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Home My WebLink About20181598_Att. 57 - Letter from G. Gisler, SELC, t_20160222Attachment 5 7 SaUTI�ERN EN��IR�NMENTAL LA�1 �ENTER Telephnne 919-9Fi7-9�5❑ Fi09 WFST ROSFh9ARY STRFFT. SIJITF 7�0 Far.�imile 919-9�9-9A�7 GHAPEL HILL. MC 2i516-2356 SepteinUer 1, 2�15 Via E-mail and U.S. Mail Jahn F. Sullivan. III Division Adininistrator Feder�l Hi�liway Adnunistration 310 New Bern Avenue, Suite 410 Aaleigh, NC 27601 jolrfr.s�rllrvafr�fhwa. dof.gov Aichard Han�ock Mauager NCD�T - Prajeet Development and Envi�•ontuental Analysis LTnit 1548 Mail Seivi�e Center Raleigh, NC 27699 nvl�ancock�r7c .�cr�ot.gov Re: Reevaluatian of Draft EIS far the Ha�relo�k Bmass Dear Mr. Sullivan and Mr. Han�ock: Iv 5eptetnber 2�11, the Federal Hi�liway AdYninistratian ("FHWA"} and the Nort}� Caroliva Dep�rhnent of Transgortation ("NCDaT"} publislted a Draft Envu�arunental Ii�pact Stateinent ("DEIS"} far the Ha�elack Bypass. �n Uehalf af the Nort�i Caroliva Wildlife Federation, the Cypress Cnoup of the Nart}� Caraliva Chapter of the Sieira Chib, and North Caroliva Coastal Federation, t�ie Southern En�ironuiental Law Center ("SELC"} sub�nitted couuvents on that doctuitent an Noverr�Uer 21, 2fl11. Secause the DEIS failed to cantain a range ❑f significant ivformation key t❑ environuiental concerns, SELC requested guUlication of an Supglemental EIS ("SEIS"}. As gertinent infain�ation key to any enviroiunental review of the prapased Bypass cantinued to emerge SELC submitted additianal caiiunents requestin� t}�e preparatian of a SEIS iv Mar�h 2fl 12 and �ctaber 2012. Iv June 2015, NCD�T eotnpleted a reevahiation of the DEIS for the Havelock Bypass to deterinine whether a SEIS was needed. In the reevaluation, FHWA �oncluded that "[a] supplemental EIS is not required because there are no ... significant new circurnstances or infai�iatian relevant ta environuiental cancerns." Reevahraiion af Draff Etrviran��re.nfal Is�a��rct State�ner�t, p.25. We disagree. The reevahiation itself inakes �lear that a great deal of si�ni�caut Chsrlottesville • Chapel Hill • Atlanta • Ashe�ille • 6irmingham • Charleston • Nashville • Richmond • Washington. �C I40� recycled paper John F. Sullivan Richard Hancock September 1, 2015 Page 2 new information has come to light since publication of the DEIS, making a SEIS a legal necessity. We therefore urge the transportation agencies to comply with federal law and complete a SEIS and make it available for public review before moving forward with the project. Supplemental Environmental Impact Statement Federal regulations require that an agency "shall" prepare a SEIS where "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts" arise. 40 C.F.R. § 1502.9(c)(1). Likewise, FHWA regulations provide that an agency "shall" prepare a SEIS where "[n]ew 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." 23 C.F.R. § 771.130(a)(2); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989) ("[I]f the new information is sufficient to show that the remaining action will `affec[t] the quality of the human environment' in a significant manner or to a significant eXtent not already considered, a supplemental EIS must be prepared."). The new information noted in the reevaluation, in addition to the concerns raised in our March 2012 and October 2012 comments, must be addressed in a SEIS in order to "permit[] the public and other government agencies to react to the effects of a proposed action at a meaningful time," as intended under NEPA. NC Wildlife Fed'n v. NC Dept. of Transp., 677 F.3d 596, 601 (4th Cir. 2012) (quoting Marsh, 490 U.S. at 371). "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." Id. at 604-OS (quoting N. Plains Res. Council v. Surface T�ansp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011). Significant new information relevant to environmental concerns The reevaluation discusses a significant amount of new information that has arisen since the publication of the DEIS. Most striking is the list of studies conducted in the intervening years since the publication of the DEIS. Many of these studies and reports should have been included in the DEIS but were not: • Prescribed Burn Plan Agreement • Spring species (Solidago ve�na) report • RCW Management Plan for CWMB • Geoenvironmental Assessment for Waste Transfer Facility • Updated rare species/PETS report • Stream and Wetland delineation update John F. Sullivan Richard Hancock September 1, 2015 Page 3 • Summer species report • Fall species (Paspalum) report • Indirect and Cumulative Impacts Assessment • Rare Plant Mitigation/Non-native Invasive Analysis • Bryophyte report • RCW Biological Assessment • US 70 Havelock Bypass Biological Evaluation • Biological Evaluation Report • Migratory Bird Evaluation • CNF Management Indicators Species Report • CNF RCW Territory Analysis Reevaluation, p.9. Moreover, the reevaluation also 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." Reevaluation, p.14. In a new analysis, the estimated wetland impacts for Alternative 3, the Preferred Alternative, increased by 25 acres, or 22 percent of the original estimate. Id. Likewise, total stream impacts for the Preferred Alternative have "increased by 433 feet as a result of stream and wetland delineations conducted in 2013." Id. at 14-15. These are significant increases in devastating environmental impacts that deserve full public scrutiny. 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." 40 C.F.R. § 15029(c)(1). As such, it is imperative that the transportation agencies prepare a SEIS that makes all the significant new information available for the public review. Until this important legal step has been taken the transportation agencies should refrain from any further action to move forward with the Preferred Alternative in place of other less damaging solutions, such as improvements to existing U.S. 70. We would be happy to meet with you to discuss these concerns at your convenience. Sincerely, �� Geoff Gisler Senior Attorney ggisler@selcnc. org John F. Sullivan Richard Hancock September 1, 2015 Page 4 � —� Kym Hunter Staff Attorney khunte�@selcnc. org �� Nadia Luhr Associate Attorney nluhr@selcnc. org cc (via email): Gary Jordan, USFWS John Hammond, USFWS Karen Compton, USFS James Melonas, USFS Chris Militscher, USEPA Tom Steffens, USACE Secretary Nick Tennyson, NCDOT Shelley Blake, NCDOT Ted Devens, NCDOT Michael Schafale, NHP, NCDENR David Wainwright, NCDWQ Travis Wilson, NCWRC