even less likely.
Dr. Hartgen has also outlined other significant flaws in the traffic forecasts. Importantly,
they do not factor in the majority of traffic improvements already instituted along the U.S. 74
Corridor, nor do they reflect future planned improvements.24 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 NCDOT's 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. "2 Thus, Dr. Hartgen notes that "at the very least, the planned improvements should be
coded into the regional network and used as the basis for all forecasts." 6 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. 27
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 improve traffic conditions dramatically. 28 When these improvements are
paired with either steady or declining traffic volumes observed over the past 12 years, the result
is a significant, sustained divergence from the 2008 traffic forecasts underpinning NCDOT's
justification for constructing the road.
21 Hartgen Report 2013, at 18, Attachment 1 to SELC Jan. 6, 2014 Comments.
22 Id. at 14 (citing www.census.gov).
23 Id. at 17 (emphasis in original).
2a Id. at 13.
zs Id. (citing DSFEIS at 1 -6).
26 Id.
27 Hartgen Report 2013, at 13, Attachment 1 to SELL Jan. 6, 2014 Comments.
28 Id.
Z

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.29 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, 30 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. 31 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. 32
Similarly, while NCDOT summarily reviewed the 2014 CRTPO socio- economic
projections in response to comments by the Conservation Groups they arbitrarily concluded that
new traffic forecasting was not warranted despite this changed data. 33NCDOT 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. 34 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. 35
Indeed, as Dr. Hartgen has detailed in his reports, the population forecasts NCDOT used
to forecast traffic are "probably significantly overstated. "36 Dr. Hartgen has detailed several
critical and flawed assumptions underlying the projections relied upon by NCDOT .37 For
example, he observes that the assumption underlying the "top- down" forecasts that the United
29 DSFEIS at G- 12 -G -13; FSFEIS at Section 2.2, Appendix E2; FHWA, Comment and Response Grid for SELC
Letter dated June 9, 2014, at 10 (Oct. 30, 2014), Attachment 2.
30 Id.
31 See FSFEIS at Appendix E2.
" DSFEIS at G- 12 -G -13; FSFEIS at Section 2.2, Appendix E2; FHWA, Comment and Response Grid for SELC
Letter dated June 9, 2014, at 10 (Oct. 30, 2014), Attachment 2.
" 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 2.
34 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.
" Hartgen Report 2013, at 14, Attachment 1 to SELC Jan. 6, 2014 Comments.
36 Id. at 20.
" Id. at 21 -21
7

States will maintain past growth rates is now untenable, given the recent recession. 38 He also
criticizes the assumption that the Charlotte region will continue to excel relative to other
regions, 39 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.
40
Additionally, Dr. Hartgen questioned the assumption that Union County will attract a
relatively large share of regional growth,41 since 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.AZ His report also questions NCDOT's
reliance on these projections for the purposes of traffic forecasts for the Study Area, as the
projections do not distinguish 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. "43
NCDOT claims that because the area is still expected to 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 .A4 Yet to determine the LEDPA, it is necessary to
define clearly the full scale of growth to be expected; otherwise the Corps cannot properly
evaluate whether other, less damaging 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 in to
improve dramatically. NCDOT's recent 2013 data show that current travel time along U.S. 74 is
now 30 minutes at peak, with an average peak speed of about 44 mph ---- 20 miles per hour faster
than was observed in 2007,45 and just six miles per hour under the arbitrary S0- 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
congestion is not prevalent throughout the Study Area, but rather is limited to a few key hot-
3s Id. at 22.
39 DSFEIS, ICE Appendix H, at 6.
"Hartgen Report 2013, at 22, Attachment 1 to SELC Jan. 6, 2014 Comments.
41 Id.
42 Id.
43 Id. (emphasis added).
44 See FHWA, Comment and Response Grid for SELL Letter dated June 9, 2014, at 2 -3 (Oct. 30, 2014), Attachment
2.
45 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.ticdot.gov/l)rojects/monroeconnector/download/U.S.
74 orridorTravelTimeMemoFinal1024 13.pdf, Attachment 3.

spots.afi 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 . 47
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 10 years, and there is no evidence presented in
the NEPA analysis or permit application as to why NCDOT continues to expect the dramatic
increases 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.48 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 does not necessarily compel construction of the Bypass in
particular. Less expensive and environmentally damaging alternatives may be available now that
conditions in the corridor have improved. NCDOT must therefore analyze and document the
degree of future congestion before the Corps can properly determine whether the selected
alternative is the LEDPA.
Success of alternatives along U.S. 74
, Before the Corps can make its LEDPA determination, NCDOT must develop traffic
projections that take into account the recent improvements to the U.S. 74 Corridor, as well as
foreseeable improvements that have been scheduled and funded for 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,49 NCDOT
has implemented to great effect a wide variety of targeted, relatively low -cost traffic
improvements throughout the U.S. 74 Corridor in the Study Area. Even just these minimal
improvements have proven quite successful. For example, NCDOT has optimized signal timing
for 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 a highly cost - effective congestion management effort, especially in comparison
to expensive alternatives like new construction. In fact, FHWA has noted that the benefit ratio
"DSFEIS at 1- 9 -1 -12.
47 Id.
4$ FSFEIS at Section 1.1.1; see also FHWA, Comment and Response Grid forSELC Letter dated June 9, 2014, at 3,
6 (Oct. 30, 2014), Attachment 2.
49 Stantec Consulting Services, US 74 Corridor Study, Union County, NC, prepared for the NCDOT Division 10
(July 2007), [hereinafter "Stantec Study "], Attachment 4.
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.

can be as high as 40 to 1.51 And because traffic signals can be easily optimized without any
changes to the roadway's existing footprint, the effort maintains access to existing businesses.
NCDOT has added turn -Ianes 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 S2 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 Its past experience with this type of
improvement has proven to reduce accidents at intersections, improving safety as well as
preventing the inevitable traffic slow -downs associated with even the most minor accidents.
ss
NCDOT should expect similar improvements in traffic flow from this project and incorporate
these expectations into future traffic forecasts.
Moreover, 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 1 lth, thereby removing many vehicles from U.S. 74 during
peak travel times. 56 Union County recently 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 riders daily.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 Uniori County as it continues to develop, and CATS representatives have
stated that more commuters could 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 rise. Such an effect is surely even more likely in the
51 S. Lawrence Paulson, Managing Traffic Flow Through Signal Timing, FHWA's PUBLIC ROADS, Vol. 65 No. 4
(Jan/Feb 2002), available at http://www fhwa.dot.gov/publications/publicroads/02janfeb/tiiiiiniz.cfm.
52 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.
14 NCDOT, NCDOT To Make Signal Phasing Changes at Union County Intersection (May 13, 2014), available at
littps://apps.ncdot.gov/iiewsreleases/details.aspx?r--983 1, Attachment 16 to SELC June 9, 2014 Comments.
55 Id.
56 Union County, July 24 Union Update, County Extends Contract with C4TSfor Bus Service to Charlotte (July 24,
2013), Attachment 18 to SELC Jan. 6, 2014 Comments.
57 Id.
5s FSFEIS at A2 -241.
s� U.S. 74 Revitalization Study, at 78, Attachment 5.
N

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 Trai1.61 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 superstrects 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. 63 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).b4
NCDOT is also close to finalizing funding for additional area improvements. North
Carolina has also 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 state -wide.
NCDOT has relied on these scores in targeting several additional improvements for the U.S. 74
Corridor that will be constructed within the next several years. For example, NCDOT 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 Trail.65 It has publicly stated that this project is fully funded for construction within the
60 E -mail from Wilbur C. Garner, Moffatt & Nichol, to Dean Harris, NCDOT, RE: U.S. 74 a Stallings (Apr. 8,
2011), Attachment 19 to SELC Jan. 6, 2014 Comments,
6' 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, MonroeftassFacts.com Meeting Summary, prepared for NCDOT (Dec. 3, 2012), Attachment 21
to SELC San. 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 littps: / /apps ncdot. gov lnewsreleases /details.aspx ?r- 10359, Attachment 6.
65 NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
lltt s: //connect ncdot. ovl ro'ects/ lannin Pa es /ResourcesMPO- RPO.as x, Attachment 7 (see SPOT ID
H141897).

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-downs. 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 10 years. It 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. 69 The
project scored so well because it received the full allocation of local priority points from both the
NCDOT Division Engineer and the local MP0.70
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 wel1.71 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 SE1,C Jan. 6, 2014 Comments at 12.
fib NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
htt sa/connect ncdot. ov/ rojects/ lannin /Pa es/ResourcesMPO- RPO.as x, Attachment 7 (see SPOT ID
H090344).
69 Id
70 Id
71 NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
https:/ /connect ncdot.gov/ projects / planning /Pages /ResourcesMPO- RPO.aspx, Attachment 7 (see SPOT ID
HI 11190).
72 Id.
"DSFEIS at 1 -9-- 1 -10.
74 NCDOT, P3.0 Total Scores (Sept. 24, 2014), available at
htt s:/lconnect ncdot. ov/ roiects/ lannin /Pa es /ResourcesMPO- RPO.as x, Attachment 7 (see SPOT ID
HI 1 l 190).
75 Id.
76 Id. (see SPOT ID H142085).
12

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 2010,84 failing to recognize
the major changes in Union County growth trends since 2010. For example, the 2013 DSFEIS
77 FSFEIS at Section 2.2, Appendix E2; FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014,
at 22 (Oct. 30, 2014), Attachment 2.
78 Id (see SPOT ID HO90701).
79 Id. (see SPOT ID H090434).
so Id (see SPOT ID H090594).
" Id. (see SPOT ID H11 1195).
82 Id. (see SPOT ID H 140416).
87 Id. at 36 -37, 41 -42, 44 -45.
84 DSFEIS at 1 -4.
13

incorrectly stated that Union County is the fastest - growing county in North Carolina. 8s 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 2012.88 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. 74.82 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, 94 nor has it addressed these flaws in the permit application.
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.
" DSFEIS at I -2.
86 Hartgen Report 2013, at 6, Attachment 1 to SELC Jan. 6, 2014 Comments.
" FSFEIS at A2 -242.
88 E -mail from Ken Gilland, Baker Corporation, to Scudder Wagg et. al., Baker Corporation, RE: DRAFT USACE
Presentation (Population estimates) (Feb. 14, 2013), Attachment 22 to SELC Jan. 6, 2014 Comments.
89 Hartgen Report 2013, at 14, Attachment I to SELC Jan. 6, 2014 Comments.
"Memorandum from Michael Reese, NCDOT, to Sean Epperson, NCDOT, U.S. 74 Corridor Superstreet and
Traditional Intersection Capacity Analysis, at 1 (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
htwWwww ncdot.gov/ projects /monrocconnector /download /rnonroe HIS ComprehensiveTraf _f_icRevenue_Study_.pdf
[hereinafter Traffic and Revenue Study 2010].
93 Hartgen Report 2014, at 13 -14, 49, 65.
94 Id. at 1 -14, 49, 65.
14

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 limited hot -
spots, and there are potential alternatives, smaller in scale and less expensive than the Bypass,
that might address this congestion. Further, the average travel speed in the corridor is fast
approaching NCDOT's goal of 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, the Corps must require that NCDOT fully analyze
the traffic and growth forecasts supporting its stated purpose and need for the project before it
can make a LEDPA determination.
B. NCDOT Used Flawed Traffic Forecasts to Improperly Eliminate Many
Practicable Project Alternatives.
1. NCDOT's alternatives analysis is based on flawed traffic forecasts
The analysis of practicable alternatives NCDOT proffers to support this 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 Martin/Alexi ou/Bry son 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 Purporting to update traffic projections, NCDOT later conducted a 2035
No -Build forecast, the sole purpose of which was to foster [perpetuate ?] 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 Thus, NCDOT's alternatives analysis in the
NEPA review essentially remains based on the 2008 projections for 2030, 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.
951d. at G -5; see SELC Jan. 6, 2014 Comments for more detail.
95 Id.; see also id. at G -35.
97 ]d.
"DSFEIS at G -2.
15

a. The alternatives analysis is skewed by flawed socio - economic data
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 effectiveness 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 The Corps must require NCDOT to analyze these issues fully before
it can make a LEDPA determination.
2. NCDOT's flawed traffic forecasts bias the agency's analysis of
practicable 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 practicable alternatives to address the problem.
Rather than using accurate forecasts to compare a range of practicable alternatives
transparently, NCDOT has used its bogus, overstated projections to justify its choice of a new-
9' FSFEIS at A2 -251.
10' DSFEIS at G- Ib —G -17.
101 Id.
102 Id.
103 Id.
IV

location bypass as the only practicable alternative to address area congestion.14' NCDOT's
development and evaluation of practicable 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),105 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.' 07 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. t08 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 t
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 practicability 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 of project in the
Corridor, 112 but it does nothing to reevaluate transparently and publicly the relevant success of
different practicable 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 of the CWA. By relying on
outdated and flawed projections that vastly overstate future traffic volumes, NCDOT makes
practicable, less environmentally damaging alternatives to the Bypass look less promising.
Instead, the Corps 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 404 permit.
114 DEIS (2009) at 2- 3 -2 -4.
"' DSFEIS at 2 -1.
106 Id.
107 Draft EIS (2009) at 2 -3.
'0' Id. at 2 -4.
109 Id.
110 Monroe Conn ectorBypass Project Alternatives Development and Analysis Report, at 1 -7 -1 -8 (Apr. 2008),
available at http: / /www.nedot.gov/ proi ects/ inonrocconnector /downtoad /nionroe DEIS AltsReport Rev.pdf.
... Id. at 1 -10.
112 DSFEIS at G -13.
17

3. NCDOT's alternatives analysis fails to analyze patterns of traffic in
the Corridor
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
practicability.
When the Conservation Groups raised this point to NCDOT,113 NCDOT asserted that no
further analysis is necessary, as MUMPO supports the project and the Traffic & Revenue Study
shows the project to be financially feasible with toll s.114 NCDOT has also pointed to its
October 24, 2012 response letter to LXnda Paxton, then Mayor of Stallings, for "[d]etails about
traffic patterns, mixes and volumes," 15 and appears to rely solely on this letter to address the
issue.[ patterns,
as the confused smokescreen of percentages listed without explanation in
NCDOT's letter to Mayor Paxton demonstrates, 117 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.[ 1s
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 little 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
%. 21 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
13 See SELC Nov. 30, 2012 at 38 -39; SELC Jan. 6, 2014 Comments.
DSFEIS at A 1 -85.
i i s Id
" ' 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 0- 6 -0-7.
"a DSFEIS at C3 -1, 3 -6 (Traffic and Revenue Study 2010).
9 Id. at A 1 -25.
120 Id. at A] -26.
121 Id,
122 Id. NCDOT says this overstates the importance of truck traffic. FSFEIS at A2 -255. Yet NCDOT's own data
preojects nearly 20% of the Bypass traffic will result from truck. Id.
18

the coast during peak beach season (Memorial Day to Labor Day). 123 NCDOT has also publicly
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. 121 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.12$ 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 Bypass 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 practicable project alternatives meet the stated
purpose and need. 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.
Accordingly, before the Corps can issue a 404 Permit for the Bypass, it must require
NCDOT to analyze who exactly would use it. Only then can it perform a thorough analysis of
123 Traffic and Revenue Study 2010, at 3 -1.
12a 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 "].
126 Id.
121 Id. at 16.
12' 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. 1, 2010), availahle at
http: / /www ncdot .gov /projects /monroeconnector/ download/ I_CEAppendixKRepoilIndepEco.pdf.
129 Td. at 31 -33.
19

the practicability 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.
C. NCDOT Did Not Adequately Consider All Practicable Alternatives
NCDOT failed to conduct a sufficient analysis of practicable alternatives in its NEPA
review and has failed to provide any deeper analysis of practicable alternatives in this
application. Additionally, NCDOT has 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. in light of NCDOT's failure
to consider these options fully, it has failed to 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
The statement of project purpose required by the § 404(b)(1) Guidelines is of critical
importance because it serves as the touchstone for the analysis of practicable alternatives. The
CWA regulations provide that the determination of "practicable" alternatives requires
consideration of cost, existing technology, and logistics in light of the overall project purposes.
40 C.F.R. § 230.3(q). As such, the agency's proper delineation of a project's purpose is an
essential step in discerning practicable project alternatives.
"It is only when the `basic project purpose' is reasonably defined that the alternatives
analysis required by the [§ 404(b)(I)] Guidelines can be usefully undertaken by the applicant and
evaluated by the Corps." (U.S. Army Corps of Engineers, Permit Elevation, Old Cutler Bay
Associates at 6) (Sept. 30, 1990). Although courts have held that the Corps must consider the
applicant's view of the project purpose, see, e.g., Louisiana Wildlife Federation, Inc. v. York,
761 F.2d at 1048, the Corps is not bound by the applicant's stated purpose. Corps regulations
provide that "the Corps will, in all cases, exercise independent judgment in defining the purpose
and need for the project from both the applicant's and the public's perspective." 33 C.F.R. §
325, App, 13(9)(b)(4).
The Assistant Secretary of the Army (Civil Works) has cautioned against "so narrowly
defining the project purpose that it unreasonably limits the consideration of alternatives and,
thereby, subverting a key provision of the [§ 404(b)(1)] guidelines." Old Cutler Bay Associates
at 4. Corps headquarters has rejected overly restrictive statements of project purpose,
emphasizing that "[t]he project purpose must be defined so that an applicant is not in the position
to direct, or attempt to direct, or appear to direct, the outcome of the Corps evaluation required
under the § 404(b)(1) Guidelines." (Old Cutler Bay Associates at 7). Here, NCDOT improperly
narrowed the project purpose used in the NEPA analysis purposefully to eliminate practicable
project alternatives.
NCDOT's analysis of practicable 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
►.1

40 C.F.R. § 1502.13. Yet this Statement of Purpose and Need is overly narrow and written in
such a way that it precluded 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:
I ) 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. 74.11301
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
must apparently allow for "high- speed" travel, which is again specifically defined as being
consistently over 50 miles per hour. 131 The project must extend from one very specific location
(I -485) to another specific location (Marshville). 132 And the project must maintain access to
properties along U.S. 74.133 Each of these elements is arbitrary, and in combination they form a
statement that is "so unreasonably narrow that only one alternative ... [could ever] accomplish
the goals of the agency's action," so that other alternatives were never seriously considered, and
the alternatives analysis in the EIS was a "foreordained formality." Simmons, 120 F.3d at 666;
see also Webster, 685 F.3d at 422.
For example, as noted above, the "high- speed" element, with its very specific speed limit
of 50 miles per hour, is noted to have its origin in the Strategic Highway Corridor ( "SHC ")
Vision Plan. 134 This external planning product was never subject to the public participation
requirements of NEPA, and therefore should not have been imported into the NEPA process
without opportunity for public comment and consideration. 135 Without the SHC document, it
becomes clear that the requirement of 50 miles per hour is an artifice designed to constrain
alternatives to only those that involve a new - location highway.
As detailed above, the Corridor is 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 -cost solutions that would not require a toll and
would provide real congestion relief to Union County drivers. Removal of this artificial limit
130 See NCDOT, Final Statement of Purpose and Need for the Monroe Connector/ Bypass (Feb. 2008), available at
httoWwww ncdot.fzov/ projects /monroeconnectorldownload /Final Monroe PN 020608.pdf.
'31 Draft Supplemental Final Environmental Impact Statement [hereinafter "DSFEIS "] at 1 -3, 2 -3, available at
http: / /www ncdot .goy /projects /monroeconnector /.
132 id.
133 Id.
134 Id.
131 Moving Ahead for Progress in the 21st Century ( "MAP -21 "), Section 1310, 23 U.S.C. § 168(d)(4).
I

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 termini 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
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 further constrained consideration of
alternatives, precluding consideration of many alternatives that would address the true
congestion hot -spots 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 100 years. 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
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 practicable
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 license to disregard the requirement that
they select the LEDPA. If NCDOT elects not to revise the purpose and need, the Corps must do
so. As noted above, the Corps has the authority to fashion its own purpose and need for the
project and the obligation to make clear upon what basis it intends to perform its LEDPA
evaluation. 33 C.F.R. § 325 App. 13(9)(b)(4).
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
136 DSI:EIS at 1- 9 -1 -12.
137 Id.
22

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 function together,
instead limiting 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 the Corps 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 practicable project
alternative S,140 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 the Corps to
assess adequately whether the chosen alternative is the LEDPA. Given the outdated nature of
NCDOT's alternatives analysis and the changed circumstance described above, the Corps 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 Corps can issue a 404 Permit. Pursuant to the 404(b)(1) Guidelines, it is
therefore "necessary to supplement [the] NEPA documents with ... additional information"
before the Corps can make a LEDPA determination. 40 C.F.R. § 230.10(a)(4).
In our many past comment letters to NCDOT, we have regularly suggested a variety of
alternatives that NCDOT must consider. These alternatives are highlighted below.
Improvements to existing U.S. 74
To start, the Corps 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 or 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.
138 See, e.g., SELC Jan. 6, 2014 Comments.
134 Memorandum from Jill Gurak and Carl Gibilaro, PBS &J, to Jennifer Harris, NCDOT (Oct. 19, 2006).
Attachment 29 to SELC Jan, 6, 2014 Comments.
140 See, e.g., SELC Jan. 6, 2014 letter, at 25 -36; SELC June 9, 2014 Comments.
141 See id.
14' FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014, at 10 (Oct. 30, 2014), Attachment 2.
23

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 U.S. 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. 146
The Corps must ensure the alternatives analysis for this project considers this and similar
targeted improvements, 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 pur�ose and need . 147 Yet this assessment is based
entirely on outdated, inaccurate traffic forecasts. 14 For example, in an October 2012
memorandum evaluating the Stantec Study, NCDOT staff dismissed the traffic improvements
suggested in the Stantec Study as failing to provide any long -terra 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. 149 To ensure a proper examination of this practicable alternative, the
Corps 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 practicable 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
143 DSFEIS at 1 -13.
144 Id,
145 Id
146 See FSFEIS at A2 -259.
141 See FSFEIS at A2 -264; see also FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014 (Oct.
30, 2014), Attachment 2.
148 Id. at 2 -9; Memorandum from Bradley Reynolds, HNTB, to Christy Shumate, NCDOT, STIP R- 3329IR -2559
Mbnroe Connector /Bypass (Oct. 18, 2012), available at
http: / /www nedot.govl projects/ monroeconnector ldownload/MemotofileStantecU.S. 74CorridorStudyl01812.pdf.
[hereinafter "Stantec Memo "],
149 Stantec Menlo, at 3.
24

Study. 150 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. 151 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. 152 For example,
Union County has incorporated the final plan into its recent growth management planning
effort. 153 Though NCDOT correctly notes that it was not the purpose of the U.S. 74 study to
develop alternatives to the Bypass, 54 the draft 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.155
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. 74.156 He notes that the alternatives analysis should rightly include
evaluation of such options that may take a minimal, or minor, number of existing properties
along existing U.S. 74.157 Such consideration would be logical, given the vast number of
properties that would be taken by the Bypass.
NCDOT has implemented similar on- current - alignment upgrades 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. 158 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,t59 and would widen the existing six -lane
"' See U.S. 74 Revitalization Study, Attachment 5.
151 Id.
152 Id.
15' See, e.g., Adam Bell, Union County adapts growth management plans (Oct. 24, 2014), CHARLOTTE OBSERVER,
available at http://www.charlotteobserver,com/2014/10/24/5264728/unioti- county- adopts- growth-
management.html #.VGzJM nF93B, Attachment 8.
154 DSFEIS at Al -84; FSFEIS at A2 -261.
"' U.S. 74 Revitalization Study, Attachment 5; see also HNTB, Union County Commissioners Progress Briefing
(May 7, 2013), Attachment 31 to SELC Jan. 6, 2014 Comments.
156 Hartgen Report 2013, at 8, Attachment I to SELC Jan. 6, 2014 Comments.
157 Id.
"" NCDOT, U.S. 74 Widening & Improvements, available at http:/ /www.ncdot.,g_ov_/proiects /U.S.
74Widening[mprovements /, Attachment 32 to SELC Jan, 6, 2014 Comments; see also, CRTPO, Independence Blvd.
Widening (Sharon Amity to Conference Drive), available at httpa /www.crtpo.oi Ig independence- blvd - widening-
sharon- amity- conference - drive, Attachment 33 to SELC Jan. 6, 2014 Comments.
159 "NCDOT will begin setting barrier walls on Independence Boulevard in Mecklenburg County" (June 12, 2013),
available at https://apps.ncdot.gov/newsreleases/details.aspx?r=8383, Attachment 34 to SELC Jan. 6, 2014
Comments.
25

roadway to include four general purpose lanes and one bus lane in each direction. 160 The agency
will also build bridges, or grade separations, at interchanges with Sharon Amity Road, Idlewild
Road, and Conference Drive. 161 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. NCDOT has regularly dismissed each individual improvement as insufficient to
address the project's stated purpose and need, 162 We raised the consideration of improvements
to Old Monroe Road and Old Charlotte Highway in our November 2012 comment letter, 163 but
received the response, without analysis, that such improvements were found
not to meet the project purpose and need. 164 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).
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." 16s This statement demonstrates NCDOT's fundamental misunderstanding of
its duties under NEPA to evaluate alternatives and further underscores its failure to consider fully
all practicable project alternatives as necessary under 404(b)(1).
The Corps must require NCDOT to evaluate such practicable alternatives before it may
grant a 404 permit. 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. 74.166
160 Id
161 Id.
16' See, e.g., FSFEIS at A2 -263.
163 See SELC Nov. 30, 2012 Comments, at 35 -36.
164 DSFEIS at Al -83; FSFEIS at A2 -263.
165 FSFEIS at A2 -263.
166 For more detail, see Business leaders, NCDOT discuss Monroe Bypass, UNION COUNTY WEEKLY (Feb. 8, 2013),
Attachment 35 to SELL 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 far
Old Monroe Road ?, UNION COUNTY WEEKLY (Aug. 24, 2013), Attachment 37 to SELC Jan. 6, 2014 Comments;
lr

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.
Another parallel road that could greatly alleviate a congestion hot -spat 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 2040 MTP Candidate Projects List.' 67 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. 168 Other potential improvements to the parallel road network are detailed
in the U.S. 74 Revitalization Study. 169 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. 170
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 Continents.
167 CRTPO 2040 MTP Candidate Projects (Aug. 21, 2913), available at
http: / /www.crtl)o.orgJPDFs /LRTP /2040 /2040 MTP Candidate_ Projects List.pdf_ Attachment 40 to SELC Jan. 6,
2014 Comments.
168 See Figure 1.
kfi9 U.S. 74 Revitalization Study, at 63 -71, Attachment 5.
170 Id.
27

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Figure l.. 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 NEAA analysis and in the U.S. 74
Revitalization Study, the Corps 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. 171 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 that, however that 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. 172
While Union County transit ridership may currently be slightly lower than other
surrounding areas, it has been increasing. 173 In fact, the transportation experts who compiled the
U.S. 74 Revitalization Study found that demand for increased transit services will continue to
17' See id. at 2 -8, Al -84; NCTA, Draft Alternatives Development and Analysis Report (Nov. 5, 2007), at 1- 9 -1 -11,
available at
http:Hwww ncdot. govl proicctsl nionroeconnector ldownloadlmonroe archives AltsDevRptA HScreenings I 10607.pdf.
171 U.S. 74 Revitalization study, at 3, Attachment 5.
X73 Id. at 16.
28

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 [] creatcd in collaboration with other jurisdictions in Union County,
Mecklenburg County, Town of Matthews, City of Charlotte, and CATS. "174
The Corps 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. 175 NCDOT dismisses these activities as a "temporary initiative, "I 6 but has never
addressed whether and how such efforts could 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 in combination with other Corridor improvements.' 7
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.
e. 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, 178 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
"' Id. at 78.
15 See details at SELL Jan. 6, 2014 Comments; see also NCDOT, Fortify: Frequently Asked Questions, available at
http:llncdot,gov /fortifync/ resources /does /Fortify FAQ,pdf, Attachment 41 to SELC Jan. 6, 2014 Comments; Dawn
Kurry, Free bars may be faster than Fortify traffic freeze, TRIANGLE. BUSINESS JOURNAL, Attachment 42 to SELC
Jan. 6, 2014 Comments; NCDOT, Fortify: Transit Options, available at lrttpafticdot.eov /fortifync /transit - options /,
Attachment 43 to SELC Jan. 6, 2014 Comments; NCDOT, Forth Powerpoini Presentation, available at
http: /!nedot.jzov /fortifvnc/ resources /docsINCDOTPowerPointFORTIFYI 182013.ppt, Attachment 44 to SELC Jan.
6, 2014 Comments, NCDOT, Fort: Driver Information, available at httoaHnedot.gov /fortiNne /driver- info/,
Attachment 45 to SELC Jan. 6, 2014 Comments; Dawn Curry, Massive I- 401440 rebuild means Raleigh must
'Fort' 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 (October 28, 2013), Attachment 47 to SELC Jan. 6, 2014 Comments.
16 FSFEIS at A2 -265.
17 See, e.g., FSFEIS at A2 -266 — 67; FEIS (2010), Appendix B, at B -3 -34 — B -3 -35.
178 Hartgen Report 2013, at 11, Attachment 1 to SELC Jan. 6, 2014 Comments.
29

management. 179 Accordingly, the Corps must require NCDOT devote the same consideration of
these options in regard to this project before issuing a 404 permit.
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.' 80 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.181 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, the Corps 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 LEDPA determination.
D. NCDOT has not adequately compared the financial practicability of various
project alternatives
Additionally, the Corps's comparison of practicable 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
decade 182 _ 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
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
19 NCDOT, Fort: Employer Resources, Attachment 52 to SELC Jan. 6, 2014 Comments; NCDOT, Fort
Poiverpoint Presentation, available at
littp://ncdot.gov/fortifync/ resources /docs/NCDOTPowerPointFORTIFY I 182013.ppt, Attachment 44 to SELC Jan.
6, 2014 Comments; Bruce Siceloff, Road Worrier: NCDOT says not to worry about 3 years of Beltline misery — be
happy!, NEWS & OBSERVER (Oct. 28, 2013), Attachment 47 to SELC Jan. 6, 2014 Comments.
"0 DEIS (2009) at 2 -26.
181 DSFEIS at Al -85.
1$2 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 I to SELL
June 9, 2014 Comments.
30

recommended in the Stantec Study was estimated to cost approximately $15 million, 183 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. 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. 184 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. 74.18s
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,' 86 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. 187 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.188 Additionally, the study assumes that gas will remain at $3 a gallon in 2010
dollars, another assumption that has not held true.189 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
Paving, and several of its top employees have all recently plead guilty in a major federal fraud
183 Stantec Study, Attachment 4.
1$4 Traffic and Revenue Study 2010, at 4 -9, Attachment 84 to SELL Nov. 30, 2012 Comments.
'SS Id. at 6 -4.
iss Id. at 6 -5.
187 Id.
"' Id. at 6 -4.
189 Id. at 6 -5
31

scheme involving the Bypass.' 90 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.lgl 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.192 As such,
the cost of the Bypass is sure to continue to escalate, perhaps to the point that the project is not,
in fact, practicable. NCDWR must require NCDOT to evaluate the practicability of other, less
costly alternatives in light of this information.
II. The Corps Cannot Issue a � 404 Permit Because NCDOT Has Failed to
Demonstrate that the Monroe Bypass Will Not Substantially Impair Downstream
Water Qualms
The § 404(b)(1) Guidelines require the Corps to consider secondary effects to the aquatic
ecosystem that may result from a project. 40 C.F.R. § 230.11(h). Upon consideration of this
factor, the Corps 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 quality. Second, the agency failed to account for those impacts to
downstream water duality that do, nonetheless, appear in its flawed analysis.
190 US v. Boggs Paving, Inc., Bill of Indictment, No. 3:13CR204_MOC -DSC (W.D.N.C. Jul. 25, 2013), Attachment
9; Boggs Paving official pleads guilty to federal charges (Jul. 22, 2014), ENQUIRER JOURNAL, available at
http: / /www.encluircrioumal.com /news /x 143264263Boggs- Paving - official- pleads- jzuilty -to- federal- charges,
Attachment 10; U.S. Attorney, Former Chief Financial Ojjicerfor Boggs Paving, Inc. Pleads Guilty in Connection
tivith $87 rffillion Fraud Scheme Involving Government- Funded Construction Projects (Jul. 22, 2014), available at
httpWwww fbi.gov /charlotte /press- releases /2014 /former- chief - financial- officer- for- boggs- paving ine.- pleads- uil -
in- connection - with -87- million- fraud - scheme- involvin overnment- funded - construction roiects, Attachment 11;
Blake Hanson, Boggs Paving vice president pleads guilty to fraud (Jul. 24, 2014), WSOCTV, available at
http: / /www.wsoctv.com /news /news /local /boggs - paving -vice president- pleads - Guilty- fraud/ngmyf /, Attachment 12;
Kathryn Burcham, Paving company facing federal fraud charges recently awarded multimillion- dollar contract (Jul.
26, 2014), WSOCTV, available at http: / /www.wsoetv.coirt/news /news /local /paving - company, -fig- federal - fraud-
charges- recent /nY5K4 /, Attachment 13; Elizabeth DePompei, Fourth paving company executive pleads guilty in
federal fraud case (Aug. 5, 2014), CHARLOTTE OBSERVER, available at
htt :// www. charlotteobserver .com /2014/08/04/5086366/fotirth- avin -com an - executive html #.0 3WIUl0WHt,
Attachment 14; Kathryn Burcham, 5 indicted in alleged scheme to defraud the government in paving contracts
(Aug. 20, 2014), WSOCTV, available at littp: / /www.wsoety. com /riews/iiews /local /5- indicted - alleged- scheme-
defraud- overnment- avin/nZTZx/, Attachment 15; Michael Gordon, `Drew' Boggs, paving company CEO, to
plead guilty Thursday (Aug. 26, 2014), CHARLOTTE OBSERVER, available at
htt : / /www.charlottcobserver ,com /2014/08/26/5131242/drew -bo s- avin - ceo -to- lead html #.0 3wTO10VA ,
Attachment 16; When Boss Hog and the Good Old Boys Decide to Hoodwink Uncle Sam on Road Contracts... (Aug.
27, 2014), CHESAPEAKE TODAY, available at htt :/ /www.the -chew eake.corti12 0 1 4 /0 712 3 /boss -ho ood- old -bo s-
decide- hoodwink- uncle -sam- road - contracts /, Attachment 17; Michael Gordon and Steve Harrison, Boggs Paving
CEO pleads guilty in minority contractor fraud (Aug. 28, 2014), CHARLOTTE OBSERVER, available at
http: // www. charlotteobserver .com /2014/08/28/5134655/boggs- paving- ceo - Meads- guilty.htnil #. VADmwO I OUnU,
Attachment 18; Heather Smith, Drew Boggs pleads guilty to two felonies (Aug. 28, 2014), ENQUIRER JOURNAL,
available at htt : / /www.eii uirermoui-nal. com /news /local /xl788471605/Drew -Bo s- leads- uilt -to- two - felonies,
Attachment 19.
191 Id.; see also excerpt from Monroe Bypass contract, Attachment 253 to SELC Jan. 6, 2014 Comments,
192 See, e.g., Steve Harrison, NC DOT chair won't discuss Boggs Paving contract (Oct. 7, 2014), CHARLOTTE
OBSERVER, available at htt : / /www.cliarlotteobserver .coin /2014/10/07 /5226728 /nc -dot- chair- wont- discuss-
boggs htnll#.VDUygOIOWnU, Attachment 20.
32

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."' 93 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. 194 In sum,
the DSFEIS reports that "the methodology used does not incorporate the full accessibility
impacts of major roadway projects. "195
This failure is staggering considering that in its previous EIS for this project, NCDOT
repeatedly explained how important transportation infrastructure is to levels and distribution of
development. In the 2009 Qualitative ICE study, for example, NCDOT explained time after time
147 DSFEIS at E1- 59— E1 -64.
194 Id at E1- 64— E1 -69.
'9s Id. at E1 -79.
33

that improving travel time to major employment centers through infrastructure investments
would be one of the primary factors in determining where growth would go. 196 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. 97 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. 098 He emphasized that this is especially true of infrastructure projects that "help
connect rural areas to jobs, healthcare, and education centers." 199 Governor McCrory has
highlighted that he expects enhancing flow through the U.S. 74 Corridor statewide will be an
important part of this effort.200 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 , 201
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
196 See, e.g., Qualitative ICE analysis (2009) at 6 -7.
197 Jenny Callison, McCrory, Tata zinveil 'Road map' for state's transportation fzrture (Sept. 17, 2014), GREATER
WILMINGTON BUSINESS JOURNAL, available at
http: / /www.wilmingtonbiz. com /p,oyernment/2014 /09/17 /mccrory tata unveil %C3 %83 %C2 %A2 %C3 %A2 %E2 %8
0 %9A %C2 %AC %C3 %8B %C5 %93road ma % C3% 83% C2% A2 %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 %E2 %80 %9E %C2%
A2s trans ortation future /12328, Attachment 21; Bruce Siceloff, Tata fleshes out McCrary proposal for SIB in NC
transportation bonds (Sept. 20, 2014), NEWS & OBSERVER, available at
http: / /www newsobserver .com /20 1 4/09/20/4 1 6 7449/tata- fleshes- out - tnccrory- proposal html ?rh =1, Attachment 22;
Steve Harrison, Gov. Pat McCrory's road plan could advance low - scoring projects (Sept. 22, 2014), CHARLOTTE
OBSERVER, available at http: // www. charlotteobserver .com /2014/09/22/5193183 / og_v_pat-mccrorys- road -plan-
cauld.html #.VCWaK0IOXTt, Attachment 23; Jim Longworth, Governor McCrory speaks out on Triad Today (Oct.
29, 2014), YES WEEKLY, available at http: / /yesweekly.com /article- 18976 - governor- mccrory- speaks- out -on- triad-
today.fitml, Attachment 24; Jackie Bridges, US 74 Bypass construction 'generally on schedule' (Oct. 3, 2014),
SHELBY STAR, available at http: / /www.shelbystar.com/news /local /us -74- bypass - construction - generally -on-
schedule- 1.381994, Attachment 25; 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. us /newsroom /press- releases /20141030 /governor - mccrory- northeast- nc- toinonnw -talk-
transportation-iobs -and, Attachment 26.
"' Bruce Siceloff, Tata fleshes out McCrory proposal for SIB in NC transportation bonds (Sept. 20, 2014), NEWS &
OBSERVER, available at htt :// www, newsobserver .com /2014/09/20 /41674491tata- fleshes - out- inccror -
proposal html ?rh —1, Attachment 22.
199 Id.
Zoo Jenny Callison, McCrory, Tata ztnveil 'Road map' for state's transportation future (Sept. 17, 2014), GREATER
WILMINGTON BUSINESS JOURNAL, available at
litto: //www.wilmingtonbiz.coin/governinent/2014/09/17/mccroi-v tata unveil %C3 %83 %C2 %A2 %C3 %A2 %E2 %8
0 %9A %C2 %AC %C3 %8B %C5 %93road ma % C3% 83% C2% A2 %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 %E2 %80 %9E %C2%
A2s transportation future / 12328, Attachment 21.
... NCDOT, How NCDOT uses the TREDIS to Calculate Economic Competitiveness in the Strategic Prioritization
Process (Mar. 15, 2013), Attachment 27.
34

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. "202 NCDOT responded that, because a different
methodology was used for the "Build" scenario, any concern about the "No- Build" scenario is
irrelevant. 2 3
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 determine the impact attributable to the project. See, e.g., Friends of Back Bay
v. U.S. Army Corps of Eng'rs, 681 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 minutes. 204 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 long - 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. "205 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 mph and two thirds of intersections are
expected to operate at Level of Service E or F.206 The very impetus for building the Bypass was
the expectation that, without significant transportation investments, congestion in the corridor
will become a "major barrier limiting access from Union County to the major employment
centers in Mecklenburg county. "207
2" FHWA, NCDOT and Atkins, Comment Chart, excel sheet, Attachment 53 to SELL Jan. 6, 2014 Comments.
203 !d.
zoa DEIS (2009) at 1 -18 (table 1 -5).
2os See, e.g., DSFEIS at E1 -84.
Zoe FEIS (2010) at 1.1.2 and 1.1.8 (referenced by DSFEIS at 2 -13).
20' DSFEIS at E1 -84.
35

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. 208 Similarly, planners from Marshville state that congestion on
U.S. 74 currently is an impediment to development. 209 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. "210 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 .211 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. USDOT, 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 were 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.
2. 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
208 Id. at ICE Appendix A, regarding Union Comity.
209 Id. at ICE Appendix A, regarding Marshville.
210 E -mail blast from Sharon Rosche, Union County Chamber of Commerce, RE: Monroe Bypass — Let's ivork to get
this project moving! (Mar, 5, 2013), Attachment 54 to SELC Jan. 6, 2014 Comments.
2] 1 See, e,g., LandDesign, Union Counly Comprehensive Plan, at 19 (Jul. 2014), prepared for Union County,
available at http://www.co.tinion ne.us /Portals /O /Plantiin g/p fan s/UnionCount FinalDraftRe ort9 -22. Vd f,
Attachment 28; see also Stantec, Union County Multimodal Transportation Plan (Oct. 2014), prepared for Union
County, available at http://www.co.union.iic.us/Portals/O/Planiiiii I lans /UnioiiCoun Trans ortationPlanDraftlO-
14- 14.pdf, Attachment 29.
36

fastest growing county in the state — it grew 2.2 %212 or less213 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.214 FHWA, taking note of these data, asked if perhaps
NCDOT should also adjust the socio- economic forecasts downward in light of the reces Sion, 2 5
NCDOT admitted that it "would be more accurate to so. "216 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 the Corps 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. 217 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 .2la NCDOT
maintains that it did not use these forecasts because they had not yet been fully finalized when it
was completing the NEPA analysis.
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. Even more, as NCDOT has recognized, the updated socio- economic data were
212 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.
2'3 Dr. Hartgen calculates the growth rate as 1.7% in his report. Hartgen Report 2013 at 6, Attachment I to SELC
Jan. 6, 2014 Comments.
"' ICE Appendix K, at 29 -30.
2'S FHWA, NCDOT and Atkins, Comment Chart, excel sheet, at Question 60, Attachment 53 to SELC Jan. 6, 2014
Comments.
2161d. at response to Question 60.
217 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 ").
Z'$ Id. at Al -74.
37

finalized and available in April 2014, well before NCDOT submitted this permit application. 219
Even if NCDOT chooses to rely on inaccurate and outdated data in the NEPA analysis, the Corps
cannot issue a permit under Section 404 until NCDOT has evaluated the impacts to water quality
and wetlands 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. 20 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. 221
Thus, again NCDOT's impacts analysis ignores the growth that construction of the
Bypass may induce in the Study Area in particular. The Corps 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 when the Bypass,
if constructed, increases accessibility.222 While this may be a conservative approach overall, and
is certainly conservative in terms of the Goose Creek watershed, it is likely this approach vastly
underestimates impacts in the Study Area.
Although there is some discussion of this likely phenomenon in the ICE analysis,", 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.224 The travel -
time savings used for this accessibility analysis, however, range from 0 to 10 minutes. While
this 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 2035.225 No
219 FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014, at 8 (Oct. 30, 2014), Attachment 2.
zm Id. at C 1 -31.
22' Hartgen Report 2013, at 16, Attachment 1 to SELC Jan. 6, 2014 Comments.
222 DSFEIS at E1 -7.
2" DSFEIS at C2 -203.
224 DSFEIS at C2 -244 (Map 14).
225
38

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. 2Y A previous draft of the DSFEIS suggested growth may migrate away from
downtown Monroe.227 Though NCDOT deleted this projection from the final draft of the
DSFEIS after the Conservation Groups brought attention to it in public meetings , 228 the Corps
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
Quality 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. 229
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, the Corps must require NCDOT to clearly and transparently examine and explain
these impacts before it can evaluate the permit application.
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. 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.
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
116 DSFEIS at E1 -87.
221 Compare NCDOT, Appendix A - Comments Since the Final EIS, Draft (June 2013), at 3, Attachment 55 to SELC
Jan. 6, 2014 Comments, with DSFEIS at Appendix A.
2zs 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.
229 E -mail from Chris Militscher, EPA, to Christy Shumate, NCDOT, RE: Monroe Connector /Bypass (R- 3329/R-
2559) Update and Documentation (Feb. 28, 2013), Attachment 57 to SELC Jan. 6, 2014 Comments; DSFEIS at CI-
95 (Memo from Alan Johnson, DWQ).
39

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 . „230
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 '231 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 . "232 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 impact their communities. Planners from the
Charlotte Mecklenburg Planning Board,233 the City of Monroe , 234 the Town of Stallings,235 and
Union County236 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. 237 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. 238 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 .239 The same planners expect growth
to slow throughout Union County if the Bypass is not constructed.244 Chris Plate, the Executive
Director of Monroe Union County Economic Development ( "MUCED "), reported similar
expectations. 241 These surveys of local planners, were simply dumped in to NCDOT's NEPA
analysis with no analysis of conclusions drawn. 242 NCDOT has given no indication as to how
230 See, e.g., Mecklenburg -Union Metropolitan Planning Organization, Resolution to Support Prompt ,fiction 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,
Resolution Opposing the Monroe Bypass Project (Mar. 24, 2014), Attachment 9 to SELC Apr. 8, 2014 Comments.
Town of Marshville, Resolution in Support of the Marshville Town Council in Support of the Alonroe Connector -
Bypass & Request to Expedite Project Construction (Mar. 4, 2013), Attachment 6 to SELC June 9, 2014 Comments.
231
232 See e.g., DSFEIS at A 1 -65, Comment No. 2 & 3.
233 DSFEIS, ICE Appendix A, regarding Charlotte- Mecklenburg Planning and Development.
234 Id. ICE Appendix A, regarding City of Monroe.
235 Id. ICE Appendix A, regarding Town of Stallings.
236 Id ICE Appendix A, regarding Union County.
237 Id. ICE Appendix A, regarding Town of Fairview.
238 Id. ICE Appendix A, regarding Town of Marshville.
239 Id ICE Appendix A.
240 Id. ICE Appendix A.
241 Id. ICE Appendix A, regarding MUCED.
40

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. "243 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.244 And publically, the MUCED has
dedicated itself to continuing to support Bypass construction, recognizing the project would
"bolster the county's attractiveness for logistics work. ,245 The MUCED also uses the Bypass on
its website to attract new business to the area. 246
Former President of the Union County Chamber of Commerce, Sharon Rosch6, 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, Rosche "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." 2 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 ,248 and noted that the region is experiencing growth in anticipation of
the Bypass, stating that developers have purchased land along the bypass footprint, specifically
in anticipation of a higher demand.249
242 Id. ICE Appendix A.
243 243 LandDesign, Union County Comprehensive Plan, at 11 (Jul. 2014), prepared for Union County, available at
http://www.co. union nc.us /Portals /0 /Plannin / lans /UnionCount FinalDra#tRe ort9 -22. df, Attachment 28.
244 Monroe -Union County Economic Development, Work Plan 2013 -15 (Jul. 2013), Attachment 58 to SELC Jan. 6,
2014 Comments.
245 Adam Bell, Monroe -Union County Economic Development ready for action, ROCK HILL HERALD ONLINE (Aug.
8, 2013), Attachment 59 to SELC Jan. 6, 2014 Comments.
246 Monroe Union County Economic Development, HigInvay Access (2013), Attachment 60 to SELC Jan. 6, 2014
Comments.
247 Heather Smith, Chamber resolution dra3ps fire from Bypass opponent, THE ENQUIRER JOURNAL (Mar. 6, 2013),
Attachment 61 to SELC Jan. 6, 2014 Comments.
2" Adam Bell, Despite hurdles, 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.
249 Heather Smith, Chamber resolution draws fire from Bypass opponent, THE ENQUIRER JOURNAL (Mar. 6, 2013),
available at http• / /www enquirermournal.com /news /local /xl942451769 /Chamber- resolution- draws - fire -from-
Bypass- opponent, Attachment 61 to SELC Jan. 6, 2014 Comments.
41

Indeed, Union County has begun planning for infrastructure to support the growth
occasioned by the Bypass. 250 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 Bypass's proposed
interchanges as well as residential development along the major feeder routes .25F 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. ,252
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 capacit5y from the City of Monroe
as a result of the Development anticipated with the Monroe Bypass. "2 3 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. "254 Yet these significant recognitions of impending
growth and associated pressure on water resources are not addressed in the NEPA analysis or
permit application, 255
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." 256 And the new Indian Trail
comprehensive plan estimates that Indian Trail's population will greatly increase by 2030, from
approximately 35,000 residents to 60- 80,000 residents, in a large part due to "the changes
brought by the planned Monroe Bypass . „257
In fact, Indian Trail officials so strongly believe in the Bypass's potential to drive growth
in Union County that in October 2413, the Indian Trail Town Council meeting hosted
presentations on the Bypass by NCDOT as well as three different pro - growth groups: MUCED,
"0 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 /0 /Plannine/ plans/ UnionCountyFina ]Draf}Ret)ort9- 22,pdf,
25' Black & 'Veatch, Comprehensive Water and Wasteivater 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.
2” Id. at ES -8.
211 Union County, Proposed FY2014 -2019 Union County Capital Improvement Program, at 35, available at
littp: / /www.co.union nc.us/ Portals /0/ Finance/ ProposedFY2014toFY2019UCCIP %2004032013ggqq.pdf,
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 SELL Jan. 6, 2014 Comments.
... Id at 45.
255 See FSFEIS at A2 -203 (ignoring SELC comments on this topic).
256 Mayor Michael L. Alvarez, Indian Trail, Facebook post (Oct. 9, 2013), Attachment 68 to SELC Jan. 6, 2014
Comments.
257 Heather Smith, Indian Trail plans for 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.
42

Union County Chamber of Commerce, and the Indian Trail Business Association.2 ' NCDOT
staff sat by as Pat Kahle, the new 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. 259 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. 260
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. "261 Though several NCDOT staff
were present and presented other information about the Bypass at the meeting, none made any
attempt to publically address or explore these beliefs either at the meeting or in the NEPA
analysis and permit application. 262
We appreciate the NCDOT "does not have the legal authority to control the beliefs,
statements, or resolutions developed by the public, organizations, or local government.' 263 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 publically address such
misconceptions with other projects when such information would help to move its project
forward .2 4
6. Contradictory Positions at the State Level
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 .265 And as noted, NCDOT's new project
258 Indian Trail Town Council, Minutes of Town Council (Oct. 8, 2013), Attachment 72 to SELC Jan. 6, 2014
Comments.
259 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,
26o Indian Trail Town Council, Oct. 22, 2013 Agenda (Oct. 22, 2013), Attachment 73 to SELC Jan. 6, 2014
Comments.
26' Monroe, Indian Trail snub bypass opponents, ENQUIRER JOURNAL (Oct. 12, 2013), Attachment 75 to SELC Jan.
6, 2014 Comments.
262 Indian Trail Town Council, Minutes of Town Council (Oct. 22, 2013), Attachment 73 to SELC Jan. 6, 2014
Comments.
z63 FHWA, Comment and Response Grid for SELC Letter dated June 9, 2014, at 7 (Oct. 30, 2014), Attachment 2.
264 See, e.g., NCDOT, Correction About Personal Information and the I -77 Managed Lanes Project (Jul. 29, 2014),
available at ' https://apps.ncdot.gov/iiewsreleases/details.aspx?r—t 0 144, Attachment 30.
165 Gov. McCrory's 25 Year Vision For North Carolina: Mapping Our Future, at 22 (Sept. 2014), available at
http://www ncdot. ov /ncvision25 /ncvision25. df, Attachment 31.
43

prioritization system relies on the base assumption that transportation infrastructure causes
growth.266 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. 267 This document highlights the Monroe Bypass as being "important or
critical" for growth and development in Union County and beyond.268 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.i269 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. "270 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. 271
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.
272
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
in securing transportation funding it did not matter that two opposing assessments of the growth
potential were presented in the different federal documents. 273
Even while the NEPA analysis was ongoing, NCDOT persisted in publically 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
z66 NCDOT, How NCDOT uses the TREDIS to Calculate Economic Competitiveness in the Strategic Prioritization
Process (Mar. 15, 2013), Attachment 27.
267 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 & Intergovernmental Relations Committee Oct. 2, 2013 Meeting, summary of recent statewide
planning documents, prepared by NCDOT staff, Attachment 78 to SELC Jan. 6, 2014 Comments.
2611 SELC comments Nov. 2012.
269 DSFEIS at Al -67.
2711 Id. at Al -67.
271 NC Board of Transportation Economic Development & Intergovernmental Relations Committee, Minutes of
Dec. 4, 2013 Meeting, Attachment 79 to SELC Jan. 6, 2014 Comments.
272 SELC Nov. 30, 2012 Comments, at 14.
273 DSFEIS, Appendix A at Al -73; FSFEIS at A2 -282.
44

analysis underlying this permit application. The Corps must require clarity on this issue, as it
cannot rely on the current analysis based on such a strongly disputed assumption.
B. Cumulative Impacts
The § 404(b)(1) Guidelines also require the Corps to consider secondary effects to the
aquatic ecosystem that may result for a project. 40 C.F.R. § 230.11(h). 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 the Corps must require
NCDOT to address before it can comply with its duty to evaluate fully 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. 274 The system would include sections of 1 -485 and the
stretch of U.S. 74 /1ndependence Boulevard inside the beltway. In a May 5, 2012 presentation
NCDOT explained that the Independence Boulevard HOT lanes would connect with the Monroe
Bypass .275 The HOT lanes on 1 -485 would also stretch 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 projects.276 NCDOT has stated that this project is
funded for construction within the next 10 years.
While we recognize that NCDOT has analyzed the I -485 widening to some extent,
recently available data demonstrate 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 2010,277
but it failed to address how these projects have evolved since that 2010 analysis. For example,
while NCDOT did consider the impacts of widening a five -mile stretch of I -485 from N.C. 16
(Providence Road) to U.S. 74,27$ the local MPO has expanded this project through several TIP
amendments in 2012.279 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
274 Ryan Pitkin, New 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 I /new- lanes-on-i-4 85-set-to-o en -b - end -of- earl,
Attachment 32; see also Tony Burbeck, Toll lanes on Independence Boulevard? (Nov. 17, 2014), WCNC, available
at htt : / /www.wcnc.com /sto /news /traffic /2014 /11/17 /toll- lanes- on -inde endence- boulevard /191874831,
Attachment 33.
271 Charlotte Fast Lanes Study: 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
(February 7, 2013), Attachment 97 to SELC Jan. 6, 2014 Comments.
27 FSFEIS at A2 -284 (citing Michael Baker Engineering, Indirect and Cumulative Effects (ICE) Quantitative
Analysis (April 2010), Appendix D ( "Other Federal Actions Summary")).
278 Michael Baker Engineering, Indirect and Cumulative Effects (ICE) Quantitative Analysis (April 2010), Appendix
D ( "Other Federal Actions Summary"), at 6.
279 MUMPO, MUMPO 2012 -2018 TIP Amendments (July 2013), available at http : / /www.crtpo.org /PDFs /TIP /2012-
2018/2012 -2018 TIP Amendments.pdf, Attachment 18 to SELC June 9, 2014 Comments.
45

Monroe Bypass. As such, the project will without doubt result in secondary impacts exacerbated
by the construction of the Bypass. NCDOT recognizes that the 1 -485 project has changed
significantly since it was analyzed for the purposes of this study, but it claims, without any study,
that these modifications do not significantly change how the 1 -485 project may directly or
indirectly affect land use in the FLUSA. ,280 Yet outside the Monroe Bypass NEPA analysis,
NCDOT itself has stated that it expects the I -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.281.
In addition to the HOT lanes, there are several other road projects that 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, the Corps 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. See 40 C.F.R. §
230.11(h).
Legacy Park
The Corps must also consider the secondary effects of the proposed Legacy Park
development, a proposed 5,000 -acre business park that would be directly served by the Monroe
Bypass. While the size of the development has varied since SELL first raised this issue to
NCDOT in 2012, 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, "282 but recently available NCDOT
planning documents demonstrate that, outside the NEPA process, NCDOT has continued to plan
with development of the site in mind.
For example, the site 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 of the Governor's 25 -Year Vision Plan. NCDOT's recent North Carolina
Transportation Network ( "NCTN ") planning efforts have also featured draft maps highlighting
the Legacy Park site's statewide importance. 283 In the draft materials, Legacy Park was marked
as one of only a handful of "potential logistics sites" available for development statewide, 284
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.285 In particular, Legacy Park
280 FSFEIS at Section 2.2, Appendix E2; FHWA, Comment and Response Grid for SELC Letter dated Jtme 9, 2014,
at 25 (Oct. 30, 2014), Attachment 2.
281 Id.
282 See, e.g., Michael Baker Engineering, Inc., Monroe Connector/Bypass indirect and Cumulative Effects
Quantitative Analysis Update, at 61 -62 (Nov. 2013).
283 NCDOT, North Carolina Transportation Network: Regional Meetings, at slide 24 (May 2014), Attachment 22
from SELC June 9, 2014 Comments.
284 Id.
"" Id, at slide 28,
46

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. 286 This designation is of particular
importance to the Bypass's NEPA evaluation because the STC program is NCDOT's latest effort
to update the SHC program, which has long served as a key aspect of the Bypass's stated
purpose and need .1, Similarly, CSX has noted that the Legacy site is one of the "best" in the
Charlotte region, 288
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.289 Instead, the Corps 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. 290 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.291 Regardless, NCDOT must provide a thorough analysis of the expected impacts.
C. Goose Creek
NCDOT's failure to consider cumulative impacts, as noted 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
the moratorium restricting the Goose Creek sub -basin from the Inter -Basin Transfer ( "IBT ")
between the Catawba River basin and the Rocky River basin . 292 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 lifting the moratorium.29 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.294 USFWS outlined suggestions of improvements
2116 Id
287 Id at slide 7.
2" NCDOT, Appendix D, Response to comments (DRAFT), at 9 (Response to Comment 20), Attachment 102 to
SELC Jan. 6, 2014 Comments.
2119 See, e.g., Michael Baker Engineering, Inc., Monroe Connector/Bypass Indirect and Cumulative Effects
Quantitative Analysis Update, at 63 (Nov. 2013).
240 See, e.g., SELC Jan. 6, 2014 Comments, at 46.
291 See, e -mail from Colin Mellor (NCDOT) to Scudder Wagg (Atkins), re: Response to USFWS 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,
292 See North Carolina Environmental Management Commission, Hearing Officer's Report (April 2013),
Attachment 109 to SELC Jan. 6, 2014 Comments; see also FSFEIS at A2 -287,
293 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.
294 Id.
47

to the SSWQMP that would better protect the heelsplitter. 295 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 . "296 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. 297
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,298 the HOT Lane projects
connect to the Bypass in Mecklenburg County, and thus are 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 the Corps's 404 duties require analysis of precisely such impacts.
NCDOT also relies too heavily on the SSWQMP to guarantee protection of 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.299
As noted by USFWS, however, the SSWQMP is insufficient to protect the Carolina
heelsplitter. 300 Similarly, NCDOT's claim that it will "strongly discourage" its contractors from
working in the Goose Creek watershed has no meaning. 301 Without an outright prohibition in the
contract, NCDOT's discouragement is inadequate. Yet no such prohibition is present in the
NEPA analysis, 302 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. 303
As such, the NCDOT has failed to provide sufficient information upon which the Corps
can comply with its duty to consider the secondary effects to the aquatic ecosystem that may
result from this project. 40 C.F.R. § 230.11(h). Similarly, the Corps must require NCDOT
provide a full analysis of these issues before the Corps can property meet its duty to evaluate
whether the project "U]copardizes the continued existence of species listed as endangered or
threatened under the Endangered Species Act ... or results in likelihood of the destruction or
adverse modification of ... a critical habitat." 40 C.F.R. § 230.10(b)(3)
295 id,
296 id.
297 See FSFEIS at A2 -287.
298 DSFEIS, Appendix A, Map 14, E1 -87.
299 DSFEIS at C2 -113.
300 Letter from Brian P. Cote, 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.
30' Biological Assessment for the Monroe Bypass (2013) at 68, available at
littp://www ncdot. ovl rojects /monroeconnector /download /DraftMonroeBA 102313. df.
302 See FSFEIS at A2 -288.
303 DSFEIS at PC -2.
48

III. NCDOT Has Not Analvzed the Imnacts of the Fullv Designed Proiect
The analysis of water duality is also incomplete. As noted in the EIS, the full project has
not yet actually been designed .304 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. 305 Instead, NCDOT states that it
regularly relies on what it considers to be "plausible estimates" rather than actual design plans.
3a6
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.
The Corps cannot issue a permit based on these approximations because, without full
project details, it will be unable to make the required findings under the § 404(b)(1) Guidelines.
Before the Corps can issue a § 404 permit it must "determine in writing the potential short -term
or long -term effects of a proposed discharge of dredged or fill material on the physical, chemical,
and biological components of the aquatic environment." Without a full analysis of the impacts
for the entire project, the Corps cannot make this determination. For example, the Corps is
required to "determine the nature and degree of effect that [a] proposed discharge will have,
individually and cumulatively." 40 C.F.R. § 230.11(c) (emphasis added). It will be impossible
for the Corps to make this determination at present because full details about the discharges
associated with the project are not yet known, and thus the cumulative impact cannot yet be
determined. Similarly, the Corps cannot yet make a proper determination as to the "cumulative
effects on the aquatic ecosystem." 40 C.F.R. § 230.11(g). The Corps should, thus, refrain from
considering the permit application until a comprehensive analysis of the entire, fully designed
project has been completed.
Further, this segmented approach to the permitting allowed 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.307 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." 308 We also note that, while generally future
modifications are expected 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 DWQ, the Corps, and NCDOT, the
impacts to streams from the Garden Parkway were greater in the permit application than they
311a DSFEIS at 3 -11 to 3 -12; FSFEIS at A2 -285.
3118 FSFEIS at A2 -285 to A2 -286.
306 1d.
3111 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 34 & 35.
3118 See e -mail from Brian Wrenn to Cyndi Karoly, June 9, 2010, Attachment 36; e -mail from Brian Wrenn to
Christy Shumate, Oct. 31, 2011, Attachment 37; e -mail from Brian Wrenn to Christy Shumate (June 22, 2010),
Attachment 38.
49

were in the NEPA document. 309 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. "310 As such, we strongly encourage the Corps to
require NCDOT to conduct quantitative water quality analyses for the proposal based on the
fully designed project, rather than a mere estimation, before the Corps can evaluate the permit
application.
IV. A § 404 Water Quality Certification Cannot Be Issued Because NCDOT Failed to
Provide Adequate Detail About Mitiy ion
Under the § 404(b)(1) Guidelines, the Corps must determine the compensatory mitigation
required for a § 404 permit, "based on what is practicable and capable of compensating for the
aquatic resource functions that will be lost as a result of the permitted activity."
40 C.F.R. § 230.93(a). In making its determination, the Corps must determine the "likelihood
for ecological success and sustainability, the location of the compensation site relative to the
impact site and their significance within the watershed." Id. Applicants for § 404 permits are
thus required to produce detailed mitigation plans for any unavoidable impacts to wetlands.
The permit application for the Monroe Bypass fails to document the intended mitigation
for the project. Neither the NEPA documents.nor the permit application includes a mitigation
plan for the project. While it is noted that mitigation credits have been purchased from EEP,311
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 agreed to provide mitigation at the time of this application.
Rather than furnishing any further detail about mitigation from the NCEEP program, the
permit application simply refers to a letter from NCEEP dated June 24, 2010.312 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. 313 The permit assures this letter 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. 314
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.
'0' Meeting Minutes, Meeting between NCTA, DWQ, USAGE (Nov. 22, 2011), Attachment 107 to SELC Jan. 6,
2014 Comments,
310 E -mail from Monte Matthews, USACE, to Christy Shumate, NCDOT (Nov. 30, 2011) Attachment 108 to SELL
Jan. 6, 2014 Comments.
"' DSFEIS C1 -1, C1 -2.
M2 Permit Application at 24.
317 Permit Application at 24.
311 See id
50

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
regarding mitigation in the permit application for the Corps to grant a 404 § permit. If NCDOT
wishes to proceed with the project, it must first determine the amount of mitigation required. As
noted above, NCDOT's submitted project plans are based only on what it considers "plausible
estimations," rather than true project design. 315 The agency has not fully analyzed the actual
impacts on water resources this proposed project would have. As such, it is currently unclear
exactly what amount of mitigation required.
As a second step, if NCDOT intends to rely on EEP for mitigation, 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 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. 316 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? 17
V. The Permit Should Be Denied as Contrary to the Public Interest
Any application for a Section § 404 permit is subject to the Corps's public interest review
requirements set forth at 33 C.F.R. § 320.4. "The decision whether to issue a permit will be
based on an evaluation of the probable impacts, including cumulative impacts, of the proposed
activity and its intended use on the public interest." 33 C.F.R. § 320.4(a)(1). This evaluation
requires a balancing test, in which "[t]he benefits which reasonably may be expected to accrue
from the proposal must be balanced against its reasonably foreseeable detriments." Id, In
making this decision, the Corps must consider all relevant factors, including:
conservation, economics, aesthetics, general environmental concerns, wetlands,
historic properties, fish and wildlife values, flood hazards, floodplain values, land
use, navigation, shore erosion and accretion, recreation, water supply and
conservation, water quality, energy needs, safety, food and fiber production,
mineral needs, considerations of property ownership and, in general, the needs
and welfare of the people.
Id. Every public interest review must also consider these general criteria:
(i) The relative extent of the public and private need for the proposed structure
or work;
315 Id.
316 Michael Ellison, Ecosystem Enhancement Program Director, NCEEP Budget Update and NCDOTINCEEP
Operational Process Improvement, presentation to the North Carolina Department of Transportation (June 4, 2014),
Attachment 39.
"' See Permit Application at 24.
51

(ii) Where there are unresolved conflicts as to resource use, the practicability of
using reasonable alternative locations and methods to accomplish the objective of
the proposed structure or work; and
(iii) The extent and permanence of the beneficial and/or detrimental effects
which the proposed structure or work is likely to have on the public and private
uses to which the area is suited.
33 C.F.R. § 320.4(a)(2).
The Corps's public interest regulations explicitly recognize the importance of wetlands to
the public interest, stating that "[m]ost wetlands constitute a productive and valuable public
resource, the unnecessary alteration or destruction of which should be discouraged as contrary to
the public interest." 33 C.F.R. § 320.4(b)(1). Accordingly, the regulations provide that "[n]o
permit will be granted which involves the alteration of wetlands identified as important [to the
public interest] unless the district engineer concludes ... that the benefits of the proposed
alteration outweigh the damage to the wetlands resource." 33 C.F.R. § 320.4(b)(4). See
Shoreline Assoc. v. Marsh, 555 F. Supp. 169, 179 (D. Md. 1983) (upholding Corps's denial of
permit based on its finding that wetlands were important to the public interest).
Applying the Corps's public interest analysis, the permit should be denied. In addition to
its direct impacts to wetlands and stream impacts, the Monroe Bypass would have significant
adverse impacts to conservation, economics, aesthetics, general environmental concerns, land
use, water quality, and fish and wildlife — all relevant factors under the Corps's public interest
regulations. When compared with the proposed project's lack of necessity and utility, outlined
above, the Corps cannot fund the public interest weighs in favor of granting the permit.
A. Other Environmental Impacts
In addition to the significant impacts to water resources detailed above, the proposed
Bypass would also fragment wildlife habitat and affect approximately 450 acres of forest. As
detailed in our earlier comments, the EIS fails to provide a comparative analysis of air quality
impacts, including impacts from Mobile Source Air Toxics, for the various alternatives. Nor is
there a comparative analysis of the impacts that the different alternatives will have on wildlife
from habitat fragmentation and direct construction impacts.
The Corps should also require NCDOT to provide a more comprehensive analysis and
plan regarding fragile wildlife such as the the northern long -eared bat (Myotis septentrionalis)
and the Savannah lilliput (Toxolasma pullus). As you know, the Corps is required to consider
impacts to all wildlife. 40 C.F.R. § 230.32. Yet the permit application and EIS do not provide
sufficient information for the Corps to make this determination. USFWS has been clear that both
species currently await impending listing as endangered species under the Endangered Species
Act ( "ESA ") and are likely to be put at further risk by construction of the Bypass.
USFWS has expressly warned NCDOT that both species may be affected by construction
of the Bypass. The range for the northern long -eared bat includes the project study area. 318
318 Ju
52

USFWS has been studying a listing petition for the species since 2010, finally issuing a proposal
to list the species as endangered in October 2013.39 Major threats to the bat include habitat
destruction and disturbance to hibernating and summer habitat, both of which are threatened by
construction of a new - location highway through the organism's habitat.320 As such, USFWS
recommended that NCDOT should evaluate the project's likely impacts on the species to avoid
an inevitable later consultation and potential project shutdown. 321 Yet no such evaluation was
documented in NCDOT's review of the project; instead, NCDOT states only that it is "workin
closely" with USFWS to understand the impact a potential listing would have on construction,'22
and commits only to working with the agency if such a listing occurs. 323
NCDOT has similarly ignored its duty to analyze the project's impacts on the Savannah
lilliput, a mussel species known to exist in Union County. 324 USFWS has expressly warned
NCDOT that the species is found in the South Fork Crooked Creek, which will be directly
affected by the project.325 As USFWS has explained to NCDOT, the species is currently
petitioned for listing as a federally protected s ecies, and there is strong evidence to indicate that
this listing is likely within the next few years.26 While NCDOT recognizes the need to do
something to protect the mussel from construction impacts, it has not documented the expected
impacts, nor has it detailed any specific protection measures which will be undertaken. As such,
the Corps must require that NCDOT supplement its permit application with an evaluation of the
various project alternatives' impacts on these organisms and specific protective measures before
proceeding with the project.
A. Other Community Impacts
The proposed Bypass would also have significant community impacts. NCDOT has
documented that it would displace 95 households, 47 businesses, three churches, and 499 acres
of active agricultural land, and would impact nine neighborhoods. Other alternatives, such as a
suite of improvements to the existing transportation network in the U.S. 74 Corridor, would
likely have significantly fewer community impacts, yet NCDOT has never fully evaluated these
319 See Georgia Parham, U.S. Fish and Wildlife Service Proposes Endangered Status for the Northern Long -eared
Bat; Listing Not Warranted for Eastern Small- footed Bat, press release (Oct. 17, 2013), available at
http:llwww fwsgov/ midwest/ endangered / mammals/ n1ba/NewsReleasel7Oct2Ol3.html, Attachment 7 from SELC
Apr. 8, 2014 Comments; 12 -Month Finding on a Petition To List the Eastern Small - Footed Bat and the Northern
Long -Eared Bat as Endangered or Threatened Species, Listing the Northern Long -Eared Bat as an Endangered
Species, 78 Fed. Reg. 61046 (Oct. 2, 2013).
320 Georgia Parham, U.S. Fish and Wildlife Service Proposes Endangered Status for the Northern Long -eared Bat;
Listing Not Warranted for Eastern Small- footed Bat, press release (Oct. 17, 2013), available at
13ttp:llwww fws.gov /midwest/ endangered/ nianimals/ nlba /NewsRelease170ct2Ol3.httul, Attachment 7 from SELC
Apr. 8, 2014 Comments.
32' Id
3z2 Permit Application at 18.
323 See FSFEIS at A2 -310.
324 USFWS, Species Profile: Savannah lilliput (Toxolasma pullus), available at
http:Hecos fws.g ov/ speciesProfile /profil_e /speciesProfile .action ?spcode —F020, Attachment 8 from SELC Apr. 8,
2014 Comments,
325 E -mail from Marella Buncick, USFWS, to Jennifer Harris, NCDOT, George Hoops, FHWA, et al., October Draft
of the BA (Nov. 1, 2013), Attachment 6 from SELC Apr. 8, 2014 Comments.
326 Id.
53

impacts, as detailed above. Accordingly, NCDOT must undertake a comprehensive study of the
community impacts of the various alternatives outlined above.
B. NCDOT Has Thwarted the Public Decision - making Process in its Promotion
of the Monroe Bypass
Additionally, NCDOT has thwarted the public decision making process in its pursuit of
the Bypass. Promoting the pre - determined Bypass project, NCDOT has colluded with, and even
funded, the project contractor to create a bogus Bypass support group espousing views contrary
to those stated in the EIS. As noted above, NCDOT has continued to perpetuate misconceptions
about the Bypass in order to "sell" it to local residents and has refused to correct frequent
misunderstandings and misstatements by public officials and other community leaders. In so
doing, NCDOT has used the public process to propagate a series of contradictions and untruths
that obscure the true purpose and impact of the Bypass and prevent any meaningful public
review.
1. Truncated public involvement process
The Corps should be particularly troubled by the process NCDOT used in rushing
through final NEPA approval of this project, bypassing public comment. Federal regulations
provide that a combined FEIS/ROD is not appropriate where "there are significant new
circumstances or information" that bear on the proposed action. 42 U.S.C. § 4332a(b). Such
"significant" information was included with the FSFEIS though it had never before been released
for public comment, including new socio- economic data showing that growth in Union County,
previously used to justify the Bypass, is now forecast to be considerably less than previously
anticipated. The new forecasts have significant implications for the purpose of the project, the
analysis of alternatives, and the likely impact of the Bypass in the study area. It was therefore
essential that NCDOT provide the public resource agencies, and local and state decisionmakers
with this information before making a final decision in order to comply with the NEPA's core
purpose as a "democratic decisionmaking tool." N.C. Wildlife Fed'n v. NCDOT, 677 F.3d 596,
601 -02 (4th Cir. 2012) (quoting Or. Natural DesertAss'n v. Bureau of Land Mgmt., 625 F.3d
1092, 1121 n.24 (9th Cir.2010)).
In May 2012, the United States Court of Appeals for the Fourth Circuit concluded
NCDOT contravened NEPA's public disclosure requirements in relation to this very project
when, during the public comment period, it falsely characterized the assumptions behind the
socio- economic data it relied upon. NC Wildlife Fed'n, 677 F.3d at 602 -03. Here, NCDOT has
once again failed to provide the public and resource agencies with timely access to all significant
information, disclosing significant new information only after public comment has closed.
NCDOT's actions in this instance are even more egregious, as it has withheld data showing a
dramatic shift in socio - economic and traffic volume projections — shifts that fully destabilize
NCDOT's assumptions supporting the project analysis -- until after a decision was made.
Significant new growth trends never presented for public comment
As we have noted, data over the last several years have demonstrated that Union County
is no longer experiencing the growth boom used to justify construction of the Bypass in the
54

initial EIS .12' As highlighted above, the latest data, compiled by the CRTPO, clearly document
the significant changes in observed and projected growth patterns .328 These data demonstrate
that Union County is not growing at its previous rate; instead, NCDOT now admits that the
growth originally projected to occur by 2030 is not expected to occur until at least a full decade
later .329 Even more, NCDOT now recognizes that the growth that is occurring in the Metrolina
region is concentrating away from the Bypass study area and that these trends are expected to
continue into the future. 330
Despite general knowledge of these extreme shifts in area demographics, NCDOT failed
to consider or present to the public up -to -date socio- economic data for the region in its NEPA
analysis until well after the public comment period closed.
This newly projected shift in expected location of growth conflicts dramatically with
what NCDOT has presented previously and set out for public comment. The data undercut
NCDOT's impacts analysis, which is premised on the now- unsupported conclusion that overall
growth in the Study Area will not change as a result of constructing the Bypass, but instead
expected growth will merely shift toward eastern Union County.331 Now that growth is expected
to concentrate in an entirely separate section of Union County, NCDOT must consider how
construction of the Bypass may change those growth patterns.
Even more, as discussed in detail above, the new data undercut the very need for a
Bypass. Many Union County residents and statewide officials have long supported the Bypass
because they believe the project will spur economic development in more rural, more
impoverished eastern Union County. In fact, these expectations underlie much of the Bypass's
support for the project from eastern Union County towns like Marshville and even elected and
other high -level officials at the State level. The town of Marshville, for example, passed a pro -
Bypass resolution in March 2013 in support of the Bypass in part because it would "create
hundreds of jobs" in the community. 332 Marshville Mayor Franklin Deese has stated that the
project will spur "noticeable development and growth for Marshville and points cast.""' And, as
we have documented in the past, many Board of Transportation officials and NCDOT staff have
characterized the Bypass as being important to bringing jobs to economically depressed
communities like eastern Union County and Anson County. 334 If this shift in growth is no longer
anticipated, it may have a significant impact on the project's support locally and statewide.
327 See, e.g., SELC Jan. 6, 2014 Comments at 12 -13.
32s CRTPO, Draft 2040 Metropolitan Transportation Plan, Chapter 9 (Feb. 2014), available at
http:ll crtpo .orWPDFsIMTP /2040IReport/Draft Ch9 Population Land Use.0 Attachment 3 from SELC June 9,
2014 Comments; see also Appendix E -3.
329 FSFEIS at Appendix E -3 -5.
330 FSFEIS at Appendix E -3. _
33' DSFEIS at Chapter 4.
332 Town of Marshville, Resolution in Support of the Marshville Town Council in Support of the Monroe
Connector- Bypass & Request to Expedite Project Construction (Mar. 4, 2013), Attachment 6 from SELC June 9,
2014 Comments.
333 Tenikka Smith, Marshville Mayor remains staunch supporter of Monroe Bypass (Dec. 12, 2013), Attachment 7
from SELC June 9, 2014 Comments.
33a See, e.g., SELC Jan. 6, 2014 Comments at 47.
55

Yet despite the significant changes in growth expectations for the study area, NCDOT
has failed to put forward any analysis of CRTPO's recent socio - economic projections for public
comment. Instead, NCDOT provided a new analysis of CRTPO's latest projections as an
addendum to the combined FSFEIS /ROD, giving the public no opportunity for comment on its
comparison of the outdated socioeconomic projections used in this NEPA analysis to CRTPO's
updated projections.335 NCDOT claims it was unnecessary to publically present its analysis and
dismissal of the CRTPO's updated socio- economic forecasts, for example, because CRTPO
provided a public comment period on the data. 336 CRTPO's comment period is certainly not
satisfactory. Even the savviest individual interested in the Bypass cannot be expected to be
attuned to a comment period offered by an unrelated agency regarding a general metropolitan -
area -wide planning effort. Additionally, CRTPO's comment period never allowed the public to
analyze or comment on the conclusions NCDOT has drawn regarding the data.
Yet NCDOT's conclusions require public scrutiny. NCDOT claims it evaluated how
induced growth estimates might change if the 2014 Projections were used, outlining its
conclusions that the accessibility analysis would be unchanged and that its analysis remains valid
because the Bypass's induced growth, indirect effects, and cumulative effects are likely to be
generally lower if the agency uses the updated 2014 projections.337 The reasoning behind this
brief and cursory analysis is highly questionable. Furthermore this explanation — that generally
impacts would be less fails to account for the positive impacts of the Bypass such as
economic growth.
2. Misleading propaganda
Public records demonstrate that NCDOT has actively and financially supported a group
espousing views completely contradictory to those embraced in the NEPA process. We were
deeply troubled to learn that outside of the NEPA process, NCDOT has been actively
perpetuating a picture of the Bypass's impacts and effect that is entirely at odds with the
information it has presented within the NEPA process.
For example, public records obtained from NCDOT demonstrate that much of the
purportedly local organized efforts in support of the Bypass were in fact orchestrated by the
project contractor, and were initially funded by NCDOT. Specifically, a portion of NCDOT's
demobilization payments to the contractor in fact went to directly to fund contractor staff time
spent creating and promoting a supposedly "grassroots" effort to push the Bypass forward,
focused on delivering the message that the project will address current congestion on U.S. 74 and
bring dramatic growth and development to Union County, a message which, as we have noted
above, runs counter to NCDOT's analysis within the NEPA process. We understand that once we
brought this grave deception to the public's attention, and after a conversation on the matter
between Division 10 Engineer Louis Mitchell and an SELC attorney, NCDOT asked the
contractor to refund some of this financial support. This does little to cure the fact that such
support was offered in the first place. The damage of the misinformation disseminated with
... FSFEIS Appendix E3.
336 FH WA, Comment and Response Grid for SELL Letter dated Jayne 9, 2014, at 8 (Oct. 30, 2014), Attachment 2.
337 FSFEIS at Section 2.2, E3 -12 — E3 -15, Appendix E2; FHWA, Comment and Response Grid for SELL Letter
dated June 9, 2014, at 10 (Oct, 30, 2014), Attachment 2.
56

NCDOT funding has been done, and NCDOT has done nothing to publicly address this
misinformation it helped disseminate.
NCDOT also failed to address similar misinformation spread by Union County Chamber,
which worked together with the contractor to promote the Bypass. In February 2013, the
Chamber sent letters to local stakeholder groups across the county urging them to pass a
resolution in support of expediting the Bypass. 338 In these letters, the Chamber asserted the
Bypass was essential to Union County's economic growth .339 Each letter included a sample
resolution expounding on the specific ways in which the Bypass would spur growth. Among
other claims, the resolution states that the Bypass would support and promote existing local
businesses, attract new businesses to Union County by providing better access to the Port of
Wilmington and a better quality of life, and encourage student population rowth at Wingate
University, ultimately "creat[ing] hundreds of jobs in [the] community." 34 In public discussions
of the resolution, the Union County Chamber explained that "there is a definite link between the
bypass and economic development. "341
Once we learned of this effort, SELC wrote a letter to Secretary Tony Tata drawing
NCDOT's attention to the many inaccuracies in the Chamber's draft resolution and asking that
NCDOT set out clearly the purpose and likely impact of the project so as to address the deep
misunderstandings about the nature of the project which persist in throughout Union County, as
demonstrated by the resolution. 342 SELC included a copy of the Chamber's resolution annotated
to demonstrate the dramatic inconsistencies between the transportation agencies' and Chamber's
statements regarding the Bypass's likely impacts and effects.3 4 3 Even after SELC demonstrated
that the claims made in the Chamber's resolution were in direct contrast to the information in the
NEPA documents and that they were being widely disseminated, NCDOT failed to respond until
eight months later in the DSFEIS, and even then the response was simply buried in an appendix
as a response to comments. In the meantime, the Union County Chamber of Commerce
continued to publically promote the contradictory image of the Bypass outlined in the resolution
which was passed by eight separate communities. No affirmative action has ever been taken by
NCDOT to publicly address the prevalent misunderstandings about the Bypass.
"' See, e.g., Letter from Sharon Roche, President, Union County Chamber of Commerce, to Dr. Mary Eillis,
Superintendent, Union County Public Schools (Feb. 28, 2013), Attachment 203 to SELC Jan. 6, 2014 Comments;
County chamber pushing Bypass, THE HOME NEWS (Mar. 14, 2013), Attachment 10 to SELC Jan. 6, 2014
Comments; see also Heather Smith, Chamber presses for DOT action on Bypass, THE ENQUIRER JOURNAL,
available at http://www.enquireriournal.com/ news /local /xl94245 1 2 1 5 /Chamber- presses - for - DOT - action -on-
Bypass, Attachment 202 to SELC Jan. 6, 2014 Comments.
339 See, e.g., Letter from Sharon Roche,,President, Union County Chamber of Commerce, to Dr. Mary Eillis,
Superintendent, Union County Public Schools (Feb. 28, 2013), Attachment 203 to SELC Jan. 6, 2014 Comments.
340 Id,
34 Heather Smith, Chamber presses far DOT action on Bypass, THE ENQUIRER JOURNAL, available at
littv://ww-w.enquirermournal.com/news/locaf/xl 942451215/Chamber- presses - for - DOT - action -on- Bypass,
Attachment 202 to SELC Jan. 6, 2014 Comments; see also Bypass resolution gains steam despite protests, UNION
COUNTY WEEKLY (Apr. 1, 2013), available at htt : / /www,unioncoun weekl .com /news /2013 /0416 ass -
resolution- gains- steam - despite - protests /, Attachment 204 to SELC Jan, 6, 2014 Comments.
342 Letter from Kym Hinter, SELC, to Gen. Anthony Tata, NCDOT (Mar. 6, 2013), Attachment 3 to SELC Jan. 6,
2014 Comments.
343 Annotated Resolution, Attachment 4 to SELC Jan, 6, 2014 Comments.
57

throughout the NEPA process, NCDOT has long been acutely aware of the public confusion.
NCDOT's knowledge of the common public misconceptions about the Bypass makes the
agency's decision to continue to promote a false image of the proposed Bypass, and otherwise
remain silent rather than address misleading statements, all the more duplicitous.
3. Community apposition to the Bypass
While NCDOT has been keen to support, and even fund, groups setting forward
resolutions in favor of the Bypass based on false and misleading information, it has completely
ignored any voices asking for alternative solutions. Many local stakeholders have begun to
vocally call for alternatives to the Bypass, recognizing that the Bypass will not, in fact, fix
current congestion issues on U.S. 74 and that the project has never been intended benefit local
drivers. 356 Given the high cost of the Bypass, these stakeholders have begun to question if the
money might be better spent.
For example, in a recent resolution the Town of Weddington resolved that "prudent
decision makers should focus on the most expedient and cost effective solutions for
transportation and consider improvements to existing roads which yield a higher cost benefit."
A resolution from Hemby Bridge recognizes that "there are other viable alternatives or solutions
to address any current or growing traffic congestion on U.S. Highway 74 in Union County. "358
Similarly, the town of Mineral Springs resolved to "encourage[] the NCDOT to research,
consider, and implement lower -cost alternative to the Bypass that will provide more effective
solutions to current traffic congestion problems on US - 74. "3s9 The Village of Marvin adopted
nearly identical language pushing for alternatives to the Bypass which would actually address
current congestion on U.S. 74.36
These resolutions demonstrate both a public outcry for a solution to current levels of
congestion on U.S. 74, and a determination to spend transportation resources wisely. Other local
elected officials such as Former Mayor of Stallings Lynda Paxton, 361 Former Indian Trail
356 See, e.g., Board of Alderman, Town of Hemby Bridge, Resolution of Opposition to the Construction and
Location of the Monroe Connector Bypass (June 27, 2013), Attachment 205 to SELC Jan. 6, 2014 Comments;
Mayor Walker F. Davidson, Town of Weddington, Town of Weddington Resolution Acknowledging Support for
Alternatives to the Monroe Bypass (July 8, 2013), Attachment 206 to SELC Jan. 6, 2014 Comments; Mayor
Frederick Becker III, Town of Mineral Springs, Resolution Expressing Support far Alternatives to Construction of
the Monroe Connector /Bypass (Sept. 12, 2013), Attachment 207 to SELC Jan, 6, 2014 Comments; Mayor Pro Tern
Anthony J. Burman, Village of Marvin, A Resolution Expressing Support for Alternatives to Construction of the
Monroe Connector /Bypass (Nov. 12, 2013), Attachment 208 to SELC Jan. 6, 2014 Comments; Letter from Rick
Becker, Mayor of Mineral Springs, to Sec. Tony Tata, NCDOT (Sept. 24, 2013), Attachment 209a to SELL Jan. 6,
2014 Comments.
357 Mayor Walker F. Davidson, Town of Weddington, Town of Weddington Resolution Acknowledging Support for
Alternatives to the Monroe Bypass (July 8, 2013), Attachment 206 to SELL Jan. 6, 2014 Comments.
ass Resolution of Opposition to the Construction and Location of the Monroe Connector Bypass, Hemby Bridge
(June 27, 2013), Attachment 205 to SELC Jan. 6, 2014 Comments.
359 Mayor Frederick Becker II1, Town of Mineral Springs, Resolution Expressing Support for Alternatives to
Construction of the Monroe Connector /Bypass (Sept. 12, 2013), Attachment 207 to SELC Jan. 6, 2014 Comments.
360 Mayor Pro Tem Anthony J. Burman, Village of Marvin, A Resolution Expressing Support for Alternatives to
Construction of the Monroe Connector /Bypass (Nov. 12, 2013), Attachment 208 to SELC Jan. 6, 2014 Comments.
161 See, e.g., Stallings Mayor Lynda Paxton, website, Attachment 209b to SELC Jan. 6, 2014 Comments; Mayor
Lynda Paxton, Facebook post (Nov. 3, 2012), Attachment 210 to SELC Jan. 6, 2014 Comments; Mayor Lynda
1

Councilman David Waddel1362 and Mayor Libby Long of Fairview363 have voiced similar
concerns. Despite this widespread call for alternatives, NCDOT failed to even acknowledge the
resolutions in the DSFEIS, and did not include the resolutions in the NEPA analysis until it was
publically brought to the agency's attention. We note that NCDOT has recently stated to
interested parties that it did not receive copies of these resolutions, but this is simply not true . 364
4. The Monroe Bypass proposal is a poor use of state transportation
funding
As noted above, the Bypass is also mired in financial uncertainties which the Corps must
factor into its public interest determination. North Carolina's substantial shortfall in
transportation funding — a shortfall of nearly $60 billion over the next decade 365 — makes it
increasingly clear that available funding must be prioritized for only the most meritorious
projects and as such, NCDOT should reconsider committing such significant resources to the
construction of this expensive, unpopular and destructive Bypass when less costly and more
effective alternatives are available.
The estimated $838 million Bypass will be funded primarily through an annual
appropriation, saddling taxpayers with debt for the next several decades. And taxpayers may be
burdened with even higher debt if the toll road does not live up to expectations. Yet as detailed
above, the financial plan behind the project is deeply flawed and significantly outdated. The cost
of the road is likely to increase as well, as NCDOT is engaged in ongoing negotiations regarding
an escalation price with the project contractor. 366 The constructor cost may further escalate due
to recent legal proceedings in which Boggs Paving, the local arm of the Bypass contractor, as
well as several of its employees and a subcontractor have all pled guilty in a major federal fraud
scheme involving the Bypass .367 As noted, NCDOT has offered no statement as to how the
guilty pleas by the project contractor's local arm may affect the project cost.368
Paxton, Facebook post (Sept. 24, 2012), Attachment 213 to SELC Jan. 6, 2014 Comments; Mayor Lynda Paxton,
Let's part transportation planning in perspective, Letter to the Editor, UNION COUNTY WEEKLY (Nov. 9, 2012),
Attachment 212 to SELC Jan. 6, 2014 Comments.
362 See, e.g., Sharon Roberts, 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.
363 Town of Fairview, Facebook post (Oct. 8, 2013), Attachment 214 to SELC Jan. 6, 2014 Comments; Town of
Fairview, Facebook post (Oct. 2, 2013), Attachment 215 to SELC Jan. 6, 2014 Comments.
764 See, e.g., Letter from Mayor Frederick Becker, III, mayor of Mineral Springs, to Secretary of Transportation
Anthony Tata (Sep. 23, 2013) Attachment 209a to SELC Jan. 6, 2014 Comments; see also e-mail from Amy S.
McCollum, Town Administrator for the Town of Marvin, to Secretary of Transportation Anthony Tata, NCDOT
(July 15, 2013), Attachment 217 to SELC Jan. 6, 2014 Comments.
361 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 I from SELC
June 9, 2014 Comments.
366 See discussion, at (V)(B)(6) above.
367 US v. Boggs Paving, Inc., Bill of Indictment, No. 3:13CR204_MOC -DSC (W.D.N.C. Jul. 25, 2013), Attachment
9; Boggs Paving official pleads guilty to federal charges (Jul, 22, 2014), ENQUIRER JOURNAL, available at
http: / /www.enguireriournal.com /news /x l43264263/Boi4gs- Paving- official- pleads- .euitty -to- federal - charges,
Attachment 10; U.S. Attorney, Former Chief Financial Officer for Boggs Paving, Inc. Pleads Guilty in Connection
with $87 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- pavin. .g -ine.- pleads- guilty-

These issues present significant concerns regarding the project cost. By contrast,
NCDOT has not shown any real public need for the project as envisioned and has refused to
consider other less expensive alternatives. As laid out in these comments, the agency has failed
to demonstrate a purpose and need for the project and has made no convincing case that
alternatives, such as upgrades to the existing U.S. 74 corridor, would not be sufficient to satisfy
transportation needs in the project area. Despite the lack of need; NCDOT has insisted on
pursuing a project alternative which would result in hundred of residential relocations in several
neighborhoods, and will displace nearly 40 local businesses, in addition to significant impacts on
water resources and important wildlife habitat. In short, this project fails to meet the Corps'
public interest test on many grounds.
As outlined above we have substantial concerns about the issuance of a § 404 Clean
Water Act permit at this time. The permit application and NEPA documents do not satisfy the
404(b)(1) guidelines. If NCDOT wishes to move forward with this project, the Corps must
require NCDOT to pursue a Supplemental EIS. In particular, NCDOT must fix the deficiencies
with the traffic forecasts and growth projections documented above. After addressing these
significant flaws underlying its analysis, NCDOT must then supplement its NEPA analysis with
a particular focus on project alternatives, as well as indirect and cumulative impacts.
We appreciate the opportunity to express these concerns in this letter. In light of the
scope of our concerns about this project, we would be happy to meet to further discuss these
issues with you in person.
in- connection - with -87- million - fraud - scheme - involving_ - government- funded - construction- projects, Attachment 11;
Blake Hanson, Boggs Paving vice president pleads guilty to fraud (Jul. 24, 2014), WSOCTV, available at
http://www.wsoctv.com/news/news/local/bo s avin -vice resident- leads- uil - fraud /n m f/ Attachment 12;
Kathryn Burcham, Paving company facing federal fraud charges recently awarded multimillion - dollar contract (Jul.
26, 2014), WSOCTV, available at bttp://www.wsoctv.com/news/news/local/pavin -company-facing-federal- fraud-
charizes-reccnt/nY5K4/1 Attachment 13; Elizabeth DePompei, Fourth paving company executive pleads guilty in
federal fraud case (Aug. 5, 2014), CHARLOTTE OBSERVER, available at
http : / /www.r,harlotteobserver.com /2014/08 /0415086366 /fourth - paving company- executive html #.0 3wIUIOWHt,
Attachment 14; Kathryn Burcham, 5 indicted in alleged scheme to defraud the government in paving contracts
(Aug. 20, 2014), WSOCTV, available at htt : / /www.wsociv.cotn/news /news /local /5- indicted -alle ed- scheme-
defraud- government- pavin/nZTZx/, Attachment 15; Michael Gordon, 'Drew' Boggs, paving company CEO, to
plead guilty Thursday (Aug. 26, 2014), CHARLOTTE OBSERVER, available at
httoa /www.charlotteobserver.com/ 2014 /08 /26/ 5131242 /drew- boggs- paving- ceo- toolead html #.0 3WTO10VAg,
Attachment 16; 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 .coin/2014 /07 /23/boss- hog -good- old -boys-
decide- hoodwink- uncle -sam- road - contracts /, Attachment 17; Michael Gordon and Steve Harrison, Boggs Paving
CEO pleads guilty in minority contractor fraud (Aug. 28, 2014), CHARLOTTE OBSERVER, available at
http://www.charlottcobserver.com/2014/08/28/5134655/bo s- avin -ceo- leads- uilt .litml #.VADmwOIOUnU,
Attachment 18; Heather Smith, Drew Boggs pleads guilty to tivo felonies (Aug. 28, 2014), ENQUIRER JOURNAL,
available at hUp: / /www.enquireraournal.com /news /local /xl788471605/Drcw- Boss- pleads- guilty -to- two - felonies,
Attachment 19.
sea See, e.g., Steve Harrison, NC DOT chair won't discuss Boggs Paving contract (Oct. 7, 2014), CHARLOTTE
OBSERVER, available at http:/ /www. charl otteobserver .com /2014/10/07/5226728/nc- dot- cliair- wont- discuss-
bogas html #.VDUygO IOwnU, Attachment 20.
62

Sincerely,
Kym Hunter
Staff Attorney
M, ry
Kate Asquith
Associate Attorney
cc:
General Anthony Tata, Secretary, NCDOT
Clayton Sommers, NCDOT
Jennifer Harris, NCDOT
Carl Pruitt, USACE
Amy Chapman, NCDWR
Alan Johnson, NCDWR
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.
63