20181598_Att. 38 - SELC Comments to NCDOT re Have_20160222

S OUTHERN ENVIRONMENTAL
Telephone [phone] .
601 WEST ROSEMARY STREET, SUITE 22D
CHAPEL HILL, NC 27516�2356
Ociober 30, 2012
Via U.S. and Electronic Mail
Mr. Ma,r�C Pierce
Project Planning Engineer
NCDOT - Eastern Project Development Unit
1548 Mail Service Center
Raleigh, NC 27699-1548
mspierce@ncdot. gov
Attachment 3 8
LAW CENTER
Re: Su�plemental Comme�ts on Draft EIS �or the Havelock Bvnass
Dear Mr. Pierce:
Facsimife 919-929-9421
In September 2011, the North Carolina Department of Transportation ("NCD�T")
�ublished a Draft Environmental Impact �tatement ("DEIS") for the Ha�elock Bypass pursuant
to the National Environmental Policy Act {"NEPA"}. 4n behalf of the North Carolina Wildlife
Federation, the Cypress Group of the North Carolina Chapter of the Sierra Club, and North
Carolina Coastal Federation, the Southern Environmental Law Center submitted comments on
that document on November 21, 2011. Since that time additional concerns have come to light
about the project. Accordingly, we offer �hese fiu-�her cornments for yaur consideration. We
urge NCDOT ta consider these important issues prior to proceeding further with this project.
CumuCative Impacts of the New Bern Bypass
In our previous comments, we raised the concern that the DEIS fails to consider the
cumulative impacts of the Havelock Bypass and other closely related NCDOT projects including
the Northern Carteret Bypass and tk�e Gallants Channel Bridge. In addxtion to these projects,
NCDOT has �recently begun to mo�e forward with another proposed highway that is closely
connected to tk�e Havelock Bypass and would aiso affect the Croatan National Forest, the New
Bern Bypass, which forms part of the "Super 70" initiative ta improve US-70 from Ra�eigh to
Morehead City. This project, TTP # FS 1202B, wou�d stretch from the existing US 17 Bypass of
New Bern, across Craven County, to connect with the Havelock Bypass. NCDOT conducted a
community meeting about the project in September 2012, and has stated that it intends to
complete a feaszbi�ity study by Spring 2014.
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As we explained previously, when preparing an EIS, an agency� must consider the
cumulatxve impacts of its proposed praject. 40 C.F.R. § 1508.25(c){3). The analysis af those
cumulative iznpacts is necessary for "a camplete understanding of the environmental effects a
proposed actioz� will cause." N. C. Alliance for Transp, Reform, Inc. v. U.S. DOT, 151 F. Supp. 2d
661, b98 {M:D.N.C. 2001). All reasonably foreseeable future actio�s must be considered in �he
NEPA document, including projects that are not yet fully finalized, and for which no �'unding has
yet been allocated. Western N.C. Alliance v. N. C. DOT, 312 �'.Supp.2d 765, 771 (E.D.N.C. 2003)
(quoting Sier�ra Club v. Marsh, 976 F.2d 763, 767 {lst Cir. 1992}). The New Bern Bypa�s, while
not yet funded or finalized, is suf��iciently fareseeable such that a consideration of its impacts
combined with those of the Havelock B�pass, the Northern Carterat Bypass and the Gallants
Chanr�e� Bridge must be included in tiie DEIS. Fai�ure to do so violates NEPA.
Reasonable Assumptivns
In ouz eaxlier comments, we raised concerns about the assu�nnptior�s in the DEIS regarding
the US Forest Service's abiliiy to manage the Czoatan Forest and the many threatened and
endangered species that inhabit it. As we detailed e�te�sively, the importance of fire to red-
cockaded woodpecker ("RCW") habitat cannot be overstated. Indeed, fire suppression has
played a major role in the degradation of habitat and the resulting decline in populations in the
Croatan. Fire is critical to each aspect of RCW habitat and resulting individual fitness. DOT has
recogniz�d that "no other methods of habitat maintenance achieve the same level of effectiveness
as burning."1 If the Bypass is constructed, prescribed burning will not be able to occur at a
sufficient level to maintain existing habitat and the long term existence of the RCW will be
threatened. Despite the importance of burning, NCDOT failed en.tixe�y to demonstrate that
sufficient burning wi�l occur if the Havelock Bypass is constructed, and instead, relied on vague
promises and assumptions. Since publication of the EIS, NCDOT has siated its intent to allow
burning, but again has failed to provide the detail required to satisfy NEPA under recent Fourth
Circuit Court of Appeal rulings.
Those two recenf rulings underscore the fact that blanket reliance on unsubstantiated
material assum�ptions violates NEPA. See Friends of Back Bay v. Unrted Stcrtes Army Corps of
Eng'rs, 681 F.3d 581 (4th Cir. 2012); N.C. Wildlife Fed'n v. N.C. DOT, 677 F.3d 596 (4th Cir.
2012). In Friends of Back Bay, the Fourth Circuit hald that the US Azx�y Corps o� Engxneexs'
assumption rega�c�di�g the effectiveness of a rnirtigation measure, absent any evidence that it
would be adequately enforced, was arbitrary and capricious. Id at 588-89. 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 vvould 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
zx�xtigation taol.
Just like the environmental documentation in Back Iiay, the DEIS prepared for the
Havelock Bypass operates under an unsubstantiated material assumption ---- speciiically ihat
NCDOT will close the Bypass as needed to allow prescribed burning to take place in the
appropriate season a�d at a sufficient level to sustain tk�e habitat needed for the RCW population.
E Letter from Terry Gibson, NCDOT, to Marisue Hilliard, USFS, at 1(Jan. 9, 2012). See Attachment �I.
2

The EIS oi%rs no detail about how and when future burning will occur and no comrnitment from
NCDOT that the road will be closed to allow for prescribed burning in the future. Moreo�ar,
even if ihe NCDOT does close �he highway, the DEIS lacks any analysis e�plaining how the
USFS will overcome historical difficulties that the agency has had burning near populated areas
with the added impediment offhe Bypass. See SELC Comments at 10-11 {Nov. 21, 2011).
Terry Gibson's January 9, 20121etter to Maxisue Hilliard ("Gibson Letter") does not
ameliorate this fundamental flaw. The letter restates ihe assumptions included in the DEIS and
stafes that "[u�nder these general conditions" and the meeting minutes describing them,Z NCDOT
agrees to close the Havelock Bypass "when necessary." The Ietter faiis to provide any additional
details about the scheduling of prescribed burns, avoids discussion of any of the practical issues
involved wit� conducting prescribed burns, and omits criteria and procedures that would be used
to determine whether and how to close the road. Mareover, complete discretion �hether closing
the road is "necessazy" lies with NCDOT.
The asswnnptian in the Havelock DEIS and tha Gibson Letter fhat a sufficient level of
burning will occur is no di�ferent than the assuzription made by the Corps in the Back Bay case
regarding the No Wake Zone." There, the Corps assunned that a No Wake Zone would protect
habitat and relied on that assumed protection as the basis for its evaluation of environmentai
zmpacts. Here, NCDOT and USFS have assumed that the NCDOT wi11 close the Bypass and the
USFS will cairy out prescribed burning and relied on that assumption when evaluating
environmental impacts. Just as the No Wake Zone was a"foundational pro�osition" upon which
the NEPA document was based, so zs the assertion that NCDOT will close the Bypass to allow,
and USFS will conduct, a sufficient level of prescribed burning to sustain essential ha�itat. As
with enforcement af the No Wake Zone, comnnitments and details about the closure o�the
Sypass and the proposed burning are entirely absent from the DETS.
Without specific, enfarceable commitments and further details abo�t the plazl for
prescribed burning, the public and resource agencies are �elpless to comment on the impact and
efficacy of proposed options, and the alternatives provided in the EIS, and thus the purpose of
NEPA is eviscerated. See N.C. Wildlife Fed'n, 677 F3d 596, 603 n.2. 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 — tk�e agencies must develop a specific, enfarceable plan that both
confronts the complexities of prescribed burning and transfers discretion to close the proposed
bypass io USFS. The mandatory nature of those requirements is at the heart of the k'ourth
Circuit's Back Bay decision, which rejected the Corps and FWS's plan because it "neither
mandate[d] en�arcement of the NWZ nor guarantee[d] funding therefare," but instead relied on
the hape of compliance. 681 F.3d at 587. 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 Back Bay defendants in violating NEPA. Here, that
error is compounded by the effect of relying on those vague assumptions on an endangered
species.
In light of these func�amental flaws in the DEIS and those detailed in our earlier
comments, we urge the Transportation Agencies to revise their analysis o� alternatives and
2 N.C. DOT, Minutes from March 17, 2011 Prescribed Burning Meeting. See .4ttachment B.

impacts according to the recornrnendations set forth herein and to issue a supplemental Draft
Environrnental Impact Statement for public review and comment.
�incerely,
Geoff Gisler, Staff Attorney
Kym Hunter, Staff Attorney
cc: Ga�ry Jordan, U�FWS
3ohn Hammond, USFWS
Michael Schafale, NHP, NCDENR
Karen Compton, USFS .
Gary Kauffinan, USFS
Administratar John F. Sullivan, FHWA
Secretary Gene Conti, NCDOT
Chris Militscher, USEPA
Tom Steffens, USACE
Encls.
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