20181598 Ver 1_Environmental Impact Statement Comments_20160302

SOII"I't-IGIZN ENVIRONIvILNTAL LAW CENTF,R
Telephone [phone] GOl WEST ROSEMARY STftEET, SUITE 220 Facsimile 919-929-9421
CHAPEL FIILL, NC 2751G2356
Februarv Z0. _'O15
John }. Sullivan, lll. PE
Division Administrator
Pederal I lioh���ay Administratiun
310 New Bem Avcnuc. Suite d10
Raleigh, NC ?7601
Richard ] Iancock, PE
M anager
Pruject Development and Environmental Analysis Branch
NC Deparunent of"�ranspoitation
1�48 Mail ServiceCenter
Raleigh. NC 27699
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Re: Comments on Final F,nvironmental Impact Statement for Havelock B}'pass
Dear Mr. Sullivan snd Mc Flancock:
On behalPof the Sierra Club and Sound Rivers, the Southern Gnvironmental Law Center
submits the attached comments on the �ibove-referenccd Final Environmental Impact Statement
("FEIS'�), prepared by the NorU� Carolina Department of Transportation ('NCDOT��) and the
Fe�eral I liehway Administration ("FI I�i'A") (colleciively, thc'`Trinsportation Aocncies" or
"Agencics"). Thc PCIS analyzes thc imnacts of the proposed altern�tives for ll�e Havelock
Bypass ("RYpass" or "highwav, ").
Our commen[s identif�- � numbcr of issues related to the proposed [3yp�ss tha[ we believe
reyuire si�ni(ic�ntly greater analysis to complv «i[h thc National I:nvirunmental Policy /�ct
("NF.Pn�') and oLher federal and sta[c la�vs prior lo the issuance of the Record of Dccision
("ROD") �nd potential permitting oPthe project, Wc raised several of thcse issues in our
commcnts on thc Draft Environrnent�l Impact Slatemenl ("DEIS"), but the'I'ranspoitation
Agencies neither issued a Supplcmente�l Lnvironmental Imnact Statement ("SIiIS'�) to remedy
those inadequacies nor resolved thc issuus in [he �EIS.'I�he kcy shortcomin�s of the I�L-:IS
include the lollowine:
• �I�'hc impacts descrihed in the FEIS demonstrate U�at the Bypass would violate the
Croatan National Forest Land and Resource Managemeirt Pl�n.
• "I�he FEIS relies on d�e unsu�,>ported assumption that traffic will skyrockct to
rliminate less damagin� alt�rnative solutions.
•'fhe PEIS rclies on a vague, widctined plan tirc prescribed burning that wholly
ignores the Transportation Agencies' cfii�rts to co��vert 70 into an interstate
highway.
Charlottesville • Chapel Hill • Atlanta • Asheville • Rirmingham • Charleston • Nashville • Richmond • Washing[on, DC

• The FEIS selects Alternative 3 as the "Least Environmentally Damaging
Practicable Alternative" when other less damaging practicable alternatives are
available.
• The FEIS unlawfully excludes an analysis of the proposed Bypass under Section
4(� of the Department of Transportation Act.
I. THE CROATAN NATIONAL FOREST PLAN PROTECTS IMPORTANT
��ABITATS AND SPECIES THAT WOULD BE SUBSTANTIALLY AND
ADVERSELY AFFECTED BY THE PROPOSED BYPASS.
To be permitted, the Havelock Bypass must be consistent with the Croatan National
Forest Land and Resource Management Plan ("LRMP"),I Specifically, the Bypass cannot
lawfully "foreclose the opporlunity to maintain or achieve any goals, desired conditioris, or
objectives, over the long term.i2 It must comply with applicable standards3 and guidelines.4
Finally, the Bypass can only be built, if at all, in an area "[t]hat the plan identifies as suitable .for
that type of project or activity."5 .
As reflected in the LRMP, but not carried forward in the FEIS, the portions of the
Croatan that would be affected by any of the Bypass alternatives and Alternative 3 specifically,
have critical ecological significance. The FEIS ignores the fact that much of the area that would
be destroyed by Alternatiye 3 is dominated by longleaf pine, and that much of the longleaf pine
is mature (75 years of age or older), is associated with relatively intact ground covers (i.e.
wiregrass), and represents high-quality longleaf habitat associated with loamy soils: For
example, the discussion under "Terrestrial Communities and Wildlife" claims a deviation from
"natural" conditions in the project area and claims that a more natural condition would be for the
area to consist of various different-aged seres resulting from severe, stand-replacing fires.6 That
discussion is completely at odds with current understanding of longleaf pine ecosystems (which
are naturally uneven-aged systems, maintained by frequent, low-intensity ground fires) as
reflectecl in the Reference Condition for pine savannas described in the current LRMP.� The EIS
is especially deficient in its discussion of the ecological significance of the Southwest Prong
Flatwoods Natural Area and the Havelock Station Natural Area. The Southwest Prong
Flatwoods Natural Area is of major ecological and scientific interest, because of the presence of
high-quality longleaf on several soil types, including soil types that today�are rarely associated
with longleaf. The Havelock Station Natural Area is also a cluster area for rare loamy soil
savanna species. The value of these biological communities is not reflected in the EIS and, as a
result, not protected in compliance with the LRMP.
� See 16 U.S.C. § 1604(i) ("Resource plans and permits, contracts, and other insYruments for the use and occupancy
of National Forest System lands shall be consistent with the land management plans.").
2 36 C.F.R. § 219.15(d)(1).
3 Id. § 219.15(d)(2).
47d. § 219.15(d)(3).
S ld. § 219.15(d)(4).
6 FHWA, Final Environmental Impact Statement, U.S. 70 Havelock Bypass at 3-72 (Dec. 11, 2015) ("FEIS").
' U.S. Department of Agriculture, Forest Service, Southern Region, Croatan National Forest Land and Resource
Management Plan at 72 (2002) (Attachment 1) ("LRMP").
2

A. Each of the �vpass Alternatives Violates LRMP Goals, Desired Conditions,
and Obiectives.
The proposed Bypass forecloses achievement of goals, desired conditions, and objectives
established in the LRMP. First, for reasons explained more comprehensively in our DEIS
comments, building the proposed Bypass under any alternative would complicate prescribed
burning such that additional habitat would be lost as an indirect effect.8 Therefore, any of the
alternatives would violate Goal/Desired Condition 2.5.2.a (use prescribed fire to restore and
improve longleaf stands), Objective 2.5.2.1 (burn on 2-4 year rotation with growing season fire),
and Objective 2.5.2.2 (use fire to improve habitat for threatened and endangered species).9 As a
result, tlie critical RCW subpopulation that exists in the vicinity of the proposed Bypass would
be lost, in violation of GoallDesired Condition 2.1.1 (recovery of viable RCW population);
Objective 2.1.1.1 (meet long-term RCW targets); and Objective 2.1.1.6 (maintain existing
longleaf pine forest type). lo
In addition, even the inadequate rare species surveys demonstrate substantial impacts to
other endangered, threatened, sensitive, and locally rare species on the CNF. Alternative 1,
which has the least impact of the three alternatives, would impact 42.5 acres with 17 occurrences
of 10 rare species.l l Alternative 1 would also have indirect effects on 28 rare species and
directly affect 4 sensitive species and 6 locally rare species. The appendices to the FEIS concede
that Alternative 3"may result in a loss of viability" of the liverwort, Lejeunea bermudiana,12 in
violation of Goal/Desired Condition 2.1.3.a.13 The supporting documentation further concedes
that, with respect to spring-flowering goldenrod (Solidago verna) the Bypass and improvements
to US 17 will eliminate the two largest populations on the Croatan and threaten the viability of
the species if extensive mitigation measures, including prescribed burning, are unsuccessful.la
Similarly, the Bypass would directly or indirectly affect more than 15 acres of habitat for
LeConte's thistle (Cirsium lecontei) eliminating the "three highest quality LeConte's thistle
populations document on the CNF" unless extensive mitigation, including prescribed burning, is
successfu1.15 Alternative 3 would also destroy remarkable powerline corridor liabitat for rare
plant species, in violation of Objective 2.13.5 (maintain powerline corridors in a coastal prairie
condition).16 Moreover, because the FEIS provides no basis for determining viability, it cannot
be used by the USFS to justify any permitting decision that would authorize such substantial
impacts to rare species.
$ See Letter from David Farren, SELC, to Mark Pierce, NCDOT, at 11-13 (Nov. 21, 2011) (Attachment 2). Those
comments do not address the additional complicating factor of NCDOT's support for converting the proposed
Bypass into an interstate, as discussed below, which would appear to preclude closing the Bypass as needed to
support prescribed burning. The FEIS fails to even acknowledge the Transportation Agencies' efforts to convert
U.S. 70 to an interstate, much less the implication of that conversion on any prescribed burning agreement.
9 LRMP, supra note 7 at 47.
'o Id. at 46.
11 FEIS Appendix C, Summary of Revised USFS Rare Species Surveys Evaluation at 39, 41 (Jan. 18, 2013).
12 Id. at 41.
13 Id. at 47. �
14 N.C. Department of Transportation, Biological Evaluation Report for the U.S. 70 Bypass Project at 27-28 (July
16, 2014).
's Id. at 10-11. -
16 LRMP, supra note 7 at 47.
3

Finally, the Bypass is not consistent with goals, desired conditions, and objectives for
protecting black bear habitat. The USFS is to "minimize human disturbance and modification of
black bear habitat" by, in part, "reduc[ing] disturbance from motor vehicles."17 Each of the
alternatives would bisect a portion of the CNF that has been specifically designated as a black
bear sanctuary.
B. - Each of the Bvpass Alternatives Violates LRMP Standards.
The proposed Bypass does not comply with LRMP standards. Critically, the standards
set forth in the LRMP "are limitations on actions or thresholds not to be exceeded." 18 For
example, Standard 4.6.0.3 requires USFS to "[p]rioritize the closing of existing transportation
system and non-system roads where the following conditions exist: open roads in bear habitat ..
. open roads adjacent to RCW nest sites ... roads near endangered or threatened species, SIAs,
or wetlands." 19 Yet the proposed Bypass would introduce a major new highway in bear habitat,
adjacent to RCW nest sites, and through rare species habitats and wetlands. Standard 4.6.1.5
requires USFS to "[p]rohibit construction of roads ... in nest areas."20
Further, Standard 4.7.0.1 requires USFS to "[d]eny applications for new special uses ...
when the proposed uses are inconsistent with the CNF LRMP, are in conflict with other forest
management objectives or applicable Federal statutes and regulations or can reasonably be
accommodated on non-National Forest System Lands."21 With reasonable traffic projections,
upgrades to U.S. 70 can improve traffic flow without affecting any USFS lands, as discussed in
more detail below. At a minimum, the USFS cannot approve Alternative 3 given that
Alternative 1 reasonably accommodates much of the Bypass on non-National Forest System
Lands.
C. The CNF Is Not Suitable For The Proposed Bvpass.
Finally, the LRMP makes clear that the portions of the CNF that would be affected by the
Bypass are not suitable for a four-lane divided highway. The LRMP directs the USFS to
aggressively implement prescribed burning, reduce barriers to burning, and to avoid burning near
developed areas; 22 the Bypass creates a new impediment to prescribed burning, fragments land
to be burned, and promotes development that will make burning more difficult.23 The LRMP
directs the USFS to invest in maintaining and restoring habitat for RCW and other rare
species; 24 Alternative 3 would remove at least 57 acres of longleaf pine habitat more 60 years
old and adversely affect dozens of rare and sensitive species.25 The LRMP directs the USFS to
protect black bear habitat by reducing impacts from automobiles; 26 the Bypass would introduce
�� Id. at 48 (GoaUDesired Condition 2.1.S.b and Objective 2.1.5.1).
' $ Id. at 99.
' 9 Id. at 111.
zo Id
21 Id. at 112 (emphasis added).
zz LRNII', supra note 7 at 47.
z3 See infra Section V.
z4 LRMf', supra note 7 at 46-47.
zs See FEIS Appendix C, Red-Cockaded Woodpecker Territory Analysis Report at 18 (August 12, 2014).
z67d. at 48 (GoaUDesired Condition 2.1.S.b and Objective 2.1.5.1).
4

a four-lane highway into a black bear sanctuary.27 In sum, the LRMi' requires USFS to avoid
introducing new impacts from any roads (much less a highway) to the habitats in the Bypass
corridor.
II. THE FEIS TRAFFIC �ORECASTS AND GROWTH ESTIIVIATES RELY ON
UNSUPPORTED ASSUMPTIONS AND INCOMPLETE ANALYSES.
The Transportation Agencies' analysis in the EIS hinges on several essential assumptions
that are unsupported by the information provided in the document. Specifically, the FEIS relies
on traffic forecasts that are arbitrary and capricious, uses a methodology that has been held
illegal, and depends on erroneous growth assumptions. Each of these erroneous assumptions,
which are discussed in more detail below, preclude approval and construction of the Bypass.28
Reliance on "demonstrably incorrect assumption[s]" violates NEPA.29
A. The FEIS Used Flawed Traffic Forecasts to Dismiss Reasonable
Alternatives.
The alternatives analysis in the FEIS is based on traffic forecasts that project increasing
congestion on U.S. 70 in the study area through the design year of 2035. The traffic forecasts are
based on 2008 base year traffic volumes and project traffc conditions for 2035 based on three
different growth scenarios: 0.0% annual growth, 0.83% annual growth and 2.0% annual growth.
The FEIS provides projections for all three scenarios, but assumes the 2.0% annual growth
scenario for purposes of its alternatives analysis. The FEIS contends that this 2.0% annual
growth scenario "account[s] for local growth (within the study area) and regional traffic with
origins and destinations beyond the study area."3o
The resulting projections forecast massively deteriorating traffic conditions. Traffic
speeds are projected to slow to 8-13 mph, and travel times are projected to increase to 38.7-60.8
minutes for the 8.4 miles of U.S.70 in the study area.31 These forecasts are used by the
Transportation Agencies to justify the purpose and need of the project,32 and to support the
selection of the proposed Bypass as the Preferred Alternative: "[t]he adequacy of the proposed
project was evaluated based on its capacity to handle projected design year (2035) traffic
volumes."33
Specifically, the Transportation Agencies relied on the forecasts of gridlock to eliminate
less damaging, cost effective alternatives from consideration prior to any detailed study.
27 FEIS at 3-101.
28 See Friends of BackBay v. U.S. Army Corps ofEng'rs, 681 F3d 581, 588 (4th Cir. 2012) ("An unjustified leap of
logic or unwarranted assumption, however, can erode any pillar underpinning an agency action ....").
29Id. at 589.
3o FEIS at 2-30.
31 Id. at 2-32. •
3z For example, in its Summary of Need for the Proposed Action, the FEIS states that "[b]y the design year 2035,
only five of the thirteen signalized intersections through Havelock will operate at an acceptable LOS if the proposed
bypass is not built." Id. at 1-4. See also id at 1-8 (discussing secondary purposes of the proposed action and stating
that an analysis based on the 2035 forecast "found that a bypass will reduce local tra�c travel time" in 2035).
33 Id. at 2-26.

For example, the FEIS states that while alternative solutions such as "[s]ignal coordination and
optimizing signal timing would improve traffic flow ... the benefits of this improvement would
be limited due to the high volumes projected for the roadway."34 Likewise, physical
improvements such as median closures, service road extensions, the addition of tu'rn lanes and
intersection realignment were rejected in part because they could not "accommodate future
traffic volumes" alone.35 The FEIS goes on to reject passenger rail as an alternative, failing to
even consider it as a component of a project, because "[d]ue to the level of forecasted traffic
volumes and mix of regional through traffic, passenger rail was not deemed to be a feasible
alternative to a bypass."36 The "Improve Existing: Expressway Alternative" was similarly
rejected based on a capacity analysis calculated using the 2035 forecast.37
Likewise, in their response to our comments on the DEIS, the Transportation Agencies
repeatedly cite the forecasts of rapidly increasing traffic congestion. For example, in response to
our suggestion to look at alternative solutions, the Agencies state that "NCDOT maintains that
there are ... transportation ... needs that support construction of the proposed Havelock
Bypass," (and no other alternative) citing the travel forecasts in the FEIS.38 They also explain
that "an expressway design on the existing U.S. 70 alignment would not operate at an acceptable
LOS due to high projected traffic volumes at intersections."39 In asserting that the project
addresses transportation needs, they again reference the growth scenario in their travel
forecasting analysis;40 and state that "[t]he ... traffic analysis ... demonstrates that additional
through capacity is needed or the highway will fail in the design year."41 The forecasts are thus
instrumental to the Agencies' decisionmaking process.
Despite the traffic forecasts' central role in the alternatives analysis, the Agencies have
not provided any rationale for selecting the 2.0% growth rate. The FEIS does not cite any data
for rejecting the 0.0% or 0.83°/o growth rate. The choice of growth rate is fundamental to the
NEPA analysis and must be supported.4z
The requirement to support the selection of the 2.0% growth rate is made more urgent
here because real world experience since 2008 has demonstrated that the predictions used to
eliminate alternatives and justify construction of the Bypass have no basis in reality. Annual
traffic counts obtained from the NCDOT website—but not included in the FEIS—show that the
Agencies' projections of 2.0% traffic growth and subsequent worsening of traffic conditions has
3a Id. at 2-4.
3s Id at 2-5 ("The construction of these TSM improvements has not reduced traffic congestion enough to improve
the levels of service on U.S. 70 to an acceptable level in the design year (2035). As stated in Chapter 2.8.2, the
proposed bypass plus additional improvements to existing U.S. 70 are needed to accommodate future traffic
volumes."). •
36 Id. at 2-7.
37 Id. at 2-11.
38 FEIS Appendix D, Response to SELC comments at 13.
39Id. Response to SELC comments at 2. See also id. Response to SELC comments at 40 ("[iJ]pgrading the eacisting
highway to an Expressway-level facility does not provide a consistent operational LOS of D or better in the design
year.").
ao Id Response to SELC comments at 17. '
41 Id. Response to SELC comments at 2. -
4Z See Friends of BackBay v. U.S. Army Corps ofEng'rs, 681 F.3d 581, 588 (4th Cir. 2012) (holding that
fundamental assumptions must be explained).
0

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not �naterialized. In lact, tiaftic volumes have remained stable for Lhe past fifleen years. even
erperiencing a decline in some poitions of the study area. Figure I bclow shows recorded [raf�ic
volumc data in the stutly area from 1999 to 2014, with the shadcd area r�presenting the time
period bet�veen 2008 (the year of NCDOT's traftic forecasts) and 2014 (the most recent data
publicly availablc).
Ti�ure 1: 1999-2U14 Recorded Annual Average Daily 7'raffic (U.S. 70 around Havelock)a�
40000
3�000
i0000
25000
Z0000
1?000
10000
5000
aa O� O� Ory O� O,` Oh Ob 01 04' O`� 1� \� \ \� t�`
�q .y0 �O .y0 ,y0 �O ,y0 �O ,ti0 �O ,�O �O ,ti\l �O ,ti0 ,y0
\�ear (shaded portion indicates 2008 baseline year through
201d lalesf reporfed numbers)
♦North (between Stoncbridgz
1-rail and Church Road
■Middle (between liolly Drive
andJucksun Drive)
♦ South (betwecn Cumiingham
Drivc and 4�lollywood Blvd)
Opta painlx repreaen( s�ecifie
locations on G�S 70 in �he sludi�
orea I he FLIS' diseusses truJJic
dn(n mzd forecasts as a range,
jrrim fuwes� tn highest, ru�her
thnn nsing specificinlerseclions.
In 2008, wfien NCDO`I' madc [heir forecasts, traftic volumes ranged from 23,400 to
34,800 per day.'d hi 2014, traftic volumes ranged from 24,000 to 31.000 per day." The P►iIS
quied,v admits this, stating diat''the average currem traftic may be slighdy lower than 2008
estima[es," but then fails to reconcile this reality with its decision to continue using the 2.0%
growth forecast to support its analysis."' Instead, the alternatives analysis continues to be based
on the unsuppoited assumpfion. indced, an assumplion th�t has proven to be incorrect, that tra�c
volumes along U.S. 70 will skyrocket to 39,900 to �9,600 per day by 2035." Figure 2 below
shows recorded traf(ic volumc data from 1999 to 2014, and then illustrates the enormous shift
towards massi��e lraflic growth that would be needed Yo achieve lhe levels that the I'ransport�ation
Agencies project for 2035. In fact, because actual traffic volume bctwecn 2008 and 2014 has
declined—not increased by Z"4� 3nnually—traffic volumes would have to sce an increase of
41 Pigure I and an accompanying dat:� [able are attached ro Ihese comments as A[[achment 3. Data obtained from
NCDOT Traftic Voluine tilaps Qast acaessed Peb. 4, 2016) (Attachment 41, uvnilable u�
http:!/www, ncdoL�ov/traveVsta[emapping/trafficvo I umemaps/.
'�4 FF,IS at 2-31.
as /d.
°`' /d NCDOT (urther notes that "staff reductions at Cheny Point �4arine Corps Air Station have lowered traflic
along the corridor" but ihen providcs no analysis as to how wnditions at the base may affect tral'tic volumes in the
future. /�l
a� !c/ at 2-9.

bet�veen 51?/o and 92 % from ?014 levels to meet thc forccasl that underpins the PG1S's
analvsis.
a.
Figure 2: 1999-2014 Recorded Annual Average Daily Traffic (U.S. 70 around Havebck)
and NCDOT's 2035'I'raffic Forecast Assumptio�s'��
G0000
F
q i0000
..
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�
� 40000
i—
C.
� 1n��0
U
bL '
R
CJ
j �Q��U
� 10000
0
1998
Recorded Data NCDOT Forecast
tNorth (between Stonebridge
, 1'rail and Church Road)
tMiddle (bztween Holly Drive
, end Jackson Dricc)
—�—South (bcnvicen Cunningham
Drivc and I lullywood L3Ivd)
2003 2U08 201� ?�18 2023 2028 2033 2038
Year (shaded portioo indica[es 2008 bascline ycar through 2014
letes[ reporfed numbers)
Dnfa pninls represen! ��pec f<� lunruu�ac on CS ?0 in !he studr nrea. 7he sanre daR� poinL��
�rz uszd m can�pare ,V(�DOf"c :03 i.I AD I prnje<vin�u. 7Tre F7iLS rlisnevsee� trn�c dutn
mrd jw�ecnsCs �s n ran�e•. jrnm loivest ro highesl. r�i(her il�nn nsin,¢ sPe�il�c irrterser(iar�s.
I�he l�ranspor[ation Agencics not only fail m distlose this data in the FGIS. the�� fail to
offer any expl�nation for thc grc�[ disparity between the 'I'ranspoitation A�encies' erowth
assumptions and ac[ual traFfic volumes that have been noted during the six years since the
Agencies' ?008 baselinc ycar. N1oreover. lhc fI.IS lacks any esplana[ion to support the
explosive growth (beyond 2.0% annually) that woulcl he irquired to reach the forecasted traftic
volume given the dedine in trlffic since ?008.
The continued reliance on the 2.0% gru�vtl� rate is further called into question given the
assertion in the FEIS that "[iJn summer 2014, NCDOT verified its traffic forecasts and analysis
°K NCDO'f projects [hat traftic volumes �t the "Nortli' location will rise to 44.R00 in 2035, 15,800 more than 2014
levels, or a>4"/o incmase. NCD07� projects that vaffic volumes at the "Middle" location will rise to 4G.800 in 2035.
I 5,800 more than 2014 Icvels, or a 519u inerease. NCDOI� projects Ihat traffic volumes at [he "South" location will
rise to 59.600 in 20+5. 28.G00 more than 2014 Icvcls, or a 9296 incre�sc..See da[a tables in Att�chment 5.
'° Figure 2 and an accompanying data table are at[ached to these comments as Attachment 5. Data obtaincd from
NCDOT Traffic Volume Maps. snpra note 4i.

by re-evaluating both capacity and travel time. The updated traffic analysis ... demonstrates that
additional through capacity is needed or the highway will fail in the design year."50 This so-
called verification process was presumably the 2014 analysis of the traffic forecasts by Stantec
used as part of FHWA's reevaluation process, but not included in the FEIS.51 Where one might
have reasonably expected this process to examine whether projections were in fact proceeding as
expected, with six additional years of data available, the 2014 analysis simply looked at the 2008
data and reran those numbers. No updated data was considered as part of the analysis. All the
analysis did, therefore, was attempt to confirm that the 2008 projections had been created using
proper procedures. No attempt was made to verify that the forecasts were accurate or to
reconcile the forecasts' failure to accurately project lack of growth between 2008 and 2014.
The fact that U.S. 70 traffic volumes in the study area are not increasing at the rate
projected by the FEIS—or, indeed, at all—means that alternatives that were previously rejected
as infeasible may now be reasonable and require study.5z But the Transportation Agencies chose
instead to ignore what has actually been taking place in the U.S. 70 corridor and continue to rely
on inflated traffic forecasts to justify eliminating all non-bypass alternatives.
Instead of correcting their flawed forecasts, the FEIS uses them to eliminate reasonable
alternatives, thereby failing to "[r]igorously explore and objectively evaluate all reasonable
alternatives."53 Furthermore, continuing to fall back on their original traffic forecasts and 2.0%
growth assumptions despite evidence of the inaccuracy of those outdated assumptions "runs
counter to the evidence before the agency" and is arbitrary and capricious.s4
B. The FEIS Relied on a Methodologv that has been Determined to be
Ille�al•
The traffic forecasts used to justify the need for the Bypass and to eliminate non-Bypass
alternatives are further flawed because they were created using a methodology that the United
States District Court of the Eastern District of North Carolina, the federal court with jurisdiction
over this project, has ruled is illega1.55 The FEIS purports to compare forecast traffic congestion
in 2035 for "build" and "no build" scenarios, but in forecasting future traffic the FEIS relied on
socio-economic data that assumed growth that would occur with the Havelock Bypass in place
would also occur if the road was not constructed.s6
The illegal approach has the effect both of making construction of the proposed highway
appear more necessary, as. well as making other, less damaging practicable alternatives—such as
upgrades to existing roads—seem less attractive. It is not surprising that this flaw was contained
in the DEIS. In an attempted appeal of the district court ruling that declared this method illegal,
so FEIS Appendix D, Response to SELC comments at 2(emphasis added).
s' Stantec, US 70 Havelock Bypass Traffic Analysis Report (July 9, 2014) (Attachment 6).
5z See 1000 Friends of Wisconsin, Inc. v. U.S. Dep't of Transp., 2015 WL 2454271, at *7-8 (E.D. Wis. May 22,
2015) (finding that agencies violated NEPA by failing to explain the impact of updated demographic data where
such new data could make a discarded alternative viable).
s3 N.C. Wildlife Fed'n v. N.C. Dep't ofTransp., 677 F.3d 596, 602 (4th Cir. 2012).
sa See Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 at 287-88 (4th Cir. 1999).
ss See Catawba Riverkeeper Found. v. N.C. Dep't of Transp., 2015 WL 1179646 (E.D.N.C. Mar. 13, 2015).
s6 FEIS at 2-30-2-32.
0

FHWA explained that this flawed approach to traffic forecasting was often used in NEPA �
analyses of highway projects around the country. FHWA cited 108 instances of other highway
projects that had been analyzed using the same approach—the Havelock Bypass being one of
them.s� The appeal was denied by the U.S. District Court, and thus the court's initial ruling
declaring this method illegal stands.58
FHWA's apparent wide use of this flawed methodology does not make it any less illegal
or misleading.59 The NEPA process for another highway on FHWA's list, the Illiana
Expressway, was recently determined illegal by a federal court in Illinois.60 FHWA is not
appealing that ruling.
In the case of the Havelock Bypass, the use of the same data set61 that assumed
construction of the highway to create both "build" and "no build" traffic forecasts is particularly
troubling. The FEIS predicts that if the Bypass is not constructed, travel speeds will drop to 8-13
mph, and travel times along U.S. 70 in the study area will increase to 38.7-60.8 minutes.62 The
FEIS goes on to suggest this level of congestion would lead to "regional and statewide effects.63„
Yet, as discussed below, these dramatic changes to road conditions were not factored into
projections of future land use. Thus, the traffic forecasts used in the FEIS assume the same level
of growth (2.0% annually) whether the highway is constructed or not.
In the FEIS, the Transportation Agencies want to have it both ways. They emphasize the
need for a new location Bypass by noting that U.S. 70 "must operate well to help North Carolina
attract new businesses, grow jobs and catalyze economic development."64 Yet they then
illogically and unlawfully assume that growth that would continue at the same rate whether or
not a Bypass is constructed. Such contradictory analysis is antithetical to informed
decisionmaking and violates NEPA.
57 Gloria Shepherd Decl., Apr. 10, 2015, Catawba Riverkeeper FouncL v. N.C. Dep't of Transp., No. 5:15-CV-29-D,
ECF No. 75-3 (Attachment 7). See also Letter from Gloria Shepherd, FHWA, to Kate Asquith, SELC (July 10,
2015) (Attachment 8).
58 Catawba Riverkeeper, No. 5:15-CV-29-D (E.D.N.C. Sept. 10, 2015). The Federal Highway Administration
dismissed its appeal of this case to the Fourth Circuit on February 18, 2016. .
s9 Izaak Walton League ofAmerica, Inc. v. Butz, 522 F.2d 945, 952 n.26 (4th Cir. 1975) (quoting Wilderness Society
v. Morton, 479 F.2d 842, 865 (D.C. Cir. 1973) ("[I]t is our firtn belief that a line must be drawn between according
administrative interpretations deference and the proposition that administrative agencies are entitled to violate the
law if they do it often enough.").
6o Openlands v. U.S. Dep't ofTransp., 2015 WL 4999008, at *10 (N.D. Ill. June 16, 2015).
61 The traffic forecasts do appear to take into account induced land use changes at the Lake road interchange. Other
changes, such as the increased level of growth that NCDOT expects to see in subbasins 1, 16, 17, 32, 26, 37, 39, 45,
and 54 are not included. Furthermore, larger scale changes such as those NCDOT predicts for the region as a whole
if the Bypass is constructed are also not accounted for. See, e.g., FEIS at S-6 (noting that without the Bypass, time
delays would have "regional and statewide effects").
62 FEIS at 2-32. .
63 Id. at S-6.
6a FEIS Appendix D, Response to SELC comments at 13.
10

C. The FEIS Presents an Arbitrarv Proiection of Induced Growth.
NEPA requires consideration of indirect effects, defined as those effects that are "caused
by the action and are later in time or farther removed in distance, but are still reasonably
foreseeable."65 The CEQ regulations state that NEPA documents should specifically include
"growth inducing effects and other effects related to induced changes in the pattern of land use,
population density or growth rate, and related effects on air and water and other natural systems,
including ecosystems."66 The transportation agencies' analysis of induced growth for the
Havelock Bypass, however, is superficial, based on flawed assumptions and inadequate to satisfy
NEPA.
1) Inaccurate Baseline
To conduct an analysis of indirect growth, the agency necessarily had to project future
conditions under the "No Build" condition. An accurate No-Build baseline is essential for a
satisfactory NEPA review.67 Yet, in its review of transportation projects, NCDOT fails to
include accurate baseline scenarios with regularity.68 As such, NCDOT frequently presents
NEPA documents that fail to account for the full extent of indirect environmental impacts that
are likely to result from major new highway construction.
The FEIS for the Havelock Bypass is no exception. The Agencies' analysis of induced
growth begins with the assumption that under a"No Build" scenario Havelock will continue to
grow at an annual rate of 0.83% for Craven County and 1.5% per year for Carteret County,
resulting in an overall population growth of 16.7% and 29.3% between 2010 and 2030.69 The
EIS does not make clear what overall assumption was made for the precise expected growth rate
within the study area, but presumably it was somewhere between 0.83 and 1,5%.
The unsupported growth rate assumes that growth will continue as it has done in reoent
years and is a replica of the similar unsupported assumption underpinning the Agencies' use of
the same socio-economic data for "build" and "no build" traffic forecasts. Such an assumption,
however, fails to take into account what the Agencies predict would be the result of a"no build"
condition. As noted above, in their analysis of future traffic, the Agencies predict (without any
support) that if the Bypass is not constructed traffic along U.S. 70 would become so congested
that it would take as long as 60 minutes to make the current 11 minute journey through the
6s 40 C.F.R. § 1508.8(b).
66 za.
67 N.C. Wildlife Fed'n, 677 F.3d at 603 (citing Friends of Yosemite Valley v. I�empthorne, 520 F3d 1024, 1037-38
(9th Cir. 2008)). See also Friends ofBackBay, 681 F.3d at 588 ("A material misapprehension ofthe baseline
conditions existing in advance of an agency action can lay the groundwork for an arbitrary and capricious
decision."); Catawba Riverkeeper, 2015 WL 1179646, at *8; Openlands, 2015 WL 4999008, at *10 (holding that
without a true "no build" scenario, it is "impossible to determine the extent to which building the Corridor will
increase traffic on existing roads and the impact such increased traffic may have on the study area").
68 See, e.g., N.C. Wildlife Fed'n, 677 F.3d at 603-04; Catawba Riverkeeper, 2015 WL 1179646, at *8; N.C. Alliance
for Transp. Reform v. USDOT, 151 F. Supp. 2d 661, 689-90 (M.D.N.C. 2001).
69 FHWA, Draft Environmental Impact Statement, U.S. 70 Havelock Bypass at 4-132 (Sept. 6, 2011) ("DEIS").
11

corridor.70 Where currently traffic speeds through the corridor are 42-47 mph, the agencies
expect that if the Bypass is not constructed speeds will slow to as low as 8 mph.
Despite these predictions, the Agencies assume that this dramatic—hypothetical—
increase in congestion and travel times would do nothing to stymie growth and development in
Havelock. In other words, the Agencies assume that people will wish to move to Havelock
whether it takes them 11 minutes to cross town or 60. The Agencies assume that 8 mph travel
speeds within the City will be no deterrent at all to developers wishing to build new subdivisions.
Yet nowhere in the Agencies' explanation of the "No Build" scenario for land use is there any
explanation as to why it is reasonable to expect that with such hypothetical, extreme congestion,
growth would continue unabated. In fact, the EIS repeatedly suggests the opposite; noting, for
example,.that improving travel time on the Bypass is necessary to help "attract new business,
grow jobs and catalyze economic development."�l
2) Unclear Analysis
Without an accurate baseline that takes account of the impact of the Agencies' own
projections of congestion under a"No Build" scenario, the Agencies are unable to accurately
project the likely impact of Bypass construction on induced growth and changes to land use. In
addition to this fundamental inadequacy, the land use changes that are projected in the EIS are
not presented in a transparent fashion. The EIS includes two maps of "Build" and "No Build"
land use patterns, but no similar map of current land use is included, making it difficult to
determine which areas are expected to grow and which are currently developed.72 The EIS states
that "graphical depictions of the Build and No-Build scenarios are presented in Exhibits 4.16.1 a-
b."73 Yet these e�ibits do not appear to have actually been included in the EIS.
3) Craven 38- Weyerhaeuser Development
Notably absent from the analysis of induced growth is any mention of the proposed new
1,700 acre mixed-use development by Weyerhaeuser (the "Development"). The project would
be located down Lake Road, just south of Havelock and accessible by the proposed Lake Road
Bypass interchange. The development is envisioned to accommodate "400 acres of light
industrial use with rail and road access, commercial and neighborhood sites, huge tracts of single
family and multi-family, high, medium and low density housing, medical facilities, a civic
district, open spaces and community amenity sites."74
Plans for the Development make clear that it is integrally connected to the Havelock
Bypass. The proposed development is said to be placed in a"strategic location along U.S. 70
corridor, just outside the proposed Havelock Bypass."75 It was noted that some of
70 FEIS at 2-32, Table 2.8.2.
" FEIS Appendix D, Response to SELC comments at 13; FEIS at 1-18.
7z FEIS Exhibits 4.16.1 and 4.16.2.
73 FEIS at 4-143. � .
74 Sue Book, Weyerhaeuser plans major development near Havelock, Halifax Media Service (Oct. 30, 2014)
(Attachment 9).
75 E-mail from Rodger Sauls, Davenport Lawrence, to Timothy Downs, Craven County (Feb. 10, 2014) (Attachment
10).
12

Weyerhaeuser's criteria in selecting a location "were to have rail, good transportation corridors
and the standard utilities: electric, water, sewer and gas."76 Presumably then, Weyerhaeuser
would not select Havelock if the 8 mph traffic speeds that NCDOT predicts in a"No Build"
scenario would come to pass. And indeed, Taylor powney, North Carolina operations manager
for Weyerhaeuser Real Estate noted publicly that "[e]xisting rail and plans for the U.S. 70
Havelock Bypass with access to Lake Road appear to make the site ideal."�� Havelock Mayor
Lewis underscored this point in December 2014, noting that the Havelock Bypass would bring
growth and specifically citing the Weyerhaeuser development.78
In other words, the Development will not move forward without the Havelock Bypass,
and is thus an indirect effect of•the Bypass that must be considered in the environmental analysis.
With regard to the analysis of reasonably foreseeable indirect impacts of a project, NEPA
guidance states that:
[I]f there is total uncertainty about the identity of future land owners or the nature
of future land uses, then of course, the agency is not required to engage in
speculation or contemplation about their future plans. But, in the ordinary course
of business, people do make judgments based upon reasonably foreseeable
occurrences. It will often be possible to consider the likely purchasers and the
development trends in that area or similar areas in recent years; or the likelihood
that the land will be used for an energy project, shopping center, subdivision, farm
or factory. The agency has the responsibility to make an informed judgment, and
to estimate future impacts on that basis, especially if trends are ascertainable or
potential purchasers have made themselves known.. The agency cannot ignore
these uncertain, but probable, effects of its decisions.79 �
This guidance makes clear that an analysis of the Weyerhaeuser development must be
included in the Havelock Bypass EIS. The City of Havelock has been working with planners,
consultants and the developer to move the project forward and the Agencies' "informed
judgment" should have led them to full consideration of "these uncertain, but probable, effects of
[their] decision."80 Among other impacts, the Agencies should have considered how a large
development at the Lake road intersection might affect USFS's ability to perform prescribed .
burns necessary for the preservation of habitat.
4) Outdated Assumptions Regarding Buffers
� The analysis of induced growth is further flawed because it incorrectly assumes "that
existing stream buffers as well as marsh and open water wetlands as depicted on the existing land
76 Weyerhaeuser plans major development, supra note 74.
" Drew Wilson, Possible Lake Road development excites Havelock off cials, Havelock News (Nov. 6, 2014)
(Attachment 11).
'$ Drew Wilson, U.S. 70 bypass around Havelock delayed again, Havelock News (Dec. 10, 2014) (Attachment 12).
79 Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg.
18026 (March 23, 1981).
so Id.
13

use map would remain."81 In making this observation, the FEIS fails to disclose the e�tent to
which these riparian buffers were established or protected by local ordinance. Legislation passed
earlier this year prevents any local government, absent completed review and approval by the
State prior to 2017, from enacting, implementing, or enforcing any buffer ordinance unless
"necessary to comply with or implement federal or State law or a condition of a permit, �
certificate, or other approval issued by a federal or State agency." 2015 N.C. Sess. Laws 246 §
13.1(b) (Sept. 23, 2015) (enactingN.C. Gen. Stat. § 143-214.23A). The same legislation limits
the ability of local governments to enforce buffer ordinances in their extraterritorial jurisdiction,
regardless of observed impacts on water quality. Id.�§ 3(amending N.C. Gen. Stat. § 160A-365).
Thus, unless none of the stream buffers noted are established by local ordinance, the assumption
in the FEIS that existing stream buffers will stay in place is without merit. As a result, it is likely
impacts to streams and water quality may be greater than disclosed in the FEIS.
III. ALTERNATIVE 3 IS NOT THE LEAST ENVIRONMENTALLY DAMAGING
ALTERNATIVE AND CANNOT BE PERMITTED.
The FEIS erroneously conflates the legal standards governing selection of a Preferred
Alternative and selection of the Least Environmentally Damaging Practicable Alternative
("LEDPA"). NEPA regulations do not dictate what must be selected as a preferred alternative.
An EIS shall "[i]dentify the agency's preferred alternative or alternatives, if more than one
exists; in the draft statement and identify such an alternative in the final statement unless another
law prohibits the expression of such a preference."$Z That analysis includes consideration of
"effects" on the "human environment," which include not only ecological effects, but also
"aesthetic, historic, cultural, economic, social, or health" effects.83
By contrast, the Clean Water Act ("CWA") mandates selection of the alternative with the
least impact on the aquatic environment with limited exception. The LEDPA regulations state
that "no discharge of dredged or fill material shall be permitted if there is a practicable
alternative to the proposed discharge which would have less adverse impact on the aquatic
ecosystem, so long as the alternative does not have other significant adverse environmental
consequences."84 At the outset, only adverse impacts to the aquatic ecosystem can be
considered. A practicable alternative that would have the least impact on the aquatic ecosystem
can only be rejected if it has "other significant adverse environmental consequerices." The
preamble to the rule makes clear that this secondary analysis is intended to "take into account
evidence of damage to other ecosystems in deciding whether there is a`better' alternative."gs
The Corps has recognized that the secondary analysis focuses on "substantial 'impacts to other
natural environmental values."86 � In short, the environmental impacts that can be considered in
designating the LEDPA are significantly narrower than those that may be considered in selecting
a preferred alternative.
81 FEIS at 4-137.
8z 40 C.F.R. § 1502.14(e).
83Id. § 1508.8.
84Id. § 230.10(a) (emphasis added).
85 Guidelines for Specification of Disposal Sites for Dredged or Fill Material, 45 Fed. Reg. 85336, 85340 (Dec. 24,
1980) (emphasis added). '
86 Regulatory Guidance Letter 93-02, Guidance on Flexibility of the 404(b)(1) Guidelines and Mitigation Banking
(Aug. 23, 1993) (emphasis added) (Attachment 13).
14

In North Carolina, new location highway projects are developed through the "merger ,
process" which aims to integrate NEPA and section 404 of the CWA. NCDOT and FHWA thus
work closely with the U.S. Army Corps as each highway project is reviewed and advanced to
ensure, in theory, that "the regulatory requirements of Section 404 of the Clean Water Act are
incorporated into the NEPA decision-making process for transportation projects."g� Through
this process the agencies are required to meet consensus on the "preferred alternative" and the
LEDPA prior to publication of an FEIS. At the time it is selected, the agencies are required to be
"reasonably certain that the LEDPA/ Preferred Alternative will comply with.all relevant
regulations and permit requirements" and "can be authorized."88
. The "Preferred Alternative" selected for the Havelock Bypass is not, however, the
LEDPA. The FEIS confuses factors that may ordinarily be used by a transportation agency to
suggest a preferred alternative with the legal strictures of the Clean Water Act. Specifically, the
FEIS relies on a number of factors that are not relevant to a LEDPA determination to justify the
selection of Alternative 3—a decision first made in 1998, prior to any environmental impact
statement89—stating that "[t]he Preferred Alternative's alignment was designed to avoid and
minimize impacts to the human arid natural environments to the extent possible including the
City of Havelock, MCAS Cherry Point, streams, wetlands, and RCW clusters on NFS lands."90
These factors can be categorized as (1) relating to the built environment; (2) relating to the
aquatic environment, and (3) relating to the non-aquatic natural environment.
The first category of factors considered in the FEIS—which appears to have driven the
analysis—relate to the human environment. Those factors include relocations and impacts to
farmland.91 Although relevant for purposes of disclosure under NEPA, neither relate to the
aquatic environment or natural ecosystems, which are the only lawful considerations when
comparing practicable alternatives to select the LEDPA.92 The FEIS concedes that relocations—
not impacts to the natural environment—were the basis for rejecting Alternative 2.93 Elimination
of Alternati�e 2 as the LEDPA based on relocations, which cannot be considered, is arbitrary and
capricious.94
The FEIS's limited analysis of the impacts to the aquatic ecosystem demonstrates that
Alternative 3 is not the L,�DPA. The FEIS admits that "Alternative 3 impacts the Highest
amount of wetlands.i95 It also impacts the most wetlands on the CNF, the second highest stream
footage on the CNF, and the second highest square footage of buffers—both overall and on the
$� Memorandum of Understanding, Section 404 of the Clean Water Act and National Environmental Policy Act
Integration Process for Surface Transportation Projects in North Carolina at 1(last rev. Jan. 4, 2005) (Attachment
14).
88 Id. at Process I: Projects on New Location at 12 (Attachment 14).
89 FEIS at 7-3-7-4.
90 Id. at 2-41.
91 Id. at 2-39. -
92 See 40 C.F.R. § 230:10.
93 FEIS at 2-46.
94 See Whitman v. American TruckingAss'ns, 531 U.S. 457, 464-71 (2001) (holding that the Clean Air Act does not
allow EPA to consider cost as a factor in setting national ambient air quality standards where the statutory provision
in question does not expressly authorize consideration of cost).
9s FEIS at 2-40.
15

CNF.96 Alternative 1, by comparison, impacts fewer wetlands overall and on the CNF, fewer
feet of streams on the CNF, and fewer buffers overall and on the CNF.97 During the merger
process, "EPA pointed out that the impacts table indicates that Corridor 1 has the least impacts
and could be considered LEDPA."98 Given that Alternative 1 has a less impact on the aquatic
ecosystem than Alternative 3 in nearly every category, Alternative 3 could only be the LEDPA if
Alternative 1 has "other significant adverse environmental consequences" or is impracticable.
The FEIS makes clear that Alternative 1 does not have "other significant adverse
environmental consequences." Compared to Alternative 3, Alternative 1 impacts fewer forested
acres, fewer acres on the CNF, fewer forested CNF acres, and avoids the Southwest Prong
Flatwoods Natural Heritage Area in its entirety. Alternative 1 is substantially more protective of
longleaf pine ecosystems—it would have less impact to longleaf pine, to mature longleaf pine
(older than 70 years), to longleaf pine associated with intact native ground cover, and to longleaf
pine associated with loamy soils (which are especially difficult to restore). In fact, much of the
forested acreage that is affected by Alternative 1 is currently pine plantation and is not a natural
ecosystem whatsoever.
Because it is more protective of important habitat, Alternative 1 is also better for rare
species. As summarized in Appendix C, in comparison to Alternative 3, Alternative 1 impacts
fewer acres with fewer occurrences of rare species, affects fewer rare species, affects fewer
sensitive species, and affects fewer locally rare species.99
The only argument against Alternative 1 that is stated in the FEIS—that it fragments a
larger section of the CNF—has no support. The FEIS states:
Alternative 1 is not considered the least environmentally damaging alternative
because it fragments a large amount of CNF habitat, and because the USFS has
stated that conducting prescribed burns would be extremely difficult, resulting in
considerable long-term habitat fragmentation effects on RCW populations within
the CNF.Ioo
That argument relies on two inexplicable, unsupported assumptions. The first
assumption is that more land east of the proposed bypass necessarily means more habitat
fragmentation. The FEIS contains no support for that assumption. To the contrary, it is clear
that Alternative 1 would cause less fragmentation to USFS land. As demonstrated by comparing
the alternative corridors and mapping of USFS lands in the FEIS, Alternative 1 avoids
fragmenting USFS lands to a significant extent.lol Alternative 3 bisects not only the SW Prong
Flatwoods SNHA, but also fragments CNF lands—and RCW habitat between Sunset Drive and
96 See id. at 2-46-2-47.
97 NCDOT appears to have ignored these impacts to the aquatic ecosystem when selecting the LEDPA. As the FEIS
concedes, "stream impacts were secondary to other decision-making factors, particularly habitat fragmentation." Id.
at 2-45.
98 FEIS Appendix E, April 10, 2012 Merger Process Team meeting minutes at 6(Oct. 23, 2012).
99 See FEIS Appendix C, Summary of Revised USFS Rare Species Surveys Evaluation at 39, 41 (Jan. 18, 2013).
too FEIS at 2-46.
lol Compare id. at 2-21 (Figure 2.7.1) to id. at 4-49 (Figure 4.14.1).
16

Lake Road, ineluding substantial direct imp�cls to longleaf pines more than RO years old.10'
Alternative I avoids this fragmentatiun cntircl�- and. instead, would primarily impact pine
plantations that already fragmcnt habitat on thc CN[ and provide no ccological benelit.103
Maintaining the continuity of USP�S parccls under niternative 1 is criticaL As discussc;d
in our llF:IS comments, small populalions are sub.jcct to extirpation duc to random events.10a
Alternative 3 would bisect USFS lands such th�t it would create t�agments of habitat tl�at provide
little ecological function. l�he fi�ure belo�a�. �0' cropped to isolate the puriions of Alt'ern�tive 1
and 3 that are dit%rcnt, demonstrates the fragmentation cai�ised by Alternative 3 that is avoided
b}� Alternative L'I herc is no question that Altcrnative I, though it includes more USPS east of
the byp3ss, c�iuscs substantially lcss fragmentation oFmeaningful hnbitat.
Eigure 3: Comparisun uf Unique �ectiuns nf Alternatices 1 and 3.
l'he sccond unsupported assumption—Uiat USrS has decmed burning to be more
difticult wider Alternative I is similarly illogic�l. The PGIS states that "USI S st'aff indicated
that Alternative I would ... make prescribed burning exhrme(v dif_')icz+[l."�u�` Similarly. the P� fS
claims that "Alternativc 3 is most conducive to wnducting prescribed burnz."�"� Such kcy
assumptions must be sup�ortcd. Hcre therc is no support. Alternative 3 would fra�;ment USPS
10'' See FEIS at 4-49 (Fieum 4.14.1).
10�' See Attachment 15 (photos of pine plantatiais in Alternative I corridor, recently clear cut).
�w See ols�i FEIS at 4-33 (`9solated populations are more suhject to local extirpation ....").
105 DEIS Pieure 4-4.
106 FEIS at 2-40 (emphasis added).
�"r /d at 4- I 12.
17

lands such that burning would be restricted to smaller, isolated pockets and in close proximity to
the bypass at almost all times. The error in the FEIS's reliance on the bald assertion that burning
would be more difficult is clearly demonstrated by looking at the potentially affected RCW
territories. -
Unlike Alternative 3, Alternative 1 would leave territories 12-44R and 58 almost entirely
intact. Alternative 1 would divide territory 901, but would leave the majority of that territory—
including known cavity trees—as part of a larger, contiguous parcel of USFS land with
territories 58 and 12-44R. Alternative 1 also creates a larger buffer between cavity trees and the
proposed bypass.
� Under either alternative, the same territories would require burning. Alternative 3 creates
five separate parcels that USFS would be required to burn to maintain habitat. Alternative 1
creates one very large parcel of land and one rather small parcel. There is no justification
presented in the FEIS for concluding that burning two parcels is considerably more difficult than
burning five.
Finally, the FEIS states that Alternative 3 is the "least cost alternative."108 In addition to
being untrue based on the figures reported in the FEIS,lo9 it is irrelevant. In the LEDPA
analysis, cost is a factor in determining practicability. I lo The FEIS does not, and cannot, make
any argument that Alternatives 1 and 2 are not practicable. In fact, Alternative 1 is the cheapest
alternative. l l l �
In sum, while Alternative 3 may be selected as NCDOT's Preferred Alternative under
NEPA, it cannot be the LEDPA under the Clean Water Act. Alternative 1 has less impact on the
aquatic environment, less impact on forested land, less impact on the CNF, less impact on rare
species, fragments less CNF habitat, avoids the SW Prong Flatwoods significant natural heritage
area, and has less direct and indirect impact on RCW habitat. In their unique sections,
Alternative 1 traverses industrial pine plantations; Alternative 3 bisects irreplaceable habitats of
great ecological significance. Moreover, Alternative 1 maintains more continuity between
habitats that must be burned in order to avoid jeopardizing the RCW as.well as reducing
fragmentation of RCW habitat. There is no environmental factor that supports selecting
Alternative 3 as the LEDPA over Alternative l. I 12 Therefore, it must be rejected.
IV. THE FEIS FAILED TO THOROUGHLY ANALYZE A REASONABLE
RANGE OF ALTERNATIVES TO THE BYPASS.
Central to the NEPA process is the agency's analysis and disclosure of reasonable
alternatives. After identifying the underlying purpose and need for their intended project,
agencies must "[r]igorously explore and objectively evaluate all reasonable alternatives" that
ios Id at 2-39. •
l09 See id. at 2-47, Table 2.10.5 (demonstrating that Alternative 3 is the most expensive alternative).
llo See 40 C.F.R. § 230.10(a)(2).
"' See FEIS at 2-47, Table 2.10.5.
1z We do not concede that Alternative 1 is the LEDPA. Due to the unsupportable traffic forecasts included in the
FEIS, the real LEDPA—improvement to existing U.S. 70—was not considered in detail. It is clear, however, from
the FEIS analysis that Alternative 3 is far more destructive than Alternative 1.
18

could achieve that underlying purpose.113 An "informed and meaningful consideration of
alternatives - including the no action alternative - is an integral part of the statutory scheme." 114
The agency must "[d]evote substantial treatment to each alternative considered in detail,
including the proposed action, so that reviewers may evaluate their comparative merits."lls Only
those alternatives that are deemed to be unreasonable can be eliminated from study.116 Detailing
all feasible solutions forces the agency to consider the environmental effects of a proposed .
project and to evaluate those against the effects of alternatives.11�
Thus, an EIS for a highway project "should consider all possible alternatives to the proposed
freeway, including changes in design, changes in the route, different systems of transportation
and even abandonment of the project entirely." 118 "Each alternative should be presented as
thoroughly as the one proposed by the agency, each given the same weight so as to allow a
reasonable reviewer a fair opportunity to choose between the alternatives." 119
The DEIS described in detail only three variations of the same general concept, and the
FEIS failed to remedy that failure. Each of the three alternatives considered in the FEIS involves
construction of a new location bypass through the Croatan National Forest. Strikingly, the
discussion of alternatives to a new location bypass occupies just 13 pages of the FEIS. lzo
Without analysis, the FEIS prematurely rejects all alternatives that do not involve construction of
a new highway, violating NEPA's requirement that all reasonable alternatives be considered.
A. Focus on the Strategic Hi�hways Corridor Plan Artificially Restricts the
Consideration of Reasonable Alternatives.
NEPA regulations require agencies to provide a statement specifying "the underlying
purpose and need to which the agency is responding in proposing the alternatives including the
proposed action." 121 This "purpose and need statement" determines the range of reasonable
alternatives that will be examined in the EIS.122 An agency may not "narrow the objective of its
action artificially and thereby circumvent the requirement that relevant alternatives be
considered," 123 in effect rendering the EIS a"foreordained formality." 124
113 40 C.F.R. § 1502.14(a).
lla Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1065 (9th Cir. 1998).
lls 40 C.F.R. § 1502.14(b).
1'6Id. § 1502.14(a).
"'Piedmont Heights Civic Club Inc. v. Moreland, 637 F.2d 430, 436 (Sth Cir. 1981).
1'a Keith v. Volpe, 352 F. Supp. 1324, 1336 (C.D. Cal. 1972). .
'19 Rankin v. Coleman, 394 F. Supp. 647, 659 (E.D.N.C. 1975).
120 See FEIS at 2-2-2-14.
Iz' 40 CFR § 1502.13.
'z2 Audubon Naturalist Soc y v. U.S. Dep't of Transp., 524 F.Supp.2d 642, 662 (D. Md. 2007).
'z3 City ofNew York v. U.S. Dep't of Transp., 715 F.2d 732, 743 (2nd Cir. 1983).
'z4 Citizens against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991). See also Webster v. U.S. Dep't of
Agric., 685 F.3d 411, 422 (4th Cir. 2012) ("Typically, a purpose is unreasonable when the agency defines it so
narrowly as to allow `only one alternative from among the environmentally benign ones in the agency's power,' such
that the EIS becomes essentially `a foreordained formality."').
19

Like the DEIS before it, the FEIS highlights the following goals in its "Summary of Need
for the Proposed Action": regional mobility, regional connectivity, and traffic operations.lzs The
statement of purpose, however, is much narrower. One of the two primary purposes of the
proposed Havelock Bypass is to "enhance the ability of U.S. 70 to serve the regional
transportation function in accordance with the Strategic Highway Corridors Plan." 1z6 The
Strategic Highway Corridors Plan ("SHC") is a"long-range highway planning vision" that in
2003 called for U.S. 70 to be upgraded to a freeway through Havelock, forming a portion of
NCDOT's "Super 70" project.127 Notably, the "freeway" designation has very specific
parameters: "high mobility, low access, a posted speed limit of 55 mph or greater, full control of
access, no traffic signals, no driveways, and a minimum of four lanes with a median."lzg
In response to our initial comments on this matter, the Transportation Agencies further
underscore this point. Where we had noted that "the stated project purpose is to simply build a
freeway," the Agencies disagree, noting that in fact their predetermined design was far more
specific: to build "a controlled access, median divided freeway." 129 Such a narrowly tailored
project purpose does not pass muster under NEPA. Because the outcome was essentially �
preordained from the start, the analysis that follows in the EIS necessarily restricts itself to just
considering options that would result in a"controlled access, median divided highway,
"circuinvent[ing] the requirement that relevant alternatives be considered." 13o To legally comply
with NEPA, the underlying goals of increased mobility and safety should have been considered
more broadly and reasonable alternatives such as upgrading the existing road should have beeri
fully studied.
Importantly, the SHC was never subject to the public participation requirements of
NEPA. Under the recent adoption of the federal FAST Act, such planning products must meet a
set of requirements in order to be incorporated into an EIS.131 planning products must, among
other things:
•"include[] broad multidisciplinary consideration of systems-level or corridor-wide
transportation needs and potential effects, including effects on the human and
natural environment;"
•"include[] public notice that the planning products produced in the planning
process may be adopted during a subsequent environmental review process;"
izs FEIS at 1-3-1-4.
'z6 Id. at 1-7. NCDOT updated the Strategic Highway Corridors program in 2013 under the title of the Strategic
Transportation Corridors Plan, but "previous planning efforts under the SHC program remain valid and are
incorporated into current project development." Id. at 1-21. "�D]evelopment of the new STC policy is not intended
to alter ongoing or prior project development related to active SHC projects." Id.
127 The Super 70 Corridor Commission aims to provide freeway access that e�tends from I-40 to the port in
Morehead City. "This partnership is represented by the US 70 Corridor Commission, whose vision is to transform
US 70 into a freeway from Interstate 40 to the coast." Super 70 Vision Stat�ment (last accessed Feb. 16, 2015)
(Attachment 16).
1z8 See NCDOT, Facility Types and Control of Access Definitions at 3(Aug. 2005) (Attachment 17).
lz9 FEIS Appendix D, Response to SELC comments at 3.
13o City of New York, 715 F.2d at 743.
i31 Fixing America's Surface Transportation Act, PL 114-94 at 1388-89 (Dec. 4, 2015) ("FAST Act").
20

"[be] documented in sufficient detail to support the decision or the results of the
analysis and to meet requirements for use of the information in the environmental
review process;" and '
[have been] approved within the five-year period ending on the date on which the
information is adopted or incorporated by reference." 132 �
Likewise, there must be no "significant new information or new circumstance that has a
reasonable likelihood of affecting the continued validity or appropriateness of the planning
product.133
Importantly, the SHC has recently been replaced by the Strategic Transportation
Corridors Plan ("STC"), and a new draft STC policy specifically eliminates the "facility type
designations" written into the old SHC.134 In fact, despite the assertion in the FEIS that
"previous planning efforts under the SHC program remain valid" and "development of the new
STC policy is not intended to alter ongoing or prior project development related to active SHC
projects,i13s NCDOT's former Director of Strategic Planning, Susan Pullium, has explained that
the decision to eliminate facility type designations was based on the recognition that doing so
restricted the options the Department and local planning organizations could explore for
addressing transportation needs.136
The phasing out of the SHC, in addition to the elimination of facility type designations in
the STC because of the very flaw we assert here—the restriction of options for addressing
transportation needs—is absolutely a"significant ... new circumstance that has a reasonable
likelihood of affecting the continued validity or appropriateness of the planning product." As
such, the SHC does not meet the requirements for incorporation into the FEIS, and cannot be
relied upon to justify the narrow purpose of constructing a"controlled access median-divided
freeway."
B. The FEIS fails to adequatelv consider up�rades to the existin� hi�hway
infrastructure.
In our comments on the DEIS we suggested the Agencies consider a variety of
alternatives to the new-location Bypass including upgrades to the existing roadway network,
access management solutions, increased rail improvements. In addition, we noted that these
alternatives should be considered in combination.
1) Superstreets
Superstreets, or "Synchronized streets" are becoming an increasingly popular tool in
North Carolina to address traffic flow by providing efficient movement and increasing travel
�321a.
133Id. at 1389.
13a NCDOT, NC Strategic Transportation Corridors: STC Policy and Corridors Network, Board of Transportation
briefing presentation at 9(Feb. 4, 2015) (Attachment 18).
13s FEIS at 1-21.
136 Susan Pulliam, NCDOT, presentation before the North Carolina Board of Transportation Highways
Subcommittee (Feb. 4, 2015) (Attachment 19).
21

safety..137 Superstreets are specifically designed to handle congestion caused by traffic signals
and left-turning traffic,138 and can "dramatically improve travel" with the end result of "smoother
traffic flow, fewer collisions, and a more efficient use of public roadways."139 NCDOT has
emphasized that superstreets are "safer for vehicle travelers," with a 42% reduction in reported
crashes compared with traditional intersections, and safer for pedestrians.14o
Superstreets can provide traffic benefits when other alternatives are unavailable or
unfeasible, and have been shown to reduce travel time in multiple situations.141 A study
commissioned by NCDOT concluded that superstreets are "a viable option for upgrading
arterials ... where low volume, two-lane roads meet a high-volume, divided, four-, six-, or eight-
lane arterial." 142 The study noted that superstreets are "best suited for divided arterials with high
through and left turn volumes on the major road."143 That study also recommended "building
superstreets as a corridor rather than a single, isolated intersection where possible." 144 In sum,
the study concluded that superstreets are a viable option foz roads such as U.S. 70 though
Havelock.
Moreover, an April 2015 NCDOT fact sheet summarizing the benefits of superstreets
states that four lane superstreets "can serve through volumes of 40,000-50,000 vehicles" per
day.14s Currently traffic volumes through Havelock are approximately 31,000 vehicles per
day.146 NCDOT has suggested that superstreets would not be a viable option in the future
because of their expectation that traffic will skyrocket.147 As noted above, however, NCDOT's
expectation of 2% annual growth has no rational basis, traffic growth has been flat for the past
fifteen years. It is not clear that traffic is likely to grow at all, but if a more reasonable rate of .
tra�c growth is assumed the 0.83% briefly considered in the EIS—traffic volumes will reach
just 36,900 vehicles today, as shown in Figure 4 below.
13� Regional Transportation Alliance, Synchronized Streets (Superstreets) Brochure (Apr. 30, 2015) (Attachment
20). See also Stantec Consulting Services, Superstreets: A Tool for Safely and Efficiently Managing Congestion at
57 (Sept. 24, 2012) (Attachment 21) (listing the benefits of the superstreet concept, including: safety; time savings;
increased capacity; improved traffic flow; access management; and land use and corridor protection). See also
NCDOT, Synchronized Streets Flier (Attachment 22) ("Synchronized Streets can help alleviate congestion while
increasing travel capacity and reducing the number of collisions at intersections.").
138 C. Thompson and J. Hummer, Guidance on the Safe Implementation of Unconventional Arterial Designs at 1, 4,
16 (Sept. 17, 2001) (Attachment 23).
139 Synchronized Streets (Superstreets) Brochure, supf�a note 137.
�ao Id. See also Synchronized Streets Flier, supra note 137 ("Since there are significantly fewer conflict points in a
Synchronized Street, there are fewer opportunities for collisions.").
�41 J. Hummer, Superstreet Benefits and Capacities at 1, 54, 124 (Dec..2010) (Attachment 24).
'427d. at 128.
�a3 Id. .
� 44 Id .
ias Synchronized Streets (Superstreets) Brochure, supra note 137.
i46 FEIS at 2-31.
147FEIS Appendix D, Response to SELC comments at 2.
22

i—
G
�
�
�
w
a
FL-
>.
.W
G
ba
�
>
�
�
c
<
a0000
3500U
30000
�5000
20000
I5000
10000
5000
Figurc 4: Turecasted Annual AveraQe Daily'fraffic (AADT) Around Havelock with
0.83%� Growth � �q
2010 20I5 2020 2025 2030 2035 2040
Year
�—North (bct�vccn Stonehridez
Trnil unJ Church Road)
t�4iddle (betwezn Holly Drive
and Jackson Urive)
—�South (bete�een Cwmingham
Drire and I lollywood Blyd)
Uatn poi�us represern specifie
loca�iwu� on IIS i0 in the sn��h� area.
'!'he (C/S discusses traffic datn miJ
Jorecnsts as o rmige. from IoweaY to
hi¢hest. rnther d�m� using specirc
inlersec(ions.
Moreover, if the 2% traffic ��owth did materialize starting at the last recorded year for
traffic data-2014, traffic volumes would resch just 46.700 vehidcs pzr day. "`� All of these
volumes fall well helow the 50.000 vchicle threshold NCllOT has recognized as heing
accommodated by a fo�u� lanc superstreet.
I3ecause a four I�ne superstrect would not impact adjacent businesses in the same manner
as certain othcr upgrades, it would be less likel,y to cause the negative impacts associated with
restricted access options or a bvpass. �'" Superstreets can also be built without traffic signals,
although signals may bc necessary in busy locations. At an approximate cost of $ I OS,000 per
intersection, superstreets are signilicantly less capcnsive than a bypass, placine a smaller burden
on statc taspayers. �'� As such, superstrcets in combina[ion with othe;r u}�grades should have
been considered in the I'GIS as an alternative upgr�de to the existing roadway.
The transportation agencics, however, summarily excluded thin low-cost, effective
solution 1�rotro considcration by briefly noting that superstrects did nol meet NCDOT's "vision"
�" Figure 4 and an acmmpanyin� data table are atlached to these comments as Attnchment 60. Data obtained from
N('DO'1� Traflic Volume Maps,.nrprn notc 4+.
�'° �1"hc FEIS notes [hat in 2014 there tvere 31,OOD vehicles per day lraveling tlie curridoc If we assume an annual
gro��4h rate of 29� then by 2035 there woidd be'1G,985 vehicles per day in the corridor.
�`0 Superstreet Benefits and Capacities, supi�a nole 141 11 I..Sce nlsn C. Cunningham, F.cotiontic l:ffects o1'.-�ccess
1lanagement Techniyues in North Carolina at iv-vi (Dec.'010) (Attachment 36).
"' Guidance on Safc Implementation,.�vpra note 13R at 4, ID. 5'ee nlso Superstreet I3enefits and Capacities,.e�ipra
nute I41 at 128; Synchronized Streets Plier, suprci note 137 ("Synchronized Streeta are also cost effective because
[hey fit within the eaisting right of way. Interchanges, by comparison, are more costly because thcy can require
further land acyuisition and/or bridges, underpasses or access ramps to fully separatc thc hvo roads").
23

for a new freeway.152 This singular focus on a predetermined vision again violates NEPA's
purpose to explore and disclose alternative options to the public and decisionmakers.
2) Access Management
In 2012, after the publication of the DEIS, the U.S. 70 Corridor Commission released a
Draft Access Management Plan that included proposed access management measures for the
segments of U.S. 70 located in Craven County and in the area of the proposed bypass. NCDOT
completed a 1.5-mile median and signal improvement project in 2012, and as explained in the
FEIS, additional improvements are planned in the area of the U.S. 70/Slocum Road intersection
in Havelock as recommended in the 2005 Access Management Study and the Draft U.S. 70
Corridor Commission Access Management Plan.ls3 Those improvements include "median
closures, directional cross-overs, service road extensions, signal removal, and improvements to
the U.S. 70/NC 101 intersection."ls4
Access management measures, however, are summarily rejected without analysis by the
transportation agencies. The FEIS lists a number of TSM measures including both operational
and physical improvements, but then goes on to dismiss them as being incapable of reducing
traffic congestion enough to improve the levels of service on U.S. 70 to an acceptable level.lss
As noted above, this assessment assumes extremely high levels of traffic growth that cannot be
reasonably expected to occur.
Moreover, the FEIS also fails to examine the success of recently implemented TSM
improvements such as the median and signal improvement project completed in 2012. The EIS
fails to include any recent analysis of current travel times in the corridor to determine how these
improvements may have improved traffic flow. As such, the Transportation Agencies not only
failed to assess and present the current baseline, but they also passed up an opportunity to
determine the effectiveness of such measures.
Instead, the EIS simple states that "[t]he construction of these TSM improvements has
not reduced traffic congestion enough to im�rove the levels of service on U.S. 70 to an
acceptable level in the design year (2035)." 56 This simple statement combines a number of the
Agencies' repeat flaws. It relies on unreasonable projections of dramatic increases in traffic, it
arrives at a conclusion without any real time data, and it fails to consider how projects that have
already been implemented might combine with other solutions bring about the overall
improvement noted in the statement of purpose and need.
Cursory rejection of TSM improvements in this manner also ignores the success that such
improvements have had elsewhere in the state. NCDOT's implementation of TSM strategies
along US 74 in Union County demonstrate how effective these methods can be in decreasing
congestion. Beginning in 2007, "NCDOT implemented several measures to improve traffic flow
�52 FEIS Appendix D, Response to SELC comments on DEIS at 2.
�s3 U.S. 70 Corridor Commission, Draft Access Management Plan (Mar. 2012) (Attachment 27).
isa FEIS at 2-4.
�ss Id. at 2-3.
�s6ld. at 2-5.
24

along existing US 74 and partially mitigate congestion."157 TSM improvements were applied to
23 intersections along US 74 and included measures such as signal timing optimization and
directional crossovers.ls$ After implementing these low cost TSM strategies, average travel
speeds along US 74 increased from approximately 20 to 30 MPH in 2007 to approximately 40 to
44 MPH during peak travel times in 2013.1s9
U.S. 70 suffers from many of the same problems as U.S. 74 — too many driveways,
intersections and stop lights leading to congestion and traffic delays. As such, there is no reason
to suggest that solutions that have been effective along U.S. 74 would not be effective along U.S
70. Before NCDOT commits to moving forward with the Havelock Bypass, TSM strategies
should be studied independently, as well as in combination with other concepts, such as
superstreet improvements and expanded rail service. The Transportation Agencies should update
and expand the TJ.S. 70 Access Management Study, and fully analyze the measures proposed by
that study—as well as those proposed in the 2012 Draft U.S. 70 Corridor Commission Access
Management Plan—outlining the costs and effectiveness of access management measures
associated with more minor improvements such as closing median breaks and rerouting driveway
access along U.S. 70. Combined with other measures, access management could improve
mobility more than a bypass alternative and at a lower cost and with much less damage to the
natural environment.
3. Rail
The NCDOT Rail Division's 2015 Comprehensive State Rail Plan lays out the economic
and social benefits of freight and passenger rail, explaining that "[t]he state's rail network offers
a relief to highway traffic by providing an alternative route for passengers and freight." 16o The
economic benefits of rail are substantial, and "[t]ransportation irifrastructure is an investment
with a long life that plays an important role in shaping the state's future economy." 161 Freight
and passenger rail networks boast lower shipping costs, lower pavement costs associated with
wear and tear on roads, and lower congestion costs as highway travel is reduced.16z In fact, the
annual direct economic impacts of freight rail services in North Carolina is estimated at
approximately $1.75 billion, and the annual direct economic impacts of passenger rail services is
estimated at approximately $121 million.163 Rail use also results in broader social benefits, with
an estimated annual impact of $311 million in emis'sions and safety impacts.16a
Rail alternatives, however, are dismissed from consideration as a component of a multi-
modal transportation system with little discussion—the section on rail alternatives comprises less
than two pages.16s As admitted in the FEIS, "[a] number of ... rail improvement projects ... are
's' Monroe Connector Bypass Draft Supplemental Final EIS, Chapter 1 at 1-3 (Attachment 28).
iss Monroe Connector Bypass Draft Supplemental Final EIS, Chapter 2 at 2-10-2-12 (Attachment 29).
's9 Monroe Draft Supplemental Final EIS, Chapter 1, supra note 157 at 1-6-1-7.
'6o NCDOT Rail Division, 2015 Comprehensive State Rail Plan at 2-50 (Aug. 2015) (Attachment 30).
�6� la
16z See id. at 2-51.
i6s Id
lba Id. at 2-52.
16s FEIS at 2-7-2-8.
25

currently being studied or implemented." 166 This statement, however, is quickly followed by the
conclusion that those improvements "are not considered to be `reasonable alternatives' as part of
this project."16�
Rail has great potential, in combination with other reasonable upgrade alternatives, for
achieving the project's underlying purpose of providing efficient movement and increasing travel
safety. It is important, therefore, that the Transportation Agencies fully consider rail to reduce
demand on U.S. 70, particularly for its ability to mitigate congestion and increase safety.
i) Freight rail
There are currently more than 3,200 miles of freight railroads in North Carolina and plans
to expand.168 The 2015 Comprehensive State Rail Plan highlights future infrastructure
improvements to facilitate increased freight travel by rail, designating the rail improvements
from Selma and Global TransPark to Morehead City as a priority.169 The U.S. 70 Commission
recognizes the need for rail service between Global TransPark and the port in Morehead City to
avoid congestion on U.S. 70,170 and improved rail access for that route is a core aspect of the 25-
Year Vision for North Carolina. l�l
Expanded freight rail in the U.S. 70 corridor could go a long way to taking truck traffic
off of U.S. 70, reducing congestion and increasing safety. Indeed, as stated in the 2015
Comprehensive State Rail Plan, "[u]tilizing rail is a cost-effective way to gain travel capacity in
high-use corridors," and increased rail capacity provides significant benefits in the way of
congestion mitigation, safety, and reduced emissions.172 Because of the benefits of freight rail
and its potential to be enhanced in the project study area, it should have been more thoroughly
studied in the FEIS.
The FEIS, however gives short shift to freight rail alternatives, "a large number of rail
improvements would be needed to considerably reduce truck traffic on U.S. 70 through
Havelock," and "there is no single or specific set of rail improvements or combination of
multimodal improvements that would reduce truck traffic on U.S. 70."173 Therefore, according
to the FEIS, "there is no reasonable alternative that includes rail improvements."174 These vague
statements and conclusion fail to comply.with the rigors of NEPA, which requires the agencies to
examine how expanded freight rail might�combine with other reasonable upgrade measures to
meet the underlying purpose of the project. �
166Id at 2-8.
�6� Id
16a 2015 Comprehensive State Rail Plan, supra note 160 at 21.
169 See id. at 4-9. See also Railway, Track & Structures, NCRR commits more than $13 million in rail improvements,
(Nov. 25, 2014) (Attachment 31).
l�o Super 70 Corridor Commission, March 17, 2011 Meeting Minutes at 5(Attachment 32).
��� See 25-Year Vision for North Carolina, Mapping Our Future (Attachment 33).
t�2 2015 Comprehensive State Rail Plan, supra note 160 at 2-101.
13 FEIS at 2-8. -
l�a Id. at 2-8.
�

'ii) Passenger rail
The FEIS correctly notes that there are two railroads currently servicing Havelock and
that neither offers passenger service at this time.175 Amtrak, however, expanded service into
eastern North Carolina in 2012, providing a Thruway bus connection between Morehead City,
Havelock, New Bern, Greenville and the Amtrak station in Wilson, North Carolina.176 Before
settling on this Thruway route, Amtrak specifically cited the military population of eastern North
Carolina as a reason for considering expansion into the area.l�� As reported in Amtrak's FY
2014 report for i"ts operations in North Carolina, the new route through Havelock "ha[s]
experienced a steady growth in ridership." 178 In sum, Amtrak operations in North Carolina
reported nearly 1 million boardings and de-boardings in 2013 alone—almost double its 2001
ridership of 500,000.179 In addition, between 2011 and 2013, passenger rail activity ai North
Carolina stations has increased by 8.3%.lso
Amtrak expansion has received interest from the Super 70 Corridor Commission and has
been endorsed by local governmental agencies.181 NCDOT also continues to consider future
expansion in eastern North Carolina, and "station planning is underway ... to complement future
passenger service in the region."182 The FEIS, however, rejects this alternative in part because
"[d]ue to the level of forecasted traffic volumes and mix of regional through traffic, passenger
rail was not deemed to be a feasible alternative." 183 Again, these overstated traffic volumes
cannot be used to artificially eliminate alternatives in this manner. �
Because Amtrak expansion is supported by the Super 70 Corridor Commission, because
it could alleviate through traffic congestion on the existing corridor and because it could provide
access for travelers to Morehead City and Carteret County beaches, passenger rail—both the
Thruway service and potential future expansions—should have been considered in greater detail
in combination with other upgrade existing alternatives.
C. The FEIS fails to demonstrate that the detailed study alternatives actuallv
meet the proiect �oals of improved mobility and safety. �
The FEIS makes clear that NCDOT's real intent in pursuing this highway project is to
realize the "vision" of a"controlled access, median-divided new location freeway." By contrast,
the more substantive, general stated goals of improving mobility and safety are given short shrift.
In fact, information in the FEIS suggests that the preferred alternative will likely not meet those
goals.
"s Id. at 1-14, 2-7.
16 Amtrak, News Release: New Service Provides Amtrak Passengers Access to Eastern North Carolina (Aug. 29,
2012) (Attachment 34).
"' Super 70 Corridor Commission, Jan. 13, 2011 Meeting Minutes at 6(Attachment 35).�
"$ Amtrak, FY 2014 North Carolina Fact Sheet (Nov. 2014) (Attachment 36).
1�9 2015 Comprehensive State Rail Plan, supra note 160 at 2-14.
i ao Id
18� Jan. 13, 2011 Meeting Minutes, supra note 177; Mar. 17, 2011 Meeting Minutes, supra note 170.
182 2015 Comprehensive State Rail Plan, supra note 160 at 2-16.
Is3 FEIS at 2-7.
27

1. Mobility
First, while the FEIS claims that levels of service are improved by selecting the preferred
alternative over the no-build alternative, this claim is misleading. Level of Service ("LOS") is
the effect of a number of factors such as speed, travel time, �traffic interruptions, freedom to
maneuver, driving comfort, convenience and safety. Six levels are defined, from A to F, with A
being the most desirable level. � 84 Here, the data on levels of service at intersections should assist
the decision maker in discerning how a particular intersection functions and provide a basis for
comparing whether changes will allow it to function at a higher level of service.
The FEIS projects that "only five of the thirteen signalized intersections ... will operate
at an acceptable LOS" by the design year 2035 under a no-build scenario.185 First, as noted
above, the projected LOS are all based on levels of traffic growth that cannot be reasonably
expected to occur. In addition, the FEIS fails to provide projected levels of service for design
year 2035 for those same intersections if the bypass is built. Instead, it only provides a LOS
analysis for the new-location bypass itself, projecting that the bypass will operate at LOS A and
B.186 Any analysis of existing U.S. 70 LOS after construction of a bypass was excluded from the
FEIS.187 The FEIS simply admits, without explanation, that `.`[a]lthough the proposed bypass
would reduce through traffic volumes on existing U.S. 70, projected traffic volumes on the
existing route in 2035 would still exceed system capacity." 188 Elsewhere in the FEIS, the
transportation agencies note the desire of the City of Havelock to return U.S. 70 to "main
street."189 Because the EIS fails to examine the conditions that will be present on U.S. 70 in the
future if the Bypass is constructed there is no way to determine if this "main streef" ideal is �
achievable.
2. Safety
Second, the selection of the bypass alternatives is not supported b�y data regarding safety
in the project study area. The FEIS must consider alternatives to the proposed action that may
partially or completely meet the proposal's goal and it must evaluate their comparative merits. t90
One of the underlying purposes of the proj ect is to improve safety, but the Preferred Alternative
has not been shown to significantly advance that purpose relative to other potential investments.
Craven County had the highest number of crashes, 1,194, of all the U.S. 70 counties over the
three-year period from 2004-2007.191 From October 1, 2009 through September 30, 2012, the
crash rate for the U.S. 70 project study area was 312.02 crashes per 100 million vehicle miles
traveled.192
isa Id. at 1-29.
'$S ld. at 1-4.
ls6 Id. at 2-29.
187 The FEIS includes Exhibit 2.8.1, a"2035 Estimated Average Annual Daily Traffic with Bypass Alternative 3,"
but this map is not sufficierit to explain to readers what the LOS projections are for 2035. See id. at 2-27.
188 Id. at 2-14. The DEIS, in contrast, provided an LOS analysis and concluded that existing U.S. 70 "will still
e�erience poor tra�c operations ... by the design year." DEIS at 2-28-2-29.
ls9 See, e.g., FEIS at 2-2-2-3.
190 Natural Res. Def. Council v. Callaway, 524 F.2d 79, 93 (2d Cir. 1975).
19' U.S. 70 Corridor Commission, Crash Summary 2004-2007, Craven County at 2(Attachment 37).
192FEIS at 1-26.
28

While the FEIS notes that crash rates in the pro�ect area exceeded the state averages for
four lane roads with partial or fully controlled access, I 3 the FEIS provides no quantifiable data
that a new location bypass will actually reduce accident rates along this section of U.S. 70—it
simply states that "the frequency of crashes would be lower than the no-build scenario because
the proposed bypass is expected to divert a significant amount of traffic." 19a Much like the
discussion of Level of Service, the FEIS forgoes a data-driven analysis of accident rates on
existing U.S. 70 under a"build" scenario, and focuses instead on the assertion that the bypass�
itself will experience a low accident rate. There is no data whatsoever to support the assertion
that diverting a portion of traffic to a new bypass will recluce accident rates on existing U.S. 70
and thus accident rates overall.
Because increased safety is named as a key underlying purpose of the proposed project,
the Transportation Agencies must provide a comparative, data-driven analysis examining the
extent to which the various alternatives would actually result in safety improvements.
V. AS PROPOSED, THE HAVELOCK BYPASS WOULD 'I'HREATEN THE
CONTINUED EXISTENCE AND RECOVERY OF THE RED-COCKADED
WOODPECKER, VIOLATING SECTIONS 7(A)(1) AND 7(A)(2) OF THE .
ENDANGERED SPECIES ACT.
The Endangered Species Act ("ESA") imposes substantive requirements on each of the
federal agencies involved in the consideration of the proposed Havelock Bypass and the
management of RCW populations in the Croatan National Forest. Section 7(a)(1) of the ESA
imposes "a specific, rather than a generalized duty to conserve species." 19s To conserve means
"to use ... all methods and procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant to this chapter are no
longer necessary."196 Therefore, FHWA, U.S. Forest Service ("USFS"), U.S. Fish and Wildlife
Service ("FWS"), and the U.S. Army Corps of Engineers ("Corps") each have a legal obligation
to advance the recovery of the RCW.
In addition, Section 7(a)(2) requires each federal agency to "insure that any action
authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued
existence of any endangered species or threatened species." 197 As a result, FHWA and the Corps
must affirmatively demonstrate that the proposed bypass will not jeo�ardize the continued
existence of the RCW.
We appreciate that the Transportation Agencies have worked to reduce the width of the
proposed bypass in consideration of its impact on the RCW, but narrowing the right of way in
one territory of the many that would be affected by Alternative 3 is insufficient to meet legal
requirements. Our 2011 comments on the DEIS describe the importance of suitable habitat to the
'93Id. at 1-34.
i9a Id
'9s Fla. Key Deer v. Brown, 364 F.Supp.2d 1345, 1361 (S.D. Fla. 2005).
'96 16 U.S.C. § 1532(3). �
197 Id § 1536(aj(2). ,
29

recovery of the RCW, detail the importance of the CNF population to the species as a whole, and
describes how the CNF population is falling beliind recovery goals.198 As discussed below, the
FEIS fails to adequately address the potential impacts of the proposed highway on the RCW,
-particularly with respect to prescribed burning. Further, because of the status of the RCW as an
endangered species, any action taken based on the information and analysis provided in the FEIS
would violate the ESA.
A. The FEIS Fails to Provide a Speci�c, Enforceable Plan for Prescribed
Burnin�
As discussed at length in our comments on the DEIS,199 the RCW is endangered because
of, and continues to be harmed by, loss of suitable habitat. Fire is critical to each aspect of RCW
habitat and resulting individual fitness,200 and fire suppression is a"profound threat" to RCW
populations.201 Prescribed burning will become exceedingly difficult if the Havelock Bypass is
built particularly without a plan in place for regular burns. This conclusion is inescapable
considering the difficulty of carrying out prescribed burns near highways and developed areas,2°z
the history of burning in the CNF203, and NCDOT's lack of definitive commitment to close the
proposed bypass for burning. As explained in detail below, this failure to provide a specific,
enforceable plan for prescribed burning violates NEPA.
It is important for the Transportation Agencies to understand their obligation with respect
to prescribed burning. The entire EIS rests on an assumption that prescribed burning will
occur—not simply that it will be possible. The RCW and PETS analyses accept as a
foundational premise that prescribed burning will take place according to the LRMP. As the
Fourth Circuit held in Friends of Back Bay, it is not enough to be "hopeful" that an assumed
activity that is the foundation of an environmental analysis will occur, carrying out of the
required action must be "assured." 681 F.3d at 589. Therefore, any agreement that the
198 SELC comments on DEIS at 6-14 (Nov. 22, 2011) (Attachment 38).
t 99 Id
2oo NCDOT has recognized that "no other methods of habitat maintenance achieve the same level of effectiveness as
burning." Letter from Terry Gibson, NCDOT, to Marisue Hilliard, USFS, at 1(Jan. 9, 2012) (Attachment 39). In
addition, as emphasized by FWS in its comments on the DEIS, "in lieu of prescribed fire management, the Service
has repeatedly stated that [it] believe[s] adverse indirect effects would occur, resulting in incidental take of the
species and interminably delaying species recovery." FEIS Appendix D, Response to DEIS Agency Comments at
29. '
zoi U.S. Fish and Wildlife Service, Recovery Plan for the Red-cockaded Woodpecker (Picoides borealis): second
revision at 5(2003) (Attachment 40). See also id. at 71 ("prescribed fire is a fundamental solution to the
conservation of [RCW] and their ecosystems."); LRMI', supra note 7 at 6("[w]idespread and frequent application of
early-mid growing season fire throughout lands managed for red-cockaded woodpeckers is essential to the recovery
of the species.").
2°Z The DEIS recognized some of the difficulties in conducting prescribed burns, noting that "decisions to burn are
determined at the last minute based on wind speed and direction, humidity." DEIS at 4-74. See also Interagency
Prescribed Fire: Planning and Implementation Procedures Guide (July 2008) (Attachment 41) (describing 21
elements of a prescribed burning plan that must be evaluated before any burning can move forward).
zo3 As stated in the DEIS, the USFS has not recently met its prescribed burning goals. DEIS at 4-71.
30

Transportation Agencies reach with USFS regarding prescribed burning must not only ensure
that prescribed burning is possible, but that it will—in fact--occur in perpetuity.Zoa
The Transportation Agencies fail entirely to demonstrate that sufficient burning will
occur if the Havelock Bypass is constructed, and instead relies on vague promises and
assumptions. Instead of committing to close the proposed bypass to allow for prescribed burning,
NCDOT has formulated a"conceptual plan"205 that does not include any enforceable
commitments. In fact, the FEIS simply relies on the same "conceptual plan," or "agreement"
cited in the DEIS and derived in a March 2011 meeting between�NCDOT and USFS, now.
summarized in a January 9, 2012 letter.2o6
The vagueness with which the FEIS discusses closing the road is critical because
prescribed burning is essential to maintaining habitat, but also because NCDOT has previously
refused to commit to doing so.207 In addition, it is not clear that, even if NCDOT closes the
highway, the Forest Service will be able to burn east of the road. The DEIS describes NCDOT
and the USFS' effort as attempting to "minimize the likelihood that the Bypass will further
„aos
complicate prescribed burning in the project area. In the past, the Forest Service has stated
that even if the highway were closed, it still could not burn between the Bypass and Havelock,2o9
which would result in the loss of suitable or potentially suitable RCW habitat. Therefore, a
conceptual agreement to close the road is insufficient to demonstrate that prescribed burning
would be implemented on forest land between the Bypass and Havelock.
Even the "conceptual" agreement fails to account for the additional difficulties NCDOT
would encounter in closing an interstate with sufficient frequency to adequately manage RCW
habitat. The U.S. 70 Corridor was recently listed as a High Priority Corridor, meaning there is an
increased likelihood that NCDOT and FHWA will attempt to convert the proposed Bypass into
an interstate in the future. 210 Local officials have noted their support of designating U.S. 70,
including the proposed Bypass, as an Interstate. 211 Moreover, NCDOT has publicly noted its
support for the interstate designation yet offered no analysis of the impact that such designation
might have on the agency's ability to close the Bypass periodically for burning.212 The effect of
such a designation must be addressed. _
zoa It is clear that NCDOT can ensure burning will take place. The Agency funds positions in numerous agencies—
ensuring that those agencies have adequate capacity to facilitate approval of NCDOT projects. Nothing prevents
NCDOT from providing similar funding to USFS to conduct prescribed burning and habitat maintenance.
zos FEIS at 7-6.
zoe Id. at 4-70�-71. '
207 See Notes by Gary Jordan, FWS, Oct. 18, 2010 Meeting with USFS, NCDOT, FHWA, and JCA (Attachment
42). See also Notes by Gary Jordan, FWS, Oct. 6, 2010 Meeting with USFS in Raleigh (Attachment 43).
208 DEIS at 4-71.
Zo9 See Email from Gary Jordan, FWS, to Mark Pierce, NCDOT (Oct. 7, 2010) (Attachment 44).
zio FAST Act, supra note 131 at 1416(a)(83).
21 Carteret County Chamber of Commerce, Chamber urges NCDOT to move ahead with Havelock Bypass (Sept.
21, 2015) (Attachment 45); Letters to Congressional Delegation (Aug. 10, 2015) (Attachment 46) (letters from U.S.
70 Corridor Commission and Havelock Mayor, supporting interstate designation bill).
2�2 NCDOT, NCDOT Offers Thanks and Support for Military Corridor Transportation Improvement Act (Apr. 16,
2015) (Attachment 47); Eddie Fitzgerald, Bill would upgrade U.S. 70 to interstate status, New Bern Sun J. (Apr. 17,
2015) (Attachment 48). See also Oct./Nov. Super 70 Corridor Commission Director's Report (Attachment 49)
(discussing interstate designation and NCDOT preparation of"future interstate" signs).
31

As the Fourth Circuit has made clear, blanket reliance on unsubstantiated material
assumptions violates NEPA.213 In Friends of Back Bay, the Fourth Circuit held that the US Army
Corps of Engineers' assumption regarding the effectiveness of a mitigation measure, absent any
evidence that it would be adequately enforced, was arbitrary and capricious.214 Specifically, the
Corps claimed that a No Wake Zone would mitigate the impacts of motorized watercraft to Back
Bay National Wildlife Refuge. The NEPA document prepared by the Corps, however, offered no
indication that the No Wake Zone would ever be recognized or followed by the public, and thus
provided no reasonable basis to conclude that the No Wake Zone would be an effective
mitigation tool.
Just like the environmental documentation in Friends of Back Bay, the FEIS prepared for
the Havelock Bypass operates under an unsubstantiated material assumption—that NCDOT will
close the Bypass as needed to allow prescribed burning to take place in the appropriate season
and at a sufficient level to sustain the habitat needed for the RCW population. The FEIS offers
no detail about how and when future burning will occur and no binding commitment from
NCDOT that the road will be closed to allow for prescribed burning in the future. �
Terry Gibson's January 9, 2012 letter to Marisne Hilliard ("Gibson Letter") does not
ameliorate this fundamental flaw. The letter restates the assumptions included in the DEIS, and
later in the FEIS, and states that "[u]nder these general conditions" and the meeting minutes
describing them,215 NCDOT agrees to close the Havelock Bypass "when necessary." The letter
fails to provide any additional details about the scheduling of prescribed burns, avoids discussion
of any of the practical issues involved with conducting prescribed burns, particularly during the
construction of the bypass itself, which may take several years, and omits criteria and procedures
that would be used to determine whether and how to close the road. Moreover, complete
discretion as to whether closing the road is "necessary" lies with NCDOT and the agency does
not face any repercussions if it never closes the road to allow for burning. �
The assumption in the Havelock FEIS and the Gibson Letter that a sufficient level of
burning will occur is no different than the assumption made by the Corps in the Back Bay case
regarding the No Wake Zone. There, the Corps assumed that a No Wake Zone would protect
habitat and relied on that assumption as the basis for its evaluation of environmental impacts.
Here, NCDOT and USFS have assumed that NCDOT will close the Bypass and the USFS will
carry out prescribed burning, and relied on that assumption when evaluating environmental
impacts. Just as the No Wake Zone was a"foundational proposition" upon which the NEPA
document was based, so is the assertion that NCDOT will close the Bypass to allow, and USFS
will conduct, a sufficient level of prescribed burning to sustain essential habitat. As with
enforcement of the No Wake Zone, commitments and details about the closure of the Bypass and
prescribed burning are entirely absent from the FEIS. .
Without specific, enforceable commitments and further details about the plan for
prescribed burning, agencies and the public are helpless to comment on the impact and efficacy
z'3 See Friends ofBackBay, 681 F.3d 581; N.C. Wildlife Fed'n, 677 F.3d 596.
zia Friends of Back Bay, 681 F.3d at 588-89.
zis NCDOT, Minutes from Mar. 17, 2011 Prescribed Burning Meeting (Attachment 32).
32

of the proposed bypass, and thus the purpose of NEPA is eviscerated.z16 Eliciting that comment
is an essential purpose of the Act, and for that reason, general conditions cannot satisfy NEPA. If
the USFS and NCDOT contend that burning will occur east of the proposed bypass—and FWS is
to rely on that assumption—the agencies must develop a specific, enforceable plan that both
confronts the complexities of prescribed burning and transfers discretion to close the proposed
bypass to USFS. The mandatory nature of those requirements is at the heart of the Fourth
Circuit's Back Bay decision, which rejected the Corps and FWS's plan because it "neither
mandate[d] enforcement of the NWZ nor guarantee[d] funding therefore," but instead relied on
the hope of compliance.217 NCDOT, USFS, and FWS are duplicating that exact error here by
relying on vague, unenforceable assumptions regarding prescribed burning east of the proposed
bypass and, as a result, join the BackBay defendants in violating NEPA. Here, that error is
compounded by the effect of relying on those vague assumptions for the protection of an
endangered species.
Rather than providing those details at a stage during which agencies and the public can
provide comment, the FEIS improperly relies on the Record of Decision ("ROD") for such
documentation.218 In the FEIS, for example, the Transportation Agencies responded to earlier
SELC comments on the prescribed burning plan by stating that "specific detail, beyond the letter
and description included in the FEIS is currently being developed."219 Similarly, in written
correspondence with NCDOT in March 2015, USFS outlined several concerns to be addressed
by Transportation Agencies in the ROD: "gates/enforcement, advance signing, advance
notification, and timing windows."22°
A specific, enforceable prescribed burning plan is central to the decisionmaking process
at hand, and its absence from the FEIS cannot be remedied in a ROD. A ROD is meant to
identify the decision that has been made, identify the alternatives that were considered, and state
whether any means to avoid or minimize environmental impact have been adopted.2z1 It is the
final word in the decisionmaking process—a summary and explanation of the decisionmaking
process that has already taken place. A ROD is not tlie appropriate place to provide new
information and analysis.
One of the core purposes of NEPA is for the public to be involved in the decision-making
process concerning large projects that will adversely impact the environment, and NEPA
requires the opportunity for "the public and other government agencies to react to the effects of a
proposed action at a meaningful time."Z22 Itnportantly, while agencies and the public can
comment on an EIS, there is no opportunity to cominent on a ROD. The inclusion of significant
new information and analysis in a ROD would therefore go entirely unscrutinized. �
z'6 See N.C. Wildlife Fed'n, 677 F3d at 603 n.2.
Z" Friends ofBackBay, 681 F.3d at 587.
21$ FEIS Project Commitments at 7("NCDOT Division 2 staff will coordinate in future years with the USFS to
allow for prescribed burns on NFS lands during construction and in the future, as detailed in Appendix A of this
FEIS. Details of the prescribed burn plan will also be documented in the ROD.").
2'9 FEIS Appendix D, Response to SELC comments.
22° USFS Comments on Draft FEIS (Mar. 6, 2015) (Attachment 50). �
zz' 40 C.F.R. § 1505.2.
zzz N.C. Wildlife Fed'n, 677 F.3d at 601 (quoting Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 371 (1989))
(emphasis added).
33

Instead, the information supporting an agency's decision must be in the EIS itself in order
to ensure that "environmental information is available to public officials and citizens before
decisions are made.i223 Indeed, "[w]hen relevant information `is not available during the [impact
statement] process and is not available to the public for comment[,] ... the [impact statement]
process cannot serve its larger informational role, and the public is deprived of [its] opportunity
to play a role in the decision-making process."'224 Putting off key concerns to a later stage is also
inconsistent with the requirements of MAP-21 and the FAST Act, the purpose of which are to
enhance interagency coordination and ensure that issues of concern are identified and dealt with
early in the NEPA process.z25
Accordingly, an EIS, and not a ROD, is required to provide "full and fair discussion of
significant environmental impacts and ... inform decisionmakers and the public of the
reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality
of the human environment."z26 Here, the details of the prescribed burning plan, once created,
should be included in a Supplemental EIS. �
B. Authorizing the Proposed Bypass Based on the Information and
Assumptions Included in the FEIS Would Violate Sections 7(a)(1) and
7(a)(2) of the Endan�ered Species Act.
The ESA requires every federal agency to conserve listed species and rohibits any
agency from jeopardizing the continued existence of any endangered species.�27 The FEIS fails
to provide the information and analysis necessary to satisfy those requirements. To be sure, it
excludes perhaps the most critical piece of information—a detailed agreement between NCDOT
and USFS that would allow prescribed burning to take place east of the proposed highway.
Without that agreement and an analysis of its impact on each alternative, the discussion of
potential impacts in the FEIS is substantially incomplete. As the DEIS and FEIS recognize,
whether or not prescribed burning can take place on the fragmented sections of forest land will
substantially affect the impacts of the proposed bypass on the RCW as well as the remainder of
the CNF population due to the role of Subpopulation 3 in unifying the overall population. The
omitted prescribed burning assessment is, therefore, an essential part of the analysis.
To be sure, the FWS concurrence with Transportation Agencies' biological conclusion
that the project."may affect, but is not likely to adversely affect;" the RCW was based in part on
NCDOT's agreement to allow periodic closures for prescribed burns.228 "With implementation
of the prescribed burning of the [RCW] habitat ... USFWS anticipates a finding that the
proposed Havelock Bypass `may affect, but is not likely to adversely affect' the species."Z29 On
2z3 40 C.F.R. § 1500.1(b) (emphasis added).
224 N.C. Wildlife Fed'n, 677 F.3d at 604-OS (quoting N. Plains, 668 F.3d at 1085).
zzs See 23 U.S.C. § 139.
ZZ6 40 C.F.R. § 1502.1.
Zz� 16 U.S.C. § 1536(a)(1), (2).
2z$ See FWS RCW Concurrence Letter (Nov. 19, 2013) (Attachment 51).
zz9 FEIS Appendix A, minutes from March 2011 meeting.
34

the other hand, "[w]ithout prescribed burning to maintain the RCW habitat, USFWS anticipates a
jeopardy call for the species."23o �
Particularly relevant here, "reliance on the proposed actions of other agencies does not
satisfy the FHWA's burden of insuring that its actions will not jeopardize the continued
existence" of the RCW.231 Unlike the conceptual plan proposed here, "[m]itigation measures ,
under the ESA must be reasonably specific, certain to occur and subject to deadlines or other
forcible obligations."232 By comparison, the proposed plan to close the highway and implement
prescribed burning on fragmented segments of forest land is not specified, certain to occur, or
subject to any enforceable obligations.
Courts have made clear that federal agencies cannot gamble the continued existence of
endangered species on "conceptual" plans like the one this FEIS relies upon. The ESA is "the
most com�rehensive legislation for the preservation of endangered species ever enacted by any
nation."23 Thus, to meet its rigorous standards, "a far more subtle calculation than merely
totaling the number of acres to be asphalted is required where the environmental impact of a
project is at issue."z34 Where, as here, federal agencies fail to demonstrate that an endangered
species "can survive the additional loss of habitat caused by the indirect effects of the highway,"
they violate the ESA.23s
VI. THE FEIS UNLAWFULLY EXCLUDES A SECTION 4(F) ANALYSIS.
Section 4(fl of the Department of Transportation Act, 23 U.S.C. § 138, prohibits the U.S.
Department of Transportation ("USDOT") from approving a project that "requires the use of any
publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of
national, State or local significance" unless "(1) there is no feasible and prudent alternative ...
and (2) such program includes all possible planning to minimize harm ...."Z36 The FEIS
acknowledges this restriction, but then improperly determines that it does not apply to the
proposed Bypass.237 As discussed below, DOT must conduct a 4(� analysis before any impacts
to the CNF can be approved because each of the proposed corridors, including the Preferred
Alternative, would affect recreation and wildlife areas that are protected by the statute.
First, the proposed bypass would impact portions of the CNF that hold significant
recreational value. Recreation is, in fact, one of the Forest Service's priorities under its current
management plan for the CNF. The LRMP identifies increasing non-traditional recreational
opportunities such as bilcing and equestrian activities, as well as expanding hunting, fishing, and
wildlife-related recreational opportunities, as two issues to be addressed in management decision
230 la.
z3' Nat'l Wildlife Fed'n v. Coleman, 529 F.2d 359, 374 (Sth Cir. 1976).
23Z Fl. Key Deer, 364 F.Supp.2d at 1355.
z33 Tenn. ValleyAuth. v. Hill, 437 U.S. 153, 180 (1978).
zsa Coleman, 529 F.2d at 373 (quoting D. C. Fed'n of Civic Ass'ns v. Volpe, 459 F.2d 1231, 1239 (D.C. Cir. 1972)).
235 Id
z36 23 U.S.C. § 138(a).
23' FEIS at 3-38 ("No sites affected by the proposed bypass are currently designated as public recreation areas
subject to Section 4(fl regulations. ... There are no refuges, historic sites, or public parks within the project study
area."). See also FEIS at 4-19 ("[A] Section 4( fl evaluation is not necessary for this project as proposed.").
35

making.238 The FEIS recognizes these existing uses and states that "visitors to the CNF within
the project study area are predominantly engaged in dispersed recreational activities such as
hunting, hiking, fishing, and wildlife and bird watching."239 The FEIS also notes that camping is
permitted in this portion of the CNF,240 and the 2011 DEIS described the CNF as "gameland
open to fishermen and hunters with the proper licenses and permits."241 �
Second, the area that would be affected by the proposed highway is a designated wildlife
area. The area functions as habitat for the RCW, and large portions have been designated by the
Forest Service as Habitat Management Areas ("HMAs") for the future expansion of RCW
populations. As noted in the FEIS, the proposed bypass would affect five RCW clusters and four
recognized HMAs.242 These areas are critical to meeting the LRMP's long-range goal of
"[r]ecover[ing] a viable population" and would directly affect the objective of "[m]aintain[ing]
the existing 12,000 acres of longleaf pine forest type as pine savanna."243
In addition, portions of CNF lands are designated as black bear sanctuary by the N.C.
Wildlife Resources Commission ("NCWRC"). In the current Black Bear Management Plan, the
NCWRC reports that nearly a quarter of all black bear harvest on game lands in the Coastal Bear
Management Unit occurred in the Croatan.244 The Forest Service has also identified a goal of
providing "suitable habitat conditions for long-terin viability of the black bear population on the
CNF."245 This goal is included in the LRMP, which aims to provide "landscape linkages to other
bear habitat and potential foraging areas on public and private land."246 The sanctuary land that
would be affected by the proposed highway currently connects public and private land, providing
this type of landscape linkage.
Lastly, as the FEIS acknowledges, the proposed bypass would impact two significant
Natural Heritage Areas that have been specially recognized by the N.C. Natural Heritage
Program. The Southwest Prong Flatwoods Natural Area is recognized as being state significant,
meaning it is among the best occurrences of that type of wildlife community in North Carolina.
The Havelock Station Flatwoods and Powerline Corridor Natural Area has been recognized as
regionally significant, meaning that it is among the most outstanding examples of that wildlife
community in the surrounding region.
Despite the recognized signifcance of these public lands as recreation and wildlife areas,
the FEIS blithely asserts that Section 4(� is not implicated. "Although the CNF would be
impacted by the Preferred Alternative, no impacted areas are designated as recreational areas or
national wildlife refuge lands."247 It is not necessary, however, that the lands be designated for
Section 4( fl purposes just that they function for Section 4( fl purposes.
238 LRNII', supra note 7 at 50-51.
239 FEIS at 3-32.
zao Id. at 3-32.
24' DEIS at 3-50.
24z FEIS at 4-73.
zas LRMP, supra note 7 at 46.
244 N.C. Wildlife Resources Commission, 2012-2022 Black Bear Management Plan at 41 (Attachment 52).
zas LRMP, supra note 7 at 48.
z461a.
Z4' FEIS at 5-21.
�

When it adopted Section 4(�, Congress recognized the importance of public lands and
mandated the preservation of those areas.248 FHWA regulations further provide that the
prohibition on impacts to public lands applies to "lands which function for, or are designated in
the plans of the administering agency as being for, significant park, recreation, or wildlife and
waterfowl refuge purposes."Z49 Federal Courts have lilcewise recognized that lands functioning
for an enumerated purpose, in addition to those designated as such, fall under the protections of
Section 4(�. Courts have noted that the plain language of the statute "contains no requirement
that the public parklands to which [4fJ applies be permanently designated as such" and have
"decline[d] judicially to engraft such a requirement on the statute, given the Congressional policy
expressed in the statute that parklands be afforded heightened protection."2so ,
In other words, public land is a Section 4(� resource if it is "`designated or administered,
formally or informally[,]' for a purpose identified in section 4(�."251 In Arizona Wildlife Fed'n v.
Volpe, a federal court held that an area of national forest land was a Section 4(� resource despite
the Forest Service's determination that is was not a"proclaimed" recreation area.252 The court
emphasized that the land in question was widely used for public recreation, and that the Forest
Service therefore recognized and administered it as a recreation area of local, state, and possibly
national significance.253 Indeed, as described above, any of the three proposed corridors studied
in detail in the FEIS would significantly affect public lands that function for, or are designated
as, recreation and wildlife areas protected under Section 4(�.
The Transportation Agencies hinge their conclusion primarily on correspondence
received from USFS in 1998, which stated with little explanation that the proposed project does
not implicate Section 4(�.254 In addition to predating the applicable regulation, this cursory
determination has been contradicted by staff at both the FWS and FHWA. Iri 1998, the FWS
criticized the Environmental Assessment as incomplete for failing to address Section 4(� based
on the "understanding that National Forests have been established using Federal funding and
among their purposes are use and enjoyment of recreational opportunities by the public."2ss
Again in 2010, an FHWA engineer observed that "[t]here seem to be 4f issues associated with
this project."256 "Given that the proposed bypass will destroy portions of USFS lands designated
24$ 23 U.S.C. § 138(a) ("It is declared to be the national policy that special effort be made to preserve the natural
beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.").
249 23 C.F.R. § 774.11(d) (emphasis added).
zso Stewart Park and Reserve Coal. v. Slater, 352 F.3d 545, 555 (2nd Cir. 2003) (holding that that the "uninterrupted
and purposeful use by the public" of the affected lands for "hunting, fishing, hiking, biking, birdwatching, horseback
riding, and numerous other outdoor pursuits" for almost 30 years made that land a Section 4( fl resource, despite
being "originally acquired for transportation purposes and ... never permanently designated as parklands").
Zs' Mullin v. Skinner, 756 F: Supp. 904, 924 (E.D.N.C. 1990) (quoting Coleman, 529 F.2d at 370).
ZSz 4 E.R.C. 1637 (D. Ariz. 1972).
z531a.
z54 FEYS at 4-18. See Letter from J. Ramey, USFS, to R. Davis, NCDOT (May 1, 1998), DEIS Appenclix A1. "The
proposed highway project does not require the use of lands from any presently used or planned park or recreational
area within the Croatan National Forest. The project does not encroach on any special interest areas, preserves,
sanctuaries, reservations or other specialy [sic] designated lands established by Congress." Id.
zss Letter from J. Hefner, USFWS, to D. Robinson, NCDOT (Apr. 20, 1998), DEIS Appendix Al.
Zs6 Memo from R. Lucas, FHWA (July 13, 2010) (Attachment 53).
37

for recovery of the federally endangered RCW, how would this not be a 4f issue?"257 The FEIS,
however, without explanation maintains that Section 4(� is not implicated by the projecf.258
The proposed bypass would detriinentally impact public lands that function for and are
designated for the purposes of recreation and wildlife, and that are designated as state and
regionally significant natural areas. These are precisely the types of public lands that Congress
intended to protect when it adopted Section 4( fl of the Department of Transportation Act, and
DOT must fully evaluate the proposed project as required under Section 4(��.
VII. THE TRANSPORTATION AGENCIES MUST PREPARE A
SUPPLEMENTA� EIS.
The 2011 DEIS contained a range of substantive flaws in its analysis of impacts and
alternatives and failed to contain significant information key to environmental concerns. SELC
submitted comments on the DEIS on November 21, 2011, requesting publication of an SEIS to
remedy these issues and provide the public and decisionmakers with the full array of information
that NEPA guarantees. As pertinent information key to an environmental review of the proposed
bypass continued to emerge, SELC submitted additional comments requesting the preparation of
a SEIS on March 30, 2012 and October 30, 2012. �
In June 2015, because more than three years had passed since the DEIS for the Havelock
Bypass was published, the Agencies completed a reevaluation of the document as required under
23 C.F.R. § 771.129. 259 The purpose of such a reevaluation "is to determine whether or not a
supplement to the draft.EIS or a new draft EIS is required. A Supplemental DEIS is required
when either: "(1) Changes to the proposed action would result in significant environmental
impacts that were not evaluated in the EIS; or (2) New information or circumstances relevant to
environmental concerns and bearing on the proposed action or its impacts would result in
significant environmental impacts not evaluated in the EIS."z6o
.A reevaluation then, should look into whether there have been "changes to the proposed
action" and whether there is "new information or circumstance" that require the publication of a
SEIS. FHWA guidance notes that during a reevaluation "FHWA must assure that the
environmental documentation for the proposed action" (in this case the DEIS) "is still valid,
prior to proceeding with major project approvals or authorizations." 261 The guidance goes on to
note that this task is accomplished by " an assessment of any changes which may have occurred
in either the project's concept or the affected environment, and a determination of what effects
these changes might have on the validity of the environmental documentation.i26Z The guidance
25' za.
25$ In a March 2015 memorandum, communications concerning Section 4( fl are summarized from May 1, 1998
through March 6, 2015. NCDOT, Summary of 4( fl Coordination with USFS (Mar. 3, 2015) (Attachment 54). The
memorandum, however, clearly chronicles a lack of analysis on the applicability of Section 4( fl to the proposed
bypass, simply referencing the May 1, 1998 letter and taking great care to list the dates on which discussions
regarding the applicability of Section 4( fl did not take place.
z59 FHWA and NCDOT, Reevaluation of Draft Environmental Impact Statement (June 25, 2015) (Attachment 55).
zeo 23 C.F.R. § 771.130(a).
Z6� FHWA Guidance, NEPA and Transportation Decisionmaking (Attachment 56).
262 ra.
38

further stresses that the written reevaluation "must demonstrate that the information presented in
the Draft EIS is an accurate analysis.of the anticipated project impacts."263
In its review of the Havelock Bypass FHWA disregarded both its own guidance and the
law. In its reevaluation FHWA concluded that "[a] supplemental EIS is not required because
there are no ... significant new circumstances or information relevant to environmental
concerns."z64 This conclusion was entirely without basis. First, with regard to fundamental
issues such as traffic data, the Agencies simply failed to look and see if there was any new
information and thus failed to confirm if the data in the DEIS was still valid. There was
therefore no possibility that the Agencies could have demonstrated that the information presented
in the DEIS continued to constitute an "accurate analysis." Similarly, with regard to other key
issues such as endangered species and wildlife habitat the reevaluation demonstrates that,
contrary to FHWA's assertions, a great deal of significant new information has come to light
since publication of the DEIS, again, making clear that the DEIS was not an "accurate analysis."
The Agencies' reevaluation and failure to prepare a Supplemental EIS was therefore arbitrary
and capricious.
A. The A�encies Failed to Consider New Information.
The Havelock Bypass is a transportation project. Key to any assessment of impacts and
alternatives therefore is an assessment of traffic conditions in the corridor. NCDOT looked at
current and future traffic patterns in 2008 and included their assessment in the 2011 EIS. As
noted above, these traffic forecasts were used to eliminate a number of alternatives that would
have had significantly less impact on the natural environment. Once the EIS became stale and
the Agencies began their evaluation it was imperative for them to evaluate how traff'ic conditions
may have changed and whether trends were consistent with the prev'iously published
expectations. In their 2014 "updated traffic analysis,"z65 however, the Agencies failed even to
look at traffic counts between 2008-2014.266 Instead, the report just meaninglessly reran the
same 2008 data that had been included in the original, now outdated EIS.
In the written reevaluation, rather than consider or include new information, the agericies
simply noted that the "only notable change in project setting is the recently-completed median
improvements on existing U.S. 70 through Havelock."267 No evaluation as to how this
improvement might have improved traffic conditions was made. No data to confirm that traffic
volumes were growing as expected at 2% per year was included. As such, neither the
Reevaluation nor the FEIS acknowledge the straight-forward reality, demonstrated above, that
traffic volumes have not grown as expected, but have remained flat. Because they failed to even
acknowledge it, "the agencies do not discuss [this] updated data in the context of the traffic
projections and the consideration of reasonable alternatives."268 There is, in sum, no evidence
that the Transportation Agencies "made a reasoned decision" on whether to supplement the
z63 Id
z64 Reevaluation, supra note 259 at 25.
z6s FEIS Appendix D, Response to SELC comments.
z66 See Traffic Analysis Report, supra note 51.
z6� Reevaluation, supra note 259 at 7.
2681000 Friends of Wisconsin, 2015 WL 2454271, at *9 (finding that agencies violated NEPA by failing to explain
the impact of updated demographic data where such new data could make a discarded alternative viable).
39

DEIS "based on [their] evaluation of the significance--or lack of significance—of the new
information."269 The Agencies simply failed to collect the data and perform the required
analysis.
B. The A�encies Failed to Acknowled�e that New Information was
Si�nificant.
The purpose of producing a supplemental EIS when there is significant new information
is to insure that "the public and other government agencies [can] react to the effects of a
proposed action at a meaningful time," and play their role in the NEPA process.270 "When
relevant information `is not available during the impact statement process and is not available to
the public for comment, ... the impact statement process cannot serve its larger informational
role, and the public is deprived of its opportunity to play a role in the decision-making
process."271
The reevaluation included a vast amount of significant new information relevant to
environmental concerns. Most striking is the list of studies conducted in the intervening years
since the publication of the DEIS.272 For example, the RCW Biological Assessment, CNF RCW
Territory Analysis and RCW Management Plan all contain new information that is essential to
any assessment of the impact of the proposed Bypass on RCW habitat - a key consideration in
planning where this road will be located. This information was absent from the DEIS, and is
presented now only when the agencies have already determined that Alternative 3 is the
Preferred Alternative. Because the Agencies_ determined not to present this information in a
SEIS the public were deprived of their legal right to react to the information "at a meaningful
time."273 Similarly, NCDOT's "Biological Evaluation", "Rare Plant Mitigation analysis" and
"Updated rare species/ PETS report" all contained "significant new information" "relevant to
environmental concerns" and should have been presented in a Supplemental DEIS in order to
provide the public the opportunity to react to them at a meaningful time.
Similarly, the Reevaluation noted substantial errors in the DEIS that resulted in a
dramatic underestimation of aquatic impacts. For example, a new analysis now shows that
impacts to wetlands were underestimated by 25-31 acres.274 As a result, the estimated wetland
impacts for Alternative 3, the Preferred Alternative, increased by 25 acres, or 22% of the original
estimate.275 Likewise, total stream impacts for the Preferred Alternative have "increased by 433
feet as a result of stream and wetland delineations conducted in 2013.i276 This information has
significant implications for the selection of a"LEDPA" and should have been identified to the
public in a Supplemental DEIS. Moreover, the information makes clear that "the information
presented in the Draft EIS [was not] an accurate analysis of the anticipated project impacts."
z69Id. (quoting Marsh, 490 U.S. at 378).
270 N.C. Wildlife Fed'n, 677 F.3d at 601 (quoting Marsh, 490 U.S. at 371).
27 Id. at 604-OS (quo,ting N. Plains Res. Council, 668 F.3d at 1085).
Z'2 Reevaluation, supra note 259 at 9.
Z�3 See N.C. Wildlife Fed'n, 677 F.3d at 601 (quoting Marsh, 490 U.S. at 371).
Z�4 Reevaluation, supra note 259 at 14.
z�s Id.
Z'6Id. at 14-15.
►�

Pursuant to FHWA guidance therefore, this major error alone demanded that a SEIS be
prepared.277
On September 1, 2015, following the release of the reevaluation, we submitted a letter to
the Transportation Agencies again urging the issuance of an SEIS.278 FHWA responded that the
"[a]dditional studies, updates, and changes revealed no new issues of significance associated
with this project."279 Shortly thereafter, the Transportation Agencies proceeded with the release
of the FEIS. Disturbingly, documents obtained through the North Carolina Public Records Act
and the Freedom of Information Act suggest that the transportation agencies predetermined from
the outset that the reevaluation would conclude that there was no need for a Supplemental EIS,
regardless of what the data showed. For example, a February 2015 email from FHWA to
NCDOT instructed the agency to keep the section on additional studies since the DEIS "very
brief," as "conclusions should indicate no new issues of significance."280 Likewise, a May 2015
email from NCDOT to FHWA referred to the approval of the reevaluation as a"done deal."281
These communications illustrate a conscious predetermination on the part of both Transportation
Agencies to disregard NEPA's statutory scheme.282
By issuing an incomplete and inadequate DEIS and then issuing, four years later, such a
large amount of significant new information in the FEIS with a preferred alternative already
firmly in place, the Transportation Agencies have severely impeded the ability of agencies and
the public to understand the potential impacts of proposed project alternatives and to comment in
a meaningful and thorough fashion. A primary function of an FEIS is to provide a forum in
which the lead agency responds to comments submitted by other agencies and the public on the
DEIS283—a task that the FEIS is unable to perform because agencies and the public were not
given the opportunity to comment on the significant information that appeared for the first time
in the FEIS itself. A DEIS is the best opportunity "to react to the effects of a proposed action at a
meaningful time,"284 and the Transportation Agencies here have stripped the public of that
opportunity, granted by NEPA, to do so. ,
The range of new information that has arisen since the publication of the DEIS is without
doubt "significant new ... information relevant to environmental concerns and bearing on the
proposed action or its impacts,"285 and its inclusion in the FEIS alone bypasses the NEPA-
mandated opportunity for full and meaningful public review. As such, it is imperative that the
Transportation Agencies comply with NEPA and prepare a SEIS that makes all significant new
277 FHWA Guidance, supra note.260.
278 Letter from G. Gisler, SELC, to J. Sullivan, FHWA, and R. Hancock, NCDOT (Sept. 1, 2015) (Attachment 57).
2'9 Letter from J. Sullivan, FHWA, to G. Gisler, SELC (Oct. 15, 2015) (Attachment 58).
280 Email from R. Lucas, FHWA, to B. Yamamoto and T. Devens, NCDOT (Feb. 5, 2015) (Attachment 59).
281 Email from T. Devens, NCDOT, to R. Lucas, FHWA (May 19, 2015) (Attachment 60) ("Any word on
Reevaluation approval? I ihought that was a`done deal' ...... With your minutes on the FEIS, anything stopping us
now?").
z82 See also Email from T. Devens, NCDOT, to Stantec (Feb. 5, 2015) ("Alas ..: the bureaucratic wheels never stop
turning: John Sullivan at FHWA is asking for a reevaluation PRIOR to FHWA being able to sign the FEIS. At
present I'm not sure whether this is holding up attorney review, but I suspect not. ... This does tie in with one of the
commenter's suggestions that a DEIS supplement is needed (to which we say .... NOT).") (Attachment 61).
z83 See 40 C.F.R. § 1502.9. '
Z84 N.C. Wildlife Fed'n, 677 F.3d at 601 (quoting Marsh, 490 U.S. at 371).
z85 40 C.F.R. § 1502.9(c)(1).
41

information available for a thorough review. Until this step is taken, the Transportation Agencies
should refrain from any further action to move forward with the proposed bypass.
We appreciate the opportunity to submit these comments at this time. If it would be
helpful to discuss any of our concerns we are happy to meet with you at your convenience.
Sincerely,
� � �•.��.---
��
Geoff Gisler
Senior Attorney
r
�'� � �� '`-:. �� � '.
Kym Hunter
Staff Attorney ..
Nadia Luhr
Associate Attorney
CC (via e-mail and US mail):
Travis Graves, Lower Neuse Riverkeeper .
John Fussell, Sierra Club
Michael Murdoch, Sierra Club .
Secretary Nick Tennyson, N.C. Department of Transportation
Edward Curran, N:C. Board of Transportation
Thomas D. Henry, N.C. Department of Justice, Transportation Section
William Lewis, Mayor of Havelock
Shelley Blake, N.C. Department of Transportation, General Counsel
Brian Yamamoto, N.C. Department of Transportation, Project Development Group Supervisor
Hugh Overholt, N.C. Board of Transportation
Gary Jordan, U.S. Fish and Wildlife Service
John Hammond, U.S. Fish and Wildlife Service
Jim Gumm, U.S. Forest Service
42

James Melanos, U.S. Forest Service �
Allen Nicholas, U.S. Forest Service, Forest Supervisor
Chris Militscher, U.S. Environmental Protection Agency, Region 4
Thomas Steffens, U.S. Army Corps of Engineers
Michael Schafale, N.C. Department of Environmental Quality, Natural Heritage Program
David Wainwright, N.C. Department of Water Quality, Environmental Program Consultant
Travis Wilson, N.C. Division of Wildlife Resources - �
43