20181249 Ver 1_USACE Comments_20181127

Carpenter,Kristi
From: Chapman, Amy
Sent: Tuesday, November 27, 2018 9:21 AM
To: Carpenter,Kristi
Cc: Ridings, Rob; Karoly, Cyndi
Subject: FW: [External] Complete 540 - Section 404 Permit
Attachments: Comments to Corps- Complete 540.pdf
Follow Up Flag: Follow up
Flag Status: Flagged
KLC,
Please put this in the Complete 540 laserfiche folder. Thanks!
-A
From: Kym Hunter <[e-mail]>
Sent: Thursday, November 22, 2018 11:01 AM
To:'[e-mail]' <[e-mail]>
Cc: Memory, Beau H<[e-mail]>; Chapman, Amy <[e-mail]>; [e-mail];
June Blotnick <[e-mail]>; 'Matthew Starr' <[e-mail]>; ([e-mail])
<[e-mail]>; ([e-mail]) <[e-mail]>;'[e-mail]' <[e-mail]>;
Tarr, Jeremy M<[e-mail]>; Watts, Chuck D<[e-mail]>; Fox, Michael S<[e-mail]>; John
Sullivan <[e-mail]>; '[e-mail]' <[e-mail]>; Trogdon, James H
<[e-mail]>;'[e-mail]' <[e-mail]>
Subject: [External] Complete 540 - Section 404 Permit
i�� � � ��� �� ���� � �� � �
Dear Eric,
Happy Thanksgivingi
On behalf of Sound Rivers, Clean Air Carolina, and the Center for Biological Diversity, the Southern
Environmental Law Center submits the attached comments on the application of the North Carolina Department of
Transportation ("NCDOT") for a section 404 Clean Water Act permit for Complete 540: a$2.2 billion new location
Toll Road, and the what would be the most expensive and destructive highway in North Carolina's history. A hard
copy of these comments will follow via U.S. mail, along with a flash drive containing the associated attachments.
As you know, the Corps can only grant a permit for the "Least Environmentally Damaging Practicable
Alternative," but here NCDOT is asking the Corps to do the reverse. NCDOT has selected the most environmentally
destructive of all alternatives and now asks the Corps to issue an illegal permit. It must not.
Moreover, NCDOT asks the Corps to join its sister federal agencies and violate the Endangered Species Act by
destroying populations and habitat of two species of endangered mussel, as well as other species. The current
Biological Opinion for the project allows for unlimited and unmonitored annihilation of these mussels with no defined
trigger for new consultation, despite a recent ruling by the U.S. Court of Appeals for the Fourth Circuit that such an
approach is illegal. See Sierra Club v. United States Dep't of the Interior, 899 F.3d 260, 270 (4th Cir. 2018).
To grant the permit, the Corps would also have to ignore its responsibilities under the National Environmental
Policy Act ("NEPA"), as well as Executive Order 12898 that requires the agency to consider impacts to low income
and minority communities.
The Conservation Groups have already filed twenty-three legal claims in the United States District Court for the
Eastern District of North Carolina regarding the defective, illegal, predetermined analysis that has been performed for
this road. Sound Rivers v. tISWFS et al, 4:18-CV-97 (E.DN.C. 2018). The Corps should not accept NCDOT's
invitation to add to these legal violations. Instead, the Corps should deny NCDOT's request for a permit, require the
agency to prepare supplemental NEPA documents, select an alternative that is truly the LEDPA, and conduct additional
consultation with the USFWS to ensure that threatened and endangered species are not put in jeopardy.
Thank you for the opportunity to submit these comments. We would appreciate to meet with you and discuss
our concerns further, and we urge you to schedule a public hearing as a reasonable time and place so that the public can
voice their concerns about this highway and its unprecedented cost — both to taxpayers and to the environment.
Kym Hunter
Senior Attorney
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, North Carolina 27516-2356
Phone: [phone]; Fax: [phone]
SouthernEnvironment.org
This email may contain information that is privileged and confidential. Unless you are the addressee (or authorized to receive email for the
addressee), you may not use, copy, or disclose this email or any information therein. If you have received the email in error, please reply to the
above address. Thank you.

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
November 22, 2018
VIA E-MAIL AND U.S. MAIL
Eric Alsmeyer
U.S. Army Corps of Engineers
Raleigh Regulatory Field Office
3331 Heritage Trade Dr., Suite 105
Wake Forest, NC 27587
Eric.C.Alsmeyer(a�usace.army.mil
Re: Complete 540 Toll Road - Section 404 Permit
Dear Mr. Alsmeyer:
On behalf of Sound Rivers, Clean Air Carolina, and the Center for Biological Diversity
(the "Conservation Groups"), the Southern Environmental Law Center ("SELC") offers the
following comments on the application of the North Carolina Department of Transportation
("NCDOT") for a section 404 Clean Water Act ("CWA") permit for Complete 540: a$2.2
billion new location Toll Road, and the what would be the most expensive and destructive
highway in North Carolina's history. i
As outlined in detail below, NCDOT's permit application invites the Corps to commit
myriad legal violations. The Corps can only issue a permit for the Least Environmentally
Damaging Practicable Alternative ("LEDPA"). Here, quite simply, NCDOT asks the Corps to
do the reverse. It has selected the alternative that causes the most environmental damage out of
all alternatives studied, and now asks the Corps to illegally issue a permit for that option.
Moreover, NCDOT asks the Corps to permit a project that would devastate two species
of endangered mussels in violation of the agency's responsibilities under the Endangered Species
� These comments supplement our earlier letter concerning the Draft Environmental Impact Statement ("DEIS") for
this project that was submitted to the U.S. Army Corps of Engineers ("Corps") on January 8, 2016. A copy of our
January 8, 2016 comments to Eric Alsmeyer, USACE are attached for your reference as Attachment 1. The
Conservation Groups also submitted comments on the Final Environmental Impact Statement ("FEIS") to the
Federal Highway Administration ("FHWA") and NCDOT. A copy of our February 22, 2018 comments to Rodger
Rochelle, NCDOT are attached for your reference as Attachment 2. Both of these sets of comments are
incorporated by reference into these comments.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC

November 22, 2018
Page 2
Act ("ESA"). The current Biological Opinion allows for unlimited and unmonitored annihilation
of these mussels with no defined trigger for new consultation, despite a recent ruling by the U.S.
Court of Appeals for the Fourth Circuit that such an approach is illegal. See Sierra Club v.
United States De�'t of the Interior, 899 F.3d 260, 270 (4th Cir. 2018).
At the same time, NCDOT has not provided information for almost two thirds of the
proposed highway, leaving the Corps, and the public, without any way to determine if the project
complies with a slew of legal requirements. And, despite being one of the most destructive
projects ever proposed for the Piedmont area, NCDOT has provided no details about how it will
mitigate impacts to the 65.63 acres of permanent wetland, 57,344 linear feet of stream, 29.53
acres of surface water, and 6,774,753 square feet of Neuse riparian buffer that it will destroy.
NCDOT would have the Corps disregard its responsibilities under the National
Environmental Policy Act ("NEPA"), as key information about the need for the road, the
viability of alternatives, the direct, indirect, and cumulative impacts has been obscured from
public view through an incomplete, inaccurate, predetermined analysis. The shoddy NEPA
documents also infect review of impacts to Environmental Justice communities, which NCDOT
has shrugged off, stating (despite evidence to the contrary) that low income and minority
communities will benefit from decreased congestion, even while they cannot afford to use the
pricey road (the cost of which has not yet been disclosed) and even while they pay for that same
road in tax dollars, decreased air and water quality and associated health impacts. But the Corps
has an independent legal responsibility to examine such impacts pursuant to Executive Order
12898 and cannot accept NCDOT's defective review.
The Conservation Groups have already filed twenty-three legal claims in the United
States District Court for the Eastern District of North Carolina regarding the defective, illegal,
predetermined analysis that has been performed for this road. Sound Rivers v. USWFS et al,
4:18-CV-97 (E.D.N.C. 2018). The Corps should not accept NCDOT's invitation to add to these
legal violations. Instead, the Corps should deny NCDOT's request for a permit, require the
agency to prepare supplemental NEPA documents, select an alternative that is truly the LEDPA,
and conduct additional consultation with the USFWS to ensure that threatened and endangered
species are not put in jeopardy.
L The Permit Should be Denied Because the Complete 540 Toll Road is not the
LEDPA
NCDOT's LEDPA analysis is fundamentally flawed under the requirements of both
NEPA and the CWA. "[T]he applicant and the [Corps] are obligated to determine the feasibility
of the least environmentally damaging alternatives that serve the basic project purpose. If such
2

November 22, 2018
Page 3
an alternative eXists ... the CWA compels that the alternative be considered and selected unless
proven impracticable." Utahns for Better Transp. v. U.S. Dept. of Trans�, 305 F.3d 1152, 1188-
89 (lOth Cir. 2002). Where a discharge is proposed for a wetland or other special aquatic site, all
practicable alternatives to the proposed discharge which do not involve a discharge to the
wetland "are presumed to have less adverse impact on the aquatic ecosystem, unless clearly
demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). Thus, "the Corps' burden in finding the
[LEDPA] under the CWA guidelines is heaviest for non-water dependent projects planned for a
`special aquatic site,' such as a wetlands area." Greater Yellowstone Coalition v. Flowers, 359
F.3d 1257, 1269 (l Oth Cir. 2004).
According to the section 404(b)(1) Guidelines, "the analysis of alternatives required for
NEPA environmental documents ... will in most cases provide the information for the
evaluation of alternatives [for section 404 permits]." 40 C.F.R. § 230.10(a)(4). However, the
CWA has a more demanding standard for alternatives analysis than NEPA. While NEPA only
requires an agency to consider a reasonable range of alternatives, the CWA mandates that "[n]o
discharge of dredged or fill material shall be permitted if there is a practicable alternative to the
proposed discharge which would have a less adverse impact on the aquatic ecosystem." 40
C.F.R. § 230.12(a)(3). "The level of documentation should reflect the significance and
complexity of the discharge activity." 40 C.F.R. § 230.6(b).
An alternative "is practicable if it is available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of overall project purpose." 40
C.F.R. § 230.10(a)(2). Thus, in certain cases, the NEPA documents "may not have considered
the alternatives in sufficient detail to respond to the requirements of [the] Guidelines[,]" in which
case "it may be necessary to supplement ... NEPA documents with this additional information."
Id. In light of these requirements, it is not sufficient under the CWA "for the Corps to consider a
range of alternatives to the project: the Corps must rebut the presumption that there are
practicable alternatives with less adverse environmental impact." Id. (emphasis added); see also
Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1262 n.12 (lOth Cir. 2003); Svlvester v.
U.S. Arm.��rps of En_g'rs, 882 F.2d 407, 409 (9th Cir. 1989) ("Obviously, an applicant cannot
define a project in order to preclude the existence of any alternative sites and thus make what is
practicable appear impracticable."); Bersani v. U.S. Envt'1 Prot. A�y, 850 F.2d 36, 44 (2d
Cir. 1988) (upholding EPA interpretation of Guidelines requiring applicant to show that no
alternative sites were practicable at the time it entered the market to search for a site, even if
alternative site later became unavailable).
NCDOT's analysis is inadequate to satisfy both NEPA requirements and those in the
section 404(b)(1) Guidelines. The analysis presented in the NEPA documents and the section

November 22, 2018
Page 4
404 Permit Application fails to successfully rebut, and in fact reinforces, the regulatory
presumption that practicable, less environmentally damaging alternatives eXist.
A. NCDOT's selected alternative is not the least environmentally damaging of
the studied DSAs
The 404(b)(1) Guidelines require NCDOT to take two steps to determine the LEDPA.
First, NCDOT must determine which alternatives are practicable — that is, which alternatives are
"available and capable of being done after taking into consideration cost, existing technology,
and logistics in light of overall project purpose." 40 C.F.R. § 230.10(a)(2). Second, among these
practicable alternatives, NCDOT must determine which one is least environmentally damaging.
The first question calls for some consideration of cost. The second does not. The Corps'
guidance makes clear that the inquiry surrounding its duty to select the LEDPA is "not whether
an alternative `more fully or better address' management plans, goals, desires, political wishes"
or other "non project purpose aspects."� If all are practicable, only the alternative with the least
aquatic resources impacts may be selected.
Ignoring this two-step sequence, NCDOT eliminated the alternatives it considered
impracticable, studied the twelve DSAs it considered practicable, and then illegally took cost
into account again in selecting the preferred alternative from among the studied DSAs. Costs
have no place in this second step of the analysis, yet NCDOT eXpressly and improperly
considered costs in selecting its proposed alternative, violating the CWA. In its Preferred
Alternative Report, NCDOT identified DSA 2, the selected alternative, as the least expensive
option, listing among its "key conclusions" that "[t]he estimated cost of the most expensive
alternative (DSA 8) is about 17.8 percent greater than the least expensive option (DSA 2)."3
NCDOT repeatedly listed cost as one of the "factors that influenced" its selection of the
preferred alternative,4 and stated that DSA 2 being the "least costly alternative" was a"key
consideration in identifying DSA 2 as the Preferred Alternative."5 NCDOT's focus on picking
the least costly alternative rather than the LEDPA clearly violates the CWA.
If, in determining which of the studied DSAs was the LEDPA, NCDOT had properly
restricted its consideration to the alternatives' environmental impacts, DSAs 6 and 7 would be
� Chandler Peter, Alternatives Analysis: Satisfying NEPA, Public Interest Review & 404b1, U.S. ARMY CORPS OF
ENGINEERS at slide ll(July 24, 2014), available at
http://www.sw£usace.army.miUPortals/47/docs/re u,_g latory/Hot%20Topics/2014%20Ju1%20Alternatives.pdf.
3 Preferred Alternative Report at 5.
4Id. at 7-8, tbl. 2.
s Id. at 21-22.

November 22, 2018
Page 5
identified as the LEDPAs. DSAs 6 and 7, while still tremendously destructive, are the only DSAs
that avoid placing endangered and threatened mussels in jeopardy,6 and would impact
significantly fewer acres of wetland and fewer linear feet of streams than other alternatives.
NCDOT's arbitrary rejection of these less environmentally damaging practicable alternatives
means that the selected alternative cannot be the LEDPA. Indeed, if NCDOT is permitted to
move forward with the damaging alternative it has selected, the Clean Water Act's requirement
that only the LEDPA be selected will cease to have any meaning.
1. DSAs 6 and 7 are practicable alternatives
The Red Route DSAs are significantly less environmentally damaging than the selected
DSA, and are comparable in terms of cost, relocations, and other indicators of practicability.
Therefore, DSAs 6 and 7 are likely the LEDPA, and NCDOT's selection of the more
environmentally destructive preferred alternative is arbitrary and capricious and violates the
Corps' section 404 guidelines.
The Red Route DSAs cost only marginally more than the selected alternative, require
fewer acres of land, disturb significantly fewer acres of farmland soil, and result in only slightly
more relocations. � The relocations associated with the Red Route are a commonly cited reason
against choosing a Red Route DSA.B DSAs 6 and 7 would cause 449 and 451 relocations
respectively, while the selected alternative, DSA 2, would cause 281 relocations.9 The Preferred
Alternative Report admits that there is only a"relatively small difference in required relocations"
among DSAs.10 Given this "relatively small difference" and the minimal increase in cost it is
arbitrary and capricious to suggest that the relocations required by the Red Route render the
project "impracticable" while those associated with the preferred alternative preferred
alternative, are practicable.
Moreover, as noted in Overton Park, Inc. v. Volpe, undeveloped land will always be
associated with the least number of relocations, "since people do not live or work" there, but this
does not mean that highways should always be built on undeveloped land, rather than in
developed areas. 401 U.S. 402, 411-412(1971). If Congress intended for factors such as cost,
directness of route, and community disruption to be considered "on equal footing with
6 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E. NCDOT 1, 40-42 (Jan. 8, 2016).
Attachment 3.
� See DEIS at 108: Comparative Evaluation Matrix
8 See Preferred Alternative Report at 5.
9 Id.
10 Preferred Alternatives Report at 5.

November 22, 2018
Page 6
preservation... there would have been no need for the statutes," Id. The CWA's mandate that
discharge to aquatic environments only be permitted for the LEDPA predominates over
differences in relocations associated with various practicable routes, especially when they are so
minimal.
2. DSAs 6 and 7 minimize impacts to water resources
The DSAs that include the Red Route (DSAs 6 and 7) would impact the smallest acreage
of wetlands, with each directly impacting approximately 52 acres of wetlands. i i The DSAs that
include the Purple-Blue Corridor (DSAs 8-12) would impact the next smallest amount of
wetlands - impacting an average of approXimately 59 wetland acres.i� By comparison, the DEIS
projected that the selected alternative would impact approXimately 74 acres of wetlands.13
Similarly, the Red Route DSAs would impact the fewest linear feet of streams, with 53,014 feet
for DSA 6 and 51,582 feet for DSA 7 versus the preferred alternative, which would impact
65,810 feet of streams.14
DSAs 6 and 7 would also have the fewest stream crossings, with 109 and 106 for DSAs 6
and 7 respectively.'s The selected DSA has 139 stream crossings.16 The fewest number of ponds
would also be impacted by the Red Route, with 28 ponds accounting for 20.0 acres
corresponding to DSA 6, and 25 ponds accounting for 17.7 acres corresponding to DSA 7.'� The
selected DSA impacts 38 ponds accounting for 23.2 acres.'g While DSAs 6 and 7 would impact
6.7 acres of the Swift Creek Critical Watershed, the thousands of fewer impacted streams, tens of
acres less of affected wetlands and ponds, and the avoidance of harm to the Dwarf wedgemussel
may outweigh these smaller in size, but nonetheless significant, impacts to the Swift Creek
Critical Watershed.19
" DEIS at 90.
iz Id.
13 DEIS at 108. The selected alternative's impacts have been refined down for the permit application. See Permit
Application at 3. However, because the original figures were used by NCDOT to select the preferred alternative, the
impacts must be compared for the purpose of determining the LEDPA.
14 DEIS at 108,
15 DEIS at 108.
' 6 Id.
" Id.
� � Id.
� 9 Id.
0

November 22, 2018
Page 7
3. DSAs 6 and 7 avoid harm to endangered mussels
The Red Route represents the only alternative to not cross Swift Creek downstream of
Lake Benson, thus likely avoiding all of the most direct impacts to the endangered Dwarf
wedgemussel and threatened Yellow Lance.20 As discussed below, this represents an
independent reason for not issuing a Section 404 permit. See 16 U.S.C. § 1536(a)(2). However,
it also factors into 404's LEDPA requirement, since an alternative that stands to wipe out an
essential population of an endangered species could hardly be considered the least-
environmentally damaging practical alternative —particularly when alternatives exist which
would avoid this impact. The Red Route DSAs, as well as non-toll highway options, would
avoid the most severe and immediate impacts to the Dwarf wedgemussel, Yellow Lance, and
Atlantic Pigtoe, as well as the costs of a mussel propagation facility.
4. DSAs 6 and 7 minimize cumulative impacts
Compared to the selected DSA, the Red Route DSAs would pull development less far
south. In turn, the Red Route DSAs would likely result in less drastic indirect, induced growth
related impacts by going through an area that is already developed, as opposed to the selected
DSA, which would disrupt natural areas and bring new growth to previously undisturbed areas.
Additionally, the selected alternative will impact and possibly eliminate an existing
mitigation site associated with the Northern Wake Expressway. The Natural Resources
Technical Report, while noting the fact, does not provide any details on this mitigation site's
location, its size, or any plans to offset the potential impacts to the site. According to the North
Carolina Division of Mitigation Services' ("NCDMS") the Underhill mitigation site is located
near Swift Creek, within the triangular area created by the intersections of I-40 with NC-42, I-40
with 70, and NC-42 with 70.�i The Natural Resources Technical Report misleadingly states that
all the considered alternatives would impact this mitigation site. But the selected alternative
passes far closer to the Underhill mitigation site than the Red Route DSAs. This significant
difference in proximity means the selected alternative is more likely to impact the mitigation site
and any impacts would be of grater magnitude.
The location of the Underhill mitigation site provides a further demonstration of the
selected DSA cannot be environmentally-preferred. Moreover, the fact that a site used to
�� See NCDEQ, DIV. oF MITIGATION SERVICEs, EEP Interactive Map, http://portal.ncdenr.org/web/eep/interactive-
mapping (last visited Jan. 7, 2016) (search far "underhilP'), Attachment 4.
�� See NCDEQ, D�V. OF M11'IGA1'�01v SExvICES, EEP Interactive Map, http://portal.ncdenr.org/web/eep/interacrive-
mapping (last visited Jan. 7, 2016) (search for "underhill"), Attachment 4.
7

November 22, 2018
Page 8
mitigate impacts from a highway project is already being disturbed only a few years after that
highway project was constructed serves to illustrate why mitigation measures should only be
used as a last resort, and avoidance of impacts must instead be prioritized.
B. NCDOT employed flawed methodologies and analyses to arbitrarily reject
practicable alternatives that would avoid or result in less adverse impact to
surface waters and wetlands
As discussed above, NCDOT's NEPA documents demonstrate that the selected
alternative is among the most environmentally destructive options considered. NCDOT's biased
alternatives analysis nevertheless selected this option over a myriad of other less environmentally
damaging, more cost-effective, and equally or more practicable options that were not even
studied.
Misleading metrics arbitrarily removed reasonable alternatives
The FEIS relies on a 2014 Alternatives Development and Analysis Report ("Alternatives
Analysis") to eliminate all non-toll highway alternatives prior to detailed environmental review.
The preliminary review of alternatives involved three tiers of screening, with 8 out of 10
potential alternative types eliminated at the first tier of screening.22 This first tier of screening
was designed with a heavy bias toward construction of a new-location toll highway.23
The first-tier screening process relied heavily on misleading, numeric "Measures of
Effectiveness," or "MOEs" to review the potential for each alternative concept to achieve travel
time savings and congestion relief.24 For each of these MOEs, the change from the No-Build
scenario was eXpressed as a percentage. 25 Then, the different concepts were ranked for each
MOE from greatest to least percentage change.26 As noted by EPA, "[a]ll of these measures and
the undefined Triangle Regional Model ("TRM") are biased towards eliminating [Transportation
�� Alternarives Development and Analysis Report (May 2014), at Table 2-9: Alternative Concepts to be Carried
Forward to Second Screening [hereinafter "Alternatives Analysis ReporY'].
23 Stakeholder Report at 178 (2012 EPA Technical Assistance Comments on Draft Alternatives Development And
Analysis Report) ("The purposes of the project were narrowly defined in the previous section of the report. The
highway `threshold criteria' as further defined and as alluded to in the report to meet purpose and need were `pre-
disposed' to eliminate all but new location, multi-lane toll road alternatives.")
24 Alternatives Analysis Report at 2-6.
25 Id. at 2-9.
z� Id.
:

November 22, 2018
Page 9
Demand Management], [Transportation System Management], and Mass Transit/Multi-modal
Alternative Concepts."��
The different MOEs purported to help distinguish the alternatives according to the results
of the MOEs. In reality, the MOEs illustrate how indistinguishable the considered alternatives
were in terms of their ability to relieve congestion or enhance mobility. For example, the 2035
projected average daily travel speeds during the evening rush hour for the different alternatives
ranged from 43.7 MPH to 47.3 MPH—a range of less than a 4 MPH difference from the "worst"
performing alternative to the "best" performing alternative.28
Similarly, the best performing alternative under the travel time MOE was only marginally
better than the worst performing alternative. When reviewing travel times, the Alternatives
Analysis focused on a"subset of the origin and destination points ... for closer evaluation of the
MOE for project purpose."29 The origin points chosen were Brier Creek and Research Triangle
Park ("RTP").30 As to the projected travel times for an RTP origin during peak PM travel times,
the smallest average change over the No-Build alternative was 3.5% and the greatest change was
13.7%,31 or stated in minutes saved, an average of 2.25 minutes saved and 5.75 minutes saved,
respectively. A difference of an average of 3.5 minutes saved between the worst and best
alternatives is hardly a significant difference,32 and demonstrates that the toll road highway
option did not significantly outperform the other reviewed alternatives. Advancing the toll
highway alternatives over other alternatives, based on such slight differences is arbitrary and
capricious, and fails to rebut the presumption that a less damaging alternative exists.
2. The ranking system arbitrarily distinguished between successful and
unsuccessful alternatives
Next, the first-tier screening process used the misleading MOEs to arbitrarily divide the
alternatives into two groups: alternatives that purportedly met the purpose and need, and
�' Stakeholder Report at 179 (2012 EPA Technical Assistance Comments on Draft Alternatives Development and
Analysis Rcport).
�� Alternarives Analysis Report at Table 2-1: Average Daily Travel Speeds in Traffic Study Area (2035)—PM Peak
Period.
29 Id. at 2-11.
3o Id. at 2-12.
31 Id. at Table 2-2: Average Travel Times from RTP to Listed Destinations (2035) – PM Peak Period.
32 The range of difference in travel times with a Brier Creek origin are similar, with the lowest average percentage
change being 3.4% and the highest being 12.1%, or a difference of 2 minutes saved and up to 7.5 minutes saved.
With this example, unlike the RTP example, the "best" performing alternative was Hybrid 1 and not the New
Locarion Highway.
0

November 22, 2018
Page 10
alternatives that purportedly did not.33 After ranking the alternatives from greatest to least
percentage changes for each MOE, the alternatives were given different "quartile" scores
according to where they fell in the rankings.34 The alternatives in the top quarter were given a
score of "4", and those in the next quarter a"3" and so on.35 This quartile ranking system
artificially inflated the incremental differences between alternatives, creating the illusion that
some were much more successful than others.
Traffic forecasts are inherently limited in their ability to accurately forecast future traffic.
Indeed, FHWA's Traffic Analysis Toolbox warns that "[i]t is risky to design a road facility to a
precise future condition. .. Thus, it is good practice to explicitly plan for a certain amount of
uncertainty in the analysis."36 Given this level of uncertainty, the minute differences between the
respective performance of the various alternatives were likely not even statistically significant.
The Complete 540 Traffic Forecast Technical Memorandum recognized the inherent inaccuracy
of NCDOT's traffic forecasts:
The 2009 TRM V4 model run data was eXtrapolated to 2010 and shows daily
assignment volumes varying (some higher and some lower) from existing count
data along study area roadways. This can be attributed to a quickly changing and
developing study area and very low base year volumes, which make it difficult for
the regional model to completely account for all existing conditions and recent
changes.37
The quartile ranking system exaggerated minute differences in performance between
alternatives that very well could be within the traffic forecast study's margin of error and
magnified them. Despite the insignificant differences between the best-performing and worst-
performing alternatives, the Alternatives Analysis used the quartile ranking system to
prematurely discard purportedly lower-performing alternatives. Alternatives that achieved a
quartile ranking of 3 or 4 were determined as meeting the project purpose, while alternatives that
were (artificially) ranked lower were discarded as unable to meet the purpose and need. 38
Under this arbitrary ranking system, a project that scored well under one MOE, but
marginally less well than another alternative, would be determined to not meet the project
33 Id. at 2-9.
34 Id.
35 Id.
36 Id.
37 Traffic Forecast Tech. Mem. (Apr. 2014), at 17; see id. at Table 9. Base Year No-Build Forecast Traffic Volumes.
3� Alternatives Analysis Report at 2-7, 2-17, Table 2-7: Summary of Quartile Rankings of MOEs for Build
Alternative Concepts.
10

November 22, 2018
Page 11
purpose—even if it performed better than all other alternatives regarding another purpose.
Additionally, an alternative that performed only slightly better than another alternative would be
deemed to meet the project purpose, while another alternative would be deemed not to meet it
despite an insignificant difference between the performance of the two.
For example, the Hybrid 1 Alternative received quartile rankings of 3 and 4 in every
MOE except Average Speed, where it received a 2 for a projected averaged speed of 44.7
MPH.39 However, the next-best performing alternative under the Average Speed MOE, which
earned a"passing" quartile ranking of 3, was projected to achieve an average speed of 45.6
MPH.40 Thus, a difference of 0.9 MPH separated the Hybrid 1 Alternative from the alternatives
which passed muster under this MOE. This small difference—which cannot be statistically
significant given the uncertainty of traffic forecasting—was thus used to eliminate from
consideration an less environmentally damaging alternative that was otherwise competitive and
practicable.
If the forecast speed for the Hybrid 1 Alternative had been a mere 1 MPH greater, it
would have received a quartile ranking of "3" under this MOE and advanced beyond the first-tier
screening process. This arbitrary screening of alternatives failed to provide the objective and
holistic review of a reasonable range of solutions that NEPA and the CWA require and cannot be
relied upon to support NCDOT's assertion that DSA 2 is the LEDPA.
3. The screening process arbitrarily used different methods to assess
non-road building alternatives
The first-tier screening process applied the quantitative MOEs and corresponding
methodology to road-building or road-upgrading alternatives but failed to use the same
methodology to assess the Transportation Demand Management ("TDM), Transportation System
Management ("TSM"), and Mass Transit/Multi-Modal Alternatives. The methodology used for
measuring the MOEs, the Triangle Regional Model ("TRM"), could not be used to evaluate the
various MOEs as to the TDM, TSM, and Mass Transit/Multi-Modal Alternative Concepts.41
Thus, these three alternative concepts were not evaluated using the same methodology as the
other road-building or road-upgrading options and were not included in any of the tables
summarizing the numeric differences between the alternatives. They did not receive relative
39 See id. Table 2-1: Average Daily Travel Speeds in Traffic Study Area (2035) — PM Peak Period; Table 2-7:
Summary of Quartile Rankings of MOEs for Build Alternative Concepts.
4o Id. at Table 2-1: Average Daily Travel Speeds in Traffic Study Area (2035) — PM Peak Period.
41 See Alternatives Analysis Report at 2-10 (average daily travel speeds); id. at 2-11 (travel rimes); id. at 2-14
(average daily VHT); id. at 2-15 (congested VMT); id. at 2-16 (congested VHT).
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scores nor a quartile ranking. As highlighted by the EPA in 2012, the MOEs were "biased
towards personal vehicle use and alternative concepts that promote new location, high-speed
highways."42 This use of inconsistent methodology to evaluate different alternatives failed to
provide the public with the ability to review the relative merits of these less costly, and less
destructive alternative concepts, and undermines NCDOT's assertion that the selected alternative
is the LEDPA.
4. Flawed traffic forecasts overstated the need for a road
The alternatives analysis reflects a highly arbitrary traffic forecasting methodology.
While the 2016 forecasts were generated from the regional Travel Demand Model, the 2040
forecasts were developed by applying a compound annual growth rate to the 2016 Base Year No
Build volumes.43 Failing to use a travel demand model for the basis of traffic forecasts is a
highly unconventional way of doing traffic forecasts for a major facility such as Complete 540.
Usually, the regional travel demand model is used to develop future year forecasts, both for the
"build" and the "no build" scenarios, which are then "balanced/adjusted" for more detailed flows
at specific intersections or turning movement. The method used here, which applies a compound
growth rate to a diversion-adjusted base year estimate, has the effect of throwing away years of
local model development and relying instead on a future unknown growth rate, but none of the
interim growth or network changes between the base year and the future year. Moreover, the use
of a 10 year historic growth rate to factor future congestion is highly unusual and needs to be
further justified. Table 16 suggests that compound growth rates within the study area will be
1.5-2 times the comparable rates for the region.44 Given the current high growth rates in other
areas of the greater Raleigh modeling area, which are among the fastest in the state, this seems
unlikely.
Furthermore NCDOT's alternatives analysis failed to account for the phenomenon of
induced traffic. In response to comments by the Conservation Groups and FHWA noting
NCDOT's use of a single set of socio-economic data to support both the "build" and "no build"
forecast, NCDOT attempted to rectify their error by comparing the build forecasts to an "ICE no
build" condition.45 But this late action was insufficient to rectify the problem. NCDOT should
have used this information earlier in the process when it was screening alternatives. The
42 Stakeholder Report at 177 (2012 EPA Technical Assistance Comments on Draft Alternatives Development and
Analysis Report).
43 Project Level Traffic Forecast 2(2016).
44Id. at tbl. 16.
45 Quantitative ICE Report 12-22 (2017).
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agency's failure to do so renders the alternatives analysis fundamentally flawed, and unable to
rebut the presumption that a less damaging practicable alternative exists. Moreover, as noted
below, the ICE forecast failed to capture the true impact of the road, and so the use of the "ICE
no build" did not solve NCDOT's error.
5. The indirect and cumulative impacts analysis obscured the
availability of less damaging alternatives
The Complete 540 Toll Road would be one of the most environmentally destructive
highway projects in our state's history, impacting thousands of feet of streams, dozens of acres
of wetlands and ponds, and triggering destructive indirect and cumulative impacts through
shifting traffic and land use patterns. Despite overwhelming consensus at all levels of
government that the Complete 540 project will bring significant growth to the project area and
will have a dramatic impact on land use,46 NCDOT asserts in the Quantitative ICE analysis
attached to their Permit Application that the highway will, in fact, have a fairly negligible impact
on growth patterns.47
NCDOT's counterintuitive assertion arises from the use of a set of flawed assumptions in
the Quantitative ICE analysis. The Quantitative ICE document is based on the assumption that
because Wake County as a whole has grown at a fast rate over the past twenty years, the project
area will see a high rate of development with or without the road.48 This conclusion is the
product of an unjustified, illogical leap — that the growth that has been documented in the denser,
urban part of the county will naturally extend and continue at the same high pace in the more
rural, undeveloped region even without a fast access toll road in place. This assumption is
completely unsupported.
To determine how much of the anticipated growth would be attributable to the
construction of the Complete 540 Toll Road, NCDOT compared a"Build" scenario, i.e., a
scenario that reflects how growth would occur if the Complete 540 preferred alternative was
constructed, to a"No Build" baseline scenario. To do this, NCDOT relied on the 2012 Duranton
and Turner study, which looks at the effects of major highways on regional employment over a
20 years period.49 Duranton and Turner found a relationship between centerline miles of
46 Letter from Kym Hunter and Ramona H. McGee, SELC, to Rodger Rochelle, NCDOT 62-67 (Feb. 22, 2018).
Attachment 2.
47 Permit Application at 27.
48 See, e.g., Quantitative ICE Report 4.
49 See generally Gilles Duranton & Matthew A. Turner, Urban Growth and Transportation, REV. OF ECON.
STUDIES, 2012. Attachment 5.
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highway mile and changes in employment in a region. NCDOT used this relationship to
determine a"rule of thumb" that there would be a 20 year impact of 1.5% employment growth
for every 10 percent increase in highway stock. so
The use of the Duranton and Turner study in this way resulted in an arbitrary and
capricious analysis of indirect and cumulative effects. The Duranton and Turner study was
meant to look at overall average impact to regions. There is nothing in the study to suggest that
it can be applied to reverse engineer the impact of a particular highway in a particular region of
an individual city as has been attempted in this case.
Furthermore, the data in the Duranton and Turner study is historic in nature, and ends in
2003. As such, the data fails to acknowledge the shifting trends and preferences related to
driving, public transportation, and lifestyle preferences that have occurred over the last fifteen
years.sl
In addition to these errors in application, the entire forecast of the "indirect cumulative
effect" of NC 540 on population growth appears to rest on the critical assumption that the impact
of adding non-Interstate, tolled road mileage on regional job growth is the same as Interstate
un-tolled roads. Even the report recognizes this key assumption, but provides no evidence that
this would be the case:
Although it will connect to interstate highways and have similar design
characteristics as an interstate highway, the proposed project is a tolled highway
and will not be designated as an interstate highway. Most of the interstate
highways included in the Duranton and Turner study were not tolled.52
Whether this assumption has the effect of increasing or decreasing the likely impact of the
preferred alternative is open to question, but that assumption has not been studied here, and
therefore cannot be used to support NCDOT's representations concerning the project's impacts.
Beyond the assumptions and leaps of logic that stem from totals derived from NCDOT's
misapplication of the Duranton and Turner study, the ICE analysis is further flawed in its failure
to fully eXplain how growth is allocated in the study area. No data or description is provided as
to exactly how the asserted reduction in development (households and jobs) under the No-Build
so Id. at 15. Attachment 5.
s' See Letter from Kym Hunter and Ramona H. McGee, SELC, to Rodger Rochelle, NCDOT 4-11 (Feb. 22, 2018).
Attachment 2.
s� Duranton & Turner, Urban Growth and Transportation at 14. Attachment 5.
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Page 15
scenario is allocated to sub-area zones. This step is critical since it determines the eXtent to
which the Build scenario increases traffic near the proposed eXits of NC 540. Absent a detailed
description of the method, its appropriateness cannot be determined. Further, there is no
discussion of how commercial development, as opposed to `jobs' and `households' would be
allocated. This is also a critical missing piece, since commercial development, particularly retail
trade, has a very large effect on local traffic congestion, relative to housing. There is also no
clear description as to exactly how the estimates of household and job differences between the
`Build" and "No Build" scenarios are converted into acres of development.
Furthermore, the ICE analysis arbitrarily eliminates almost half the growth that it had
found to be attributable to the construction of preferred alternatives by arbitrarily excluding areas
of impacted counties that are deemed to be "outside" the study area to arrive at a projection
where the preferred alternative has just a one percent impact on development.53 This approach
calls into question whether the correct study area has been used — if half of the impact of the
project is deemed to be outside of the defined zone. And, moreover, the results of the analysis,
which show an extremely limited impact on jobs and development, call into question the wisdom
of spending $2.2 billion on a new highway project. The results are further suspect given the
contradictory statements of local planners noted in previous comments. s4
Given the apparently widespread impact of the project, another flaw of the Quantitative
ICE is its failure to look at anything other than a"No Build" alternative and the preferred
alternative. NCDOT's analysis gives the reader no sense how alternative solutions, such as
upgrades to existing highways, would impact jobs, growth and development. This is a
fundamental flaw and undermines NCDOT's assertion that there are no less damaging
alternatives to the selected project. As such, the Corps lacks sufficient information to determine
whether the preferred alternative is the LEDPA.
C. NCDOT failed to study a number of practicable less environmentally
damaging alternatives, biasing the selection of the LEDPA
1. Improvements to existing highways
The Alternatives Analysis report eliminated three different alternatives pertaining to
improving existing roadways. These alternatives consisted of widening existing expressways in
the project study area, upgrading a primary parallel arterial road, or a combination of such
s3 Quantitative ICE Report 18-34.
54 See Letter from Kym Hunter and Ramona H. McGee, SELC, to Rodger Rochelle, NCDOT 62-67. Attachment 2.
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improvements.55 Each of the alternatives would widen some portions of I-40, I-440 and the US
64/US 264 Bypass to 12 lanes.56 Improve EXisting Roadways 1 consists entirely of widening
parts of these expressways throughout the project study area.57 Improve Existing Roadways 2
would widen segments of NC 55 and NC 42 to six lanes in addition to widening eastern parts of
I-40, I-440 and US 64/264. Improve Existing Roadways 3 would likewise widen the eastern
segments of the freeways, and would widen sections of Jessie Drive and Ten Ten Road.sg
For each of these, the Alternatives Analysis Report concluded that the road improving
alternatives would not "result in a comparatively large reduction in travel times relative to the
other Build Alternative Concepts."59 In reality, the diminutive differences in time savings
between the alternatives, as noted above, show that all the alternatives were comparable in terms
of their improvements over the No-Build Alternative. Upgrade alternatives are more competitive
and practicable than the faulty MOEs and quartile ranking system suggested, and their
environmental impacts and feasibility should be evaluated against the costly, destructive toll
highway DSAs. In particular, upgrading eXisting roadways should be considered in combination
with TDM, TSM, and mass transit options as discussed below. NCDOT's failure to fully study
alternatives that improve existing highways means the Corps' lacks sufficient information to
determine whether the preferred alternative is the LEDPA.
2. Hybrid alternatives
The Alternatives Analysis reviewed three "hybrid" alternatives, each of which involved
"a combination of constructing a roadway on new location and either widening existing
expressways or upgrading a primary parallel arterial roadway between NC 55 Bypass in Apex
and I-40."60 These alternatives performed nearly as well or better than the New Location
Highway option under the travel times review in the Alternatives Analysis.61 Additionally,
Hybrid alternatives 1 and 3 consistently performed well under the other MOEs.
Hybrid 1's environmental, human, and feasibility impacts were never considered despite
its strong potential to meet the project's purposes. Because of a quartile ranking of "2" in the
ss Alternatives Analysis at 2-4.
sb Id.
s� Id.
ss Id.
59 Id. at 2-25.
60 Id. at 2-5.
�' Id. at Table 2-2: Average Travel Time from RTP to Listed Destinarions (2035) — PM Peak Period, Table 2-3
Average Travel Time from Brier Creek to Listed Destinations (2035) — PM Peak Period.
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Average Speed MOE, Hybrid 1 was eliminated from consideration early in the screening
process. Strangely, the Alternatives Analysis concluded that this alternative would
simultaneously "result in a comparatively large reduction in travel times relative to the other
Build Alternative Concepts," but "result in a reduction in average travel speeds."62 The
Alternatives Analysis does not investigate this counterintuitive result, and instead dismissed the
option because of its apparent inability to improve average speeds in the travel area.
Hybrid 1 also would use only the western segments of the toll highway which already
have funding programmed in the North Carolina State Transportation Improvement Program.63
In contrast, Hybrids 2 and 3 would have included a segment of the toll highway which currently
lacks funding.64 Given Hybrid 1's secured funding and relative strong performance, this
alternative should have received detailed study to determine whether it could achieve the
project's purposes at a lower environmental and human cost than the eXpensive, full toll highway
option. NCDOT's inadequate analysis of Hybrid alternatives means the Corp is without the
necessary information to determine whether the preferred alternative is the LEDPA
3. ACCESS2040
The Conservation Groups, working with an expert transportation planner, Walter Kulash,
developed an alternative to the Toll Road focused on upgrades to existing infrastructure. This
alternative, named "ACCESS2040", would achieve most of the benefits of the Complete 540
Toll Road at a fraction of its cost and environmental impact, and improve mobility, congestion
relief, and regional connectivity by augmenting projects already recommended in plans adopted
by the Capital Area Metropolitan Planning Organization ("CAMPO"). There is no doubt that this
ACCESS2040 is practicable and will impact far less streams and wetlands that the preferred
alternative, making it the LEDPA. Mr. Kulash's full report detailing the ACCESS2040
alternative is set out in full in Attachment 6. The alternative is however, summarized briefly
below.
ACCESS2040 starts with a foundation of 52 projects selected from the 2040
Metropolitan Transportation Plan ("CAMPO MTP") adopted by CAMPO. Most of these
projects are widening of roads to multi-lane divided arterials. To this base of improvements,
ACCESS2040 would add a small mileage of extensions to existing roads and replacement of at-
grade intersections with grade-separated intersections. These widenings and eXtensions would
62 Id. at 2-26.
�3 See id. at 2-5-2-6.
�4 See id. at 2-6.
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Page 18
create continuous multi-lane arterial routes across southern Wake County in both the east-west
and north-south directions.
ACCESS2040 anticipates an increase in transit travel as projected by the Wake County
Ti^ansit Plan and the GoRaleigh five-year transit improvement plan. ACCESS2040 meshes with
projects for non-motorized (bicycle and pedestrian) travel as programmed in the CAMPO 2040
MTP. ACCESS2040 would complement these plans with road designs that immediately
accommodate a wide range of users and anticipates and provides for future increases in non-
automobile travel.
The ACCESS2040 approach of building on a base of CAMPO 2040 MTP projects differs
somewhat from the "IE" ("Improve Existing") alternatives that the Transportation Agencies
eliminated early in the process. The first tier screening selected only a limited ("fiscally
constrained") number of the planned CAMPO projects, thereby eliminating almost all projects
with more than a 15-20 year funding horizon. Nonetheless, Mr. Kulash points to the
Transportation Agencies' analysis of Improve Existing 3-Arterials ("IE3-A") as an alternative
that is most like ACCESS2040. Mr. Kulash notes that ACCESS2040 goes significantly further
than IE3-A. One can assume that ACCESS2040 will achieve at least the same level of benefit as
IE3-A. Specifically, Mr. Kulash notes that under the Transportation Agencies' analysis IE3-A
would yield around one half of the mobility gains and more congestion relief than the New
Location Highway.65 Tables in the Transportation Agencies' own traffic analysis show that a
new location highway is expected to reduce congested VMT by just 12.06% in the study area
while IE3-A is expected to improve the same measure by 22.49%.66 It is therefore reasonable to
anticipate that ACCESS 2040 would likewise do a much better job of reducing congestion on
existing roads—one of the primary stated purposes of the project. While not producing the exact
same result as a$2.2 billion new-location 70 mile per hour toll freeway, the alternative would
also make significant gains in mobility the other project purpose.
Coupled with this strong showing by ACCESS2040 in meeting the project purpose and
need is the fact that it would be significantly less destructive to the environment, would cost
significantly less just $294 million over costs already schedule in the CAMPO MTP—and
perhaps most important, would be open to all users, not just those willing and able to pay a
pricey toll. Due to these advantages, and the fact that ACCESS2040 out performs the preferred
alternative on one of the primary purposes for the project, NCDOT must conduct further analysis
�5 First Tier Concepts Screening and Traffic Reassessment at Tbls 2-8 (2017).
�6 Id. at Tbl. 3.
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of ACCESS2040, which is both practicable and less damaging than Complete 540. Without this
information, the Corps cannot legally issue a 404 permit.
4. Transportation demand management
The NEPA documents also include an insufficient analysis of TDM options that might
work in conjunction with other alternatives by reducing demand for the road infrastructure. The
DEIS and Alternatives Analysis report rejected TDM because "there is no evidence to suggest
that significantly larger percentages of area workers will begin to take advantage of TDM
strategies."67 The report, however, provides no contrary evidence suggesting workers and
employers would not be able to utilize TDM strategies. Indeed, a preparer of the DEIS
acknowledged in an earlier draft of the document that there is not evidence that reaching 60%
participation in TDM strategies is unattainable.68 Subsequent NEPA documents failed to provide
any evidence to the contrary or explain NCDOT's arbitrary rejection of TDM options.
The Alternatives Analysis was purportedly able to generate data and provide research
regarding the new location highway alternatives and should have done likewise for the TDM
alternative. The NEPA documents highlight that the main traffic problems in the project study
area are during peak commute times, which makes TDM a particularly on-point solution.
In fact, NCDOT itself has evidence suggesting that significantly larger percentages of
workers could indeed take advantage of TDM strategies. The City of Durham has recently
received a million dollar grant funding the development and implementation of TDM strategies
during peak commuting times.69 Furthermore, NCDOT has successfully implemented TDM
strategies to manage traffic in relation to its Fortify 440 project, which is right neXt to the
northern boundary of the Complete 540 project study area. NCDOT recently celebrated the
collaborative effort between "NCDOT and local, transportation, business, and community
leaders", noting "[i]n addition to drivers taking advantage of alternate routes ... they have also
67 Alternatives Analysis at 2-20; DEIS at 39.
68 Draft DEIS document titled "Lochner responses to DOJ comments l-4", at 24, Attachment 7(see comments
NCDOJ 112 and JS113). The preparer attempted to address this through citation to supporting technical documents;
the final version of the DEIS cites to the Alternatives Analysis to "supporY' the claim that there is no evidence large
numbers of commuters would use TDM strategies, yet the Alternatives Analysis likewise contains no evidence to
support this claim as noted above. See id.; DEIS at 39 n.l.
69 Durham City Manager, News Release: Durham Wins Grant to Test Ways to Reduce Downtown Traffic
Congestion (Feb. 21, 2018) https://durhamnc.gov/DocumcntCcntcr/Vicw/20304/Durham-Wins-Grant-to-Test-Ways-
to-Rcducc-Downtown-Traffic-Congcsrion?bidld.
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changed their working hours and started telecommuting to help limit the traffic impact."70
NCDOT staff attribute this success to a"significant" number of individuals who have changed
when they travel through the project zone, or who avoid the project zone altogether.�i Such
statements fly in the face of the suggestion that there is no evidence of significant numbers of
workers in the area open to using TDM strategies. NCDOT even has an entire website devoted
to TDM-style strategies around the Fortify Project, including resources for employers about
flexible work schedules and teleworking,�� and commuting resources for drivers in the area.73
NCDOT cannot now arbitrarily claim that while TDM strategies have been successful with the
Fortify 440 project, such strategies would not be feasible elsewhere.
Elsewhere, the Alternatives Analysis asserts that "60,000 traffic study area workers," or
"60 percent of maXimum TDM-eligible employees" would have to use TDM strategies "to
achieve a congested VHT reduction comparable to the Build Alternative Concepts."74 First of
all, TDM alternatives should not have been compared to some preferred `Build" options, but to
the No-Build scenario, as were each of the other build alternatives. Second, this assertion does
not reveal what the VHT reduction would be in such a scenario—nor does it provide information
about what sort of VHT reductions could occur with a different number of workers utilizing
TDM. For example, if 30,000 workers utilizing TDM could still result in a reduction in
congested VHT over the no-build, and if having 30,000 workers utilizing TDM strategies is
feasible, that is information necessary for evaluating this alternative's practicability.
This inadequate review of TDM strategies did not provide sufficient justification to
eliminate the TDM alternative from review. The TDM alternative should have advanced to later
stages of study, where its environmental, economic, and human impacts could have been
evaluated. Moreover, it should have been studied as one aspect of a combination of solutions.
5. Increased public transportation
The mass transit/multi-modal alternative was also insufficiently evaluated in the
Alternatives Analysis. After acknowledging that the TRM could not determine travel times for a
70 News Release, NCDOT, Improving Fortify Travel Times a Collaborative Effort (Nov. 20, 2015),
https://apps.ncdot.gov/newsreleases/details.aspx?r=11993, Attachment 8.
" Id.
��See NCDOT.Gov, Employer Resources, Fortify NC, http://www.ncdot.gov/fortifync/employer-resources/ (last
accessed Jan. 6, 2015), Attachment 9.
73 See NCDOT.Gov, Driver Resources, Fortify NC, http://www.ncdot.gov/fortifync/driver-resources/ (last accessed
Jan. 6, 2015), Attachment 10.
74 Alternatives Analysis at 2-16.
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mass transit/multi-modal alternative, the only evaluation of this alternative was the
unsubstantiated statement "[b]uses may actually increase travel times due to frequent stops."75
The report made a similar fleeting statement regarding average speeds, conceding that buses
could improve speeds, but that they also may reduce speeds due to stops.76 These unhelpful,
vague conjectures are an insufficient basis to determine that a mass transit/multi-modal option is
not reasonable— particularly when considered alongside other solutions.
The Alternatives Analysis notes that the "number of buses serving the study area on a
daily basis would need to increase from the 50 or so that are currently in use to nearly 600, and
each would need to consistently operate at nearly full capacity ... in order to achieve a decrease
in study area traffic congestion and an improvement in travel times sufficient to meet the
project's primary purposes."�� Importantly, the project purposes do not contain a threshold level
of reductions or quantitative measures; the purposes are generally to increase mobility and
reduce congestion, and not by any particular amount. Either NCDOT has some preconceived
requisite amounts of congestion and mobility in mind, or NCDOT compared these alternatives to
the specific numbers attainable by building the toll road. Both possibilities contravene
NCDOT's statement of purpose and violate NEPA and the CWA.
For example, what if increasing bus service to 300 buses would reduce congestion and
increase mobility by a discernible amount, even if not by as much as the toll road? This, in
conjunction with other alternatives' elements such as TDM, TSM, and improving existing
roadways, could combine to better achieve the project's purposes with less costs and fewer
impacts than the Complete 540 toll highway. Such considerations are particularly relevant now
that Wake County has released its recent long-term transit plan, which includes quadrupled bus
service within the county and adding a commuter rail line connecting Garner with Raleigh, North
Carolina State University ("NCSU"), Morrisville, RTP, Cary, Durham, and Duke.78 This plan
will directly impact the feasibility of a mass transit/multi-modal alternative, as well as other
alternatives, within the project study area.
The NEPA documents also suggest that increasing bus service to 600 buses within the
project study area would not be feasible due to costs: "The cost associated with such a large
's Id. at 2-11.
76 Id. at 2-10.
" DEIS at 39-40; Alternatives Analysis at 2-14-2-15.
�g RECOMMENDED WAKE COUNTY TRANSIT PLAN (Dec. 2015), at 8-11, Attachment 11; Rebecca Martinez, $2.3
Billion Recommended Wake Transit Plan Would Quadi^uple Bus Service, WLTNC, Dec. 9, 2015,
http://wunc.org/post/23-billion-recommended-wake-transit-plan-would-quadruple-bus-service#stream/0, Attachment
12.
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eXpansion of bus service would be high .... It is unlikely that these eXpansion and ongoing
operation costs could be met by bus fares alone." 79 Such an assertion is completely
unsupportable when the toll highway will cost upwards of $2 billion and NCDOT has no
financial plan in place for how to pay for it. EPA even suggested that mass-transit would be a
reasonable alternative to the new toll highway option because it would create new, permanent
jobs "without the disproportionate requirement for infrastructure maintenance," as well as with
"fewer and less substantial indirect and cumulative impacts."80 The FEIS merely cites to the
DEIS and Alternatives Analysis, and fails to address this issue or provide any support for the
notion that mass transit alternatives are prohibitively eXpensive.81 Without more supporting data
about bus costs, the comparative cost of bus service does not provide a rational basis for
rejecting the mass transit/multi-modal alternative.
D. The stated project purpose is impermissibly narrow and illegally biases the
selection of the LEDPA
The statement of project purpose required by the section 404(b)(1) Guidelines is of
critical importance because it serves as the touchstone for the analysis of alternatives. "It is only
when the `basic project purpose' is reasonably defined that the alternatives analysis required by
the [§ 404(b)(1)] Guidelines can be usefully undertaken by the applicant and evaluated by the
Corps." (U.S. Army Corps of Engineers, Permit Elevation, Old Cutler Bav Associates at 6)
(Sept. 30, 1990). Although courts have held that the Corps must consider the applicant's view of
the project purpose, see�e•�•, Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044, 1048
(Sth Cir. 1985), the Corps is not bound by the applicant's stated purpose. Corps regulations
provide that "the Corps will, in all cases, exercise independent judgment in defining the purpose
and need for the project from both the applicant's and the public's perspective." 33 C.F.R. §
325, App. B(9)(b)(4).
"An applicant cannot define a project in order to preclude the existence of any alternative
sites and thus make what is practicable appear impossible." Svlvester v. U.S. Army Corps of
E�n 'rs, 882 F.2d 407,409 (9th Cir. 1989). The Assistant Secretary of the Army (Civil Works)
has similarly cautioned against "so narrowly defining the project purpose that it unreasonably
limits the consideration of alternatives and, thereby, subverting a key provision of the [§
404(b)(1)] guidelines." (Old Cutler Bav Associates at 4). Corps headquarters has rejected
79 DEIS at 40.
80 Stakeholder Report at 178 (2012 EPA Technical Assistance Comments on Draft Alternatives Development and
Analysis Report).
81 See FEIS at 15.
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overly restrictive statements of project purpose, emphasizing that "[t]he project purpose must be
defined so that an applicant is not in the position to direct, or attempt to direct, or appear to
direct, the outcome of the Corps evaluation required under the § 404(b)(1) Guidelines." (Old
Cutler Bav Associates at 7).
The statements of purpose that NCDOT provided in its Permit Application do little more
than restrict the consideration of alternatives and point to a pre-ordained conclusion. The project
purposes stated by NCDOT in its Permit Application are almost identical to those used in its
FEIS: "the first purpose is to improve mobility within or through the study area during peak
travel periods. The second purpose is to reduce forecast congestion on the existing roadway
network within the project study area."g�
NCDOT also articulated a"secondary purpose" of the project: "to improve system
linkage in the regional roadway network by completing the 540 outer loop around the Raleigh
metropolitan area — an infrastructure improvement that has been sought by local communities
and planner for more than 40 years."83
As identified by EPA early on in the alternatives development process, such a purpose is
out of line with FHWA Guidelines and creates a clear preference for building a road and a bias
against any alternatives that would not complete the 540 Outer Loop.84 The FHWA Guidelines
succinctly disapprove of such a purpose: "We don't typically decide to link something just
because we can."85 Indeed, this guidance explains that a purpose of system linkage "does not
necessarily translate to a completely new transportation facility," and instead, "modification of
an existing facility may be a viable method of improving system linkage."86
This impermissible focus appears again in the introduction of the Purpose and Need
Statement, which stated that NCDOT proposed "transportation improvements with a focus on the
consideration of an extension of the Triangle Expressway (NC 540) from NC 55 Bypass near
Holly Springs to the US 64/US264 Bypass south of Knightdale."g� The Statement is otherwise
82 FEIS at 7; Permit Application at 1.
83 Permit Application at 1.
84 Stakeholder Report at 176 (2012) EPA Technical Assistance Comments on Draft Alternatives Development and
Analysis Report).
85 FHWA Guidance, Version 2(Feb. 2009) at 17, Attachment 13.
�� Id.
87 Purpose & Need Statement at cover page.
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replete with examples illustrating that it was a foregone conclusion that the project would only
manifest in the form of a highway completing the 540 Outer Loop. 88
Throughout the NEPA process the Conservation Groups raised concerns about this
impermissibly narrow formulation of purpose. The Conservation Groups specifically
commented on the problematic "secondary purpose" which essentially admits that the purpose of
the project is to build a pre-ordained Toll Road.89 The Agencies only responded that alternatives
were not screened out solely for failure to meet this secondary purpose.90 Nevertheless, every
single one of the DSAs studied in the DEIS completes the outer loop.
E. The selected alternative does not meet the purpose and need articulated for
the project and therefore cannot serve as the LEDPA
NCDOT's assertion that there are no practicable alternatives to the preferred alternative is
further undermined by the fact that the preferred alternative does not meet one of the two stated
primary purposes for the project. The Permit Application states that the second primary purpose
of the project "is to reduce forecast congestion on the existing roadway network within the
project study area." The FEIS, however, demonstrates that the preferred alternative will not
meet the second purpose. Not only would the preferred alternative not reduce forecast
congestion on the existing roadway network, but NCDOT's own forecasts suggest that it will
actually make congestion on a number of key roadways worse than if the road was not built at
all. This straightforward truth has been hidden from the public by NCDOT, who in public,
disingenuously claim without support that "[y]ou can eXpect travel speeds to increase by 8
percent and more on arterials." 91
The DEIS screened for the congestion relief purpose with three different MOEs. The
Conservation Groups discussed at length in previous comments, and reiterated above how this
general screening concept is utterly arbitrary. The three MOEs employed to assess alternatives
8� E.g. id. at 5(project history section devoted to history of the 540 Outer Loop, not transportarion needs in project
area); id at 16 (identifying the State Transportation Improvement Program's identifiers for the "proposed action['s]"
associated three "freeway facility on new location" projects, which complete the 540 Outer Loop); id. at 19
(highlighting local governments' resolution requesting a study of toll funding for constructing I-540 in southwestern
Wake County).
89 Id. at 7. Attachment 13.
y0 Final Stakeholder Involvement Report at Response 17 to SELC Comments (2017).
y' Community Meetings Will Provide Info on NC 540 Extension, WRAL.COM (Feb. 20, 2018, 5:52 PM), available
at http://www.wral.com/community-meetings-will-provide-info-on-nc-540-extension/17357806/ (when asked by
counsel for the Conservarion Groups to idenrify what this 8°/o improvement figure rcferred to, Mr. Rochelle was
unable to identify his source). Attachment 14.
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Page 25
for congestion relief were "Total Vehicle Hours Traveled (VHT) on the major roadway network
in the project study area over an average daily period;" "Congested Vehicle Miles Traveled
(VMT) on the major roadway network in the project study area during the PM peak travel
period;" and "Congested VHT on the major roadway network in the project study area during the
PM peak travel period."92 Obscured from the public, however, is the fact that these measures
were all assessed on a system-wide basis with the Complete 540 factored into the results.93 As
such, it is completely unknowable whether congestion relief would actually occur on the existing
roads, or whether the improvements in VHT, VMT and Congested VHT are all due to the high
speeds and limited congestion on the Complete 540 project itself rather than any relief on
eXisting roadways. Because the purpose and need of the project was to "reduce forecast
congestion on the existing roadway network within the project study area," and not "reduce
forecast congestion on a system-wide basis" these MOEs were completely useless to assess the
ability of the project alternatives to meet the stated purpose and need.
The Quantitative ICE study included with the FEIS makes clear that the preferred
alternative will not, in fact, reduce congestion on existing highways. The study shows that by
2040 the preferred alternative would result in 12 primary corridors with daily congested roadway
mileage whereas under a no-build condition there would only be seven congested primary
roadways.94 Similarly, in its review of PM congestion, the study shows that 23 corridors would
be congested under a build condition compared to 21 under a No Build condition.95 Moreover,
when compared to existing conditions, forecasts for the preferred alternative show reduced
speeds and increased congestion for nearly every road link studied.96 This revelation is
important for two key reasons. First, the results in the ICE study demonstrate that the preferred
alternative does not meet one of two primary stated purposes for the project. Second, the ICE
study further illuminates the inadequacy of the screening methodology in the DEIS, and makes
clear that a full range of alternatives have not been assessed based on their ability to relieve
congestion on existing highways.
NCDOT may argue that while the preferred alternative will make key corridors more
congested, overall the entire Future Land Use Study Area ("FLUSA") will see congestion
reduction.97 This argument is unavailing for several reasons. First, the ICE study notes that the
y� 2004 Alternative Development and Analysis Report at 2-8.
y3 Alternatives Development and Analysis Report (May 2014) at 2-12 - 2-18 (noting that the measures were
calculated using the TRM).
y4 Quantitative ICE Report 75.
ys Id. at77.
96Id. at 75-79.
97 ICE Report 74.
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FLUSA-level congestion reduction is the result of relief on "many minor TRM links not
identified as a major corridor."98 The ICE study does not identify which roads these are, and
there is therefore no way for the Conservation Groups or the public to know who, if anyone uses
these roadways as part of their commute and how the increased congestion on these "minor
links" in a"no build" scenario would impact travel in general, particularly when compared to the
"build" alternative where major links are more congested. It also is unclear whether the project
itself was factored into this FLUSA level forecast, as it was in the MOE screening process.
Second, when the statement of purpose and need was developed for the Complete 540
project, congestion relief on unidentified minor arterials was not discussed. Rather, the 2011
Statement of Purpose and Need report discussed existing poor levels of service on I-40, NC 42
and NC 50,99 and future poor levels of congestion on Ten-Ten Road and segments of US 1/64.100
In the very neXt paragraph, NCDOT stated that the "second purpose of the proposed action is to
reduce forecast congestion on the existing roadway network within the project study area." The
Report discussed congestion on these same roadways in more detail later in the report, noting
that "several key roadway segments within traffic analysis area operate at an unacceptable
LOS."101 And yet the Quantitative ICE study shows that the preferred alternative will actually
result in more congestion on many of these exact roads. io�
Finally, while the Quantitative ICE is helpful in demonstrating to the public, for the first
time, that the preferred alternative will actually lead to increased congestion on area roadways, it
is inadequate for justifying the selection of the preferred alternative as the LEDPA, as it fails to
rebut the presumption that a practicable less environmentally damaging alternative exists.
Indeed, the Quantitative ICE suggests the exact opposite — that the selected alternative is
impractical, unsupported by NCDOT's own NEPA documents, and therefore cannot be the
LEDPA.
98 ICE Report 75.
99 Purpose and Need Statement at 3.
ioo Id. at 4.
101 Id. at 1 L In a related but separate point the Conservation Groups note that no traffic counts were taken on
Raleigh's Inner Loop, I 440, despite congestion on this corridor being noted in the Statement of Purpose and Need
report. Significant improvements are being made to this corridor which may have a bearing on how congested it is
and how many people would use Complete 540 as an alternative. As such, current and future congestion on I-440
should be studied and a variety of alternatives should be screened based on their ability to reduce congestion on this
road and others.
102 See Quantitative ICE Report 75 (Table 35, showing that the Preferred Alternativc will see increased congestion
over a"no build" scenario on a variety of roadways including I-40).
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II. The Permit Should be Denied Because NCDOT has not Presented Full Details about
the Project in its Application
NCDOT's Permit Application only includes information about one-third of the proposed
project. Important requirements including final project drawings, stormwater management plans,
utility plans, and a complete description of impacts from the project have only been documented
for R-2721.103 NCDOT failed to provide any of this critical information for R-2828 and R-2829,
stating that final designs are not complete.104 NCDOT intends to "apply for any relevant permit
modifications for R-2828 and R-2829 when final designs are complete."ios NCDOT is thus
improperly asking the Corps to grant a 404 permit based on design plans that don't even include
two-thirds of the project. 40 C.F.R. § 1508.27(b)(7); City of OXford v. FAA, 428 F.3d 1346,
1353 (l lth Cir. 2005) (NEPA prevents a proponent from breaking a proposal into small pieces
that, when viewed individually, appear insignificant but that are significant when viewed as a
whole).
It is improper for NCDOT to rely on future modification of the permit at the outset of the
permitting process. Federal regulations governing the issuance of section 404 permits do not
anticipate permit modifications being used in such a way. The language governing modifications
makes it apparent that modifications can only take place when the Corps on its own motion, or
on the request of the permittee, "reevaluate[s] the circumstances and conditions of any permit."
33 C.F.R. § 325.7. Nowhere do the regulations suggest that a modification can be used to allow
applicants to limit the initial permit to detailing only a small section of the total project, or to
preemptively segment the permitting process as is being attempted in this case. Id.
Further, the Corps cannot issue a permit at this time, because without full project details,
it will be unable to make the required findings under the section 404(b)(1) Guidelines. Before
the Corps can issue a section 404 permit it must "determine in writing the potential short-term or
long-term effects of a proposed discharge of dredged or fill material on the physical, chemical,
and biological components of the aquatic environment." Without a full analysis of the impacts
for the entire project the Corps cannot make this determination. For example, the Corps is
required to "determine the nature and degree of effect that [a] proposed discharge will have,
individually and cumulatively." 40 C.F.R. § 230.11(c) (emphasis added). It will be impossible
for the Corps to make this determination at the current time because full details about the
discharges associated with the project are not yet known, and thus the cumulative impact cannot
io3 Permit Application at 3.
i o4 Id. at 2.
ios Id.
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yet be determined. 40 C.F.R. § 1508.27(b)(7) ("Significance cannot be avoided by terming an
action temporary or breaking it down into small component parts."). Similarly, the Corps cannot
yet make a proper determination as to the "cumulative effects on the aquatic ecosystem." 40
C.F.R. § 230.11(g). These requirements and others make it clear that the section 404 permitting
process was not designed to be conducted in a piecemeal basis with permits being segmented
over time through procedurally inappropriate "modifications." See Sierra Club v. U.S. Armv
Corps of En_gineers, No. CV H-11-3063, 2012 WL 13040281, at * 18 (S.D. Tex. Aug. 22, 2012)
(explaining that Section 404 permit analysis must include cumulative impacts and secondary
effects). The Corps should, therefore, refrain from considering the Permit Application until a
full analysis of the entire project has been completed.
III. The Corps Cannot Issue a Section 404 Permit Because NCDOT has Failed to
Consider Climate Change in its Application.
When studying a highway, there are two aspects of climate change that must be
considered under both NEPA and the Section 404(b)(1) guidelines. First, an agency should
consider how a new highway, and the additional VMT it will promote, will contribute to climate
changing emissions. As noted in our comments on the FEIS, NCDOT's attempt to shrug off an
analysis of greenhouse gases emissions simply because CEQ recently rescinded climate change
guidance is not sufficient to comply with NEPA. Federal Courts continue to repeatedly make
clear that climate change is an impact that must be addressed in an EIS. See, e.g., Indigenous
Envtl. Network v. United States Dep't of State, 2018 WL 5840768 (D. Mont. Nov. 8, 2018)(EIS
for Keystone pipeline failed to consider cumulative impact of pipeline on climate change); Sierra
Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357, 1373-74 (D.C. Cir. 2017) (holding
FERC violated NEPA in not providing estimate of GHG emissions and rejecting argument that
"it is impossible to know exactly what quantity of greenhouse gases will be emitted as a result of
this project"); Ctr. For Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d
1172, 1216-17 (9th Cir. 2008) (holding NHTSA was arbitrary and capricious when EA did not
take hard look at climate change impacts of NHTSA Final Rule); High Country Conservation
Advocates v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1190 (D. Colo. 2014) (holding FEIS
violated NEPA where it failed to discuss impacts caused by GHG emissions); see also
Just as important, an agency must consider how a changing climate might impact its
environmental analysis of a project. Aqualliance v. U.S. Bureau of Reclamation, No. 1:15-CV-
754-LJO-BAM, 2018 WL 903746, at *39 (E.D. Cal. Feb. 15, 2018) (holding that failure to
analyze impacts of climate change, including increased precipitation, on project violated NEPA).
NCDOT has failed to do this in its NEPA documents and in its permit application. In North
Carolina we have recently suffered two 500-year floods in 23 months. Yet despite the clear
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inadequacy of such models, the analysis of floodplains in the EIS remains based on the 100 year
flood plain model only.106 Thus despite the massive amount of impervious surface the project
will add to Southern Wake and Johnston counties there is no reasonable analysis of how the
project will add to flooding concerns as our climate changes.
IV. The Corps Cannot Issue a Section 404 Permit Because Doing So Would Jeopardize
the Continued Existence of Endangered Species
The Corps' Section 404 Guidelines strictly prohibit issuance of a permit that would
"jeopardize[] the continued existence of species listed as endangered or threatened under the
Endangered Species Act ... or result[] in likelihood of the destruction or adverse modification of
a habitat which is determined ... to be a critical habitat under the Endangered Species Act." 40
C.F.R. § 230.10(b)(3). Under the ESA federal agencies must consult with the U.S. Fish and
Wildlife Service to ensure 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 or result in the destruction or adverse modification of habitat of such species which is
determined ... to be critical." 16 U.S.C. § 1536(a)(2). Thus, the Corps' Section 404 Guidelines
essentially replicate and reemphasize the ESA mandate to ensure that projects authorized by the
Corps comply with the ESA.
A population of Dwarf wedgemussel, listed as endangered under the ESA, has long
persisted in Swift Creek within the Complete 540 project area. This Swift Creek population of
Dwarf wedgemussel is considered essential to the recovery of the species, with the USFWS
identifying this population as one that must be viable in order for the species to ever be
downlisted from endangered to threatened.107 Similarly, the North Carolina Wildlife Resources
Commission ("NCWRC") identifies the Swift Creek Watershed as essential for the continued
survival of endangered or threatened aquatic species.108 The USFWS stresses that the Swift
Creek Dwarf wedgemussel population's viability is "vitally important," and that it "cannot
understate the significance of this issue."109
Another mussel species, the Yellow Lance, has recently been listed as threatened under
the ESA and also inhabits streams within the Swift Creek Watershed. USFWS considers Swift
106 See, e.g., ICE analysis at C2, FEIS at 24, 54.
107 Dwarf Wedgemussel 2007 Status Review 5. Attachment 15.
108 Dwarf Wedgemussel Viability Study — Phase 2(2016).
109 Letter from Gary Jordan, USFWS, to Richard W. Hancock, P.E. NCDOT (Nov. 25, 2015), at 2. Attachment 16.
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Creek a"stronghold for yellow lance in [the] Neuse basin."iio Swift Creek and Middle Creek
are also included in the critical habitat designation for the Atlantic Pigtoe, which has recently
been proposed to be listed as threatened under the ESA. i i i Additionally, the Neuse River, which
flows through the proposed Complete 540 action area, has been designated as critical habitat for
the endangered Atlantic Sturgeon. Several other rare and state-listed aquatic species that have
been identified in the Complete 540 project area including the Neuse River Waterdog (state
special concern), Carolina Madtom, and Green Floater (state endangered) have been petitioned to
be listed under the ESA.ii�
The Complete 540 project as envisioned in the Permit Application and supporting
documents would jeopardize the continued existence of the Dwarf wedgemussel, Yellow Lance,
and Atlantic Sturgeon populations in violation of the ESA, and will likely result in severe
impacts to other sensitive and rare species in the area.
A. Building the toll road would result in severe direct, indirect, and cumulative
impacts to rare mussels
The Biological Assessment (`BA") accompanying the Complete 540 Permit Application
contains a litany of likely impacts that would result from the project, reaching a biological
conclusion of "likely to adversely affect" for both the endangered Dwarf wedgemussel and
threatened Yellow Lance.113 This result is hardly surprising considering the direct effects of a
massive highway crossing over essential habitat for the Dwarf wedgemussel and Yellow Lance
as well as the indirect and cumulative effects from future increased traffic and land development.
Nevertheless, and in direct contravention of its prior statements on the issue, USFWS's cursory
Biological Opinion (`BO"), which is currently being challenged in the Eastern District of North
Carolina District Court,14 irrationally concludes that the project will not jeopardize either
species.
In the most recent Status Review for the Dwarf wedgemussel, the USFWS verified that
four main factors listed in the species' 1993 recovery plan continue to constitute key threats to
� 10 Sarah McRae, USFWS, Powerpoint Presentation: ESA Consultation Considerations for Complete 540
Transportation Project (Feb. 3, 2015), at slide 12, Attachment 17.
"' Proposed Rule and 12-Month Finding for Atlantic Pigtoe, 83 Fed. Reg. 51570, 51585 (proposed Oct. 10, 2018)
(to be codified at 50 C.F.R. 17).
"� See N.C. WILDLIFE RES. COMM'N, Protected Wildlife Species ofNorth Carolina (Oct. 2017), at 4, 6.
Attachment 18.
13 Biological Assessment 77, Tbl. 19 (2017).
14 Sound Rivers u USWFS et al, 4:18-CV-97 (E.DN.C. 2018).
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the species: impoundments, pollution, riverbank alteration, and siltation. i i s The agencies' BA
lists as threats to the Dwarf wedgemussel and Yellow Lance: sedimentation, habitat alteration,
toXic contaminants, hydrologic changes due to land use changes, changes in peak discharge of
stormwater flow, changes in runoff volume changes in base flow, thermal pollution, invasive
species, and loss of riparian buffers. Similarly, the USFWS's Yellow Lance Species Status
Assessment highlights the negative impacts of road development on mussels, including land
clearing, habitat fragmentation, increased impervious surfaces, sedimentation, heavy metal
pollution, and changes in water temperatures and runoff patterns.116 USFWS also identifies the
primary threats to Atlantic Pigtoe as road drainage runoff, disruption of natural flow patterns,
and fragmentation of habitat. i i� Many of these threats are likely to result from or be eXacerbated
by the Complete 540 project.11s
The USFWS repeatedly warned NCDOT of its concerns with the project's impacts to the
endangered Dwarf wedgemussel. In fact, as NCDOT was selecting its preferred alternative, the
Service stated that it "does have an issue of concern, as we have previously stated multiple times,
with the overall project. The likely adverse effects on the Dwarf wedgemussel are a serious
concern," and the concerns persisted with the selection of DSA 2 as the preferred alternative.119
A later e-mail in this same chain warned that "it is still within the realm of possibility that
USFWS could issue a Jeopardy Biological Opinion."120
Indeed, the USFWS's comments emphasized that the route ultimately selected by
NCDOT as the preferred alternative is "very problematic" due to its "great potential to adversely
affect the DWM since it crosses Swift Creek, tributaries to Swift Creek, and a significant portion
of the watershed all downstream of Lake Benson."i�i The comments also highlight that the
interchanges with I-40 and the US 70 Bypass are "at a particularly unfavorable location for the
DWM."i�� The USFWS also stated that erosion and siltation from construction of the Complete
"s Dwarf Wedgemusse12007 Status Review 11. Attachment 15.
"� Yellow Lance Species Status Assessment Report (2017), at 42. Attachment 19.
"' USFWS, Fish and Wildlife Service proposes threatened status for declining mussel (Oct. 10, 2018)
https://www. fws. gov/southeast/news/2018/ 10/fish-and-wildlife-service-proposes-threatened-status-for-declining-
musseU.
118 Biological Assessment 32-33 (2017).
"y E-mail from Gary Jordan, USFWS to Kiersten Bass, HNTB (Feb. 22, 2016 2:23 PM). Attachment 20.
120 E-mail from Gary Jordan, USFWS to Kiersten Bass, HNTB (Feb. 22, 2016 4:01 PM). Attachment 21.
��� Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 3. Attachment 16.
izz Id.
31

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540 project, as well as indirect effects from water quality degradation due to induced growth
would negatively impact the Dwarf wedgemussel.123
Mussel species are particularly sensitive to even small changes in water quality, as
recognized by the BA, which notes "early life stages of freshwater mussels are among the most
sensitive aquatic organisms to various inorganic toxicants such as copper,"124 and even
"[s]ediment accumulations of less than 25 mm (one inch) have been shown to cause high
mortality in most mussel species."'�s Sedimentation from projects can have far-reaching effects
on downstream habitats—as noted in the BA, "[i]n 1997, a large plume of sediment in the Neuse
River near New Bern was traced to a construction site along Crabtree Creek in Raleigh, over 180
miles upstream."126 A bridge project in Massachusetts devastated a Dwarf wedgemussel
population due to accelerated sedimentation and erosion.i�� Unsuitable flow, or drought
conditions, is a top threat to Dwarf wedgemussels and Yellow Lance.128 The BA even states that
"sufficient stormwater controls accompanying future development activities in any given
watershed are essential for conservation of sensitive aquatic species such as DWM and Yellow
Lance."129
Because of mussels' sensitivities, roadway runoff may be one of the most concerning
aspects of the Complete 540 project. The BO documents the harmful pollutants contained in
highway runoff, including heavy metals, sediment, pesticides, inorganic salts, nutrients, and
petroleum hydrocarbons—which can prove lethal to mussels, shorten mussel lifespans, and
impact mussel health.130 Significantly, the Complete 540 project would cause "localized
increased exposure to roadway runoff ' for the Dwarf wedgemussel and Yellow Lance
populations, "originating from 77 crossings draining to occupied habitat along the 540
alignment."131 The BA also predicts increased runoff from the existing roadway network "due to
induced increases in traffic volumes" as a result of the project.132 The BO dismissed this
important indirect impact, implausibly reasoning that the new road would draw traffic away from
other existing roadways within the Action Area and therefore reduce runoff into Swift Creek.133
izs Id.
124 Biological Assessment 23 (2017).
��s Id. at 23.
126Id. at 34.
'�' Id. at 23
128Id. at 30
'�y Id. at 28
i3o Biological Opinion at 9.
' 31 Id. at 14.
132 Biological Assessment 40.
i33 Biological Opinion at 14.
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Page 33
This assertion is completely baseless, and in fact directly controverted by NCDOT's Quantitative
ICE Report, which demonstrates that congestion on roads in the study area would actually
increase with the construction of a toll road. The runoff from a massive toll-highway into known
mussel-occupied habitat from a startling 77 crossings, in addition to induced traffic on existing
roads, will almost certainly directly harm existing Dwarf wedgemussel, Yellow Lance, and
Atlantic Pigtoe as well as impair the chances of future individual mussels to persist in what will
be severely degraded habitat. These roadway runoff impacts alone would jeopardize the
continued existence of these mussel species.
Both the Dwarf wedgemussel and Yellow Lance populations in Swift Creek are also
particularly susceptible to being wiped out by a single catastrophic event given their low
numbers. As a high-speed facility that would likely serve much commercial trucking traffic,
Complete 540 poses a high risk of toXic spills that would be devastating to the mussel
populations in Swift Creek.134 The BA states that a toxic spill "event is likely to occur during
the lifetime of the facility."135 The BO obscures this reality, stating that "over time there is a
potential for a traffic accident involving toxic chemicals to occur."136 While NCDOT proposes to
include 1-2 hazardous spill basins within the vicinity of the toll highway's crossing of Complete
540, the BO fails to evaluate the efficacy of hazardous spill basins and to document what level of
risk would persist with the proposed hazardous spill basins. Additionally, while acknowledging
that "it is not possible to accurately predict when or where toxic spills may occur" the BO fails to
discuss what would happen if a hazardous spill occurred outside of the vicinity of the 1-2
hazardous spill basins.137 The BO also lacks detail about how these basins would be installed,
including whether additional wetlands would be destroyed in order to create these basins.
The crossings of at least three streams within a quarter-mile of known mussel-occupied
habitat will require fill of stream channels, yet the BO fails to account for the likely impacts to
water quality—such as water flow and sedimentation—that will almost certainly result from
filling these streams. Instead, it simply asserts that "assuming proper installation of these erosion
control measures and full implementation of all conservations measures, the probability of
effects from siltation leading to mortality is low."138 One of the identified stream crossings will
result in a significant 443 liner feet of permanent iill in a stream that is less than a tenth of a mile
'34 Biological Assessment at 49 ("[S]uch an event is likely to occur in the lifetime of the facility.").
i3s Id. at 49.
136 Biological Opinion at 14.
�3' Id.
138Id. at 13.
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Page 34
away from known mussel-occupied habitat.139 While the BA concludes that "[t]he permanent
and temporary st[r]eam impacts associated with the construction of Complete 540 may have
long-lived effects on the DWM and Yellow Lance's ability to colonize these areas in the
future,"140 the BO, glossing over these risks, anticipates only minor impacts.14i
The Swift Creek crossing is particularly concerning given its proXimity to occupied
mussel habitat. While the BO states that no permanent or temporary structures will be placed
within Swift Creek, structures will be placed on the banks of the stream. An NCDOT engineer
cautioned against making any promises about bank stability impacts as a result of these
structures, noting "[t]here could be unforeseen bank failure during installation of drilled shafts
nearby (i.e. 10 feet) the top of the bank," and "extreme weather events could possibly overtop
erosion control devices at the bridge crossing resulting in loss of sediment into Swift Creek."142
The BO intentionally obscures the likelihood of areas within the Swift and Middle Creek
watersheds being used for "staging, storing, refueling, borrow pit, or spoil areas," all of which
are likely to negatively impact Dwarf wedgemussel and Yellow Lance by altering water flow,
eXacerbating erosion, and increasing possible runoff and corresponding pollution.143 Instead, the
BO states that the locations of these areas have not yet been selected. The BO makes no
commitments about avoiding these impacts—rather than prohibiting the construction activities
within a specific proximity of Swift Creek, NCDOT has merely agreed to "strongly discourage
the contractor" from conducting the activities within .25 miles of Swift Creek.144 No similar
limits for streams other than Swift Creek are mentioned. Indeed, an e-mail between NCDOT and
a consultant reveals that NCDOT pushed to water down the consultant's language about the
borrow and fill sites and limit commitments about locating these sites.145 In light of these weak
commitments, the conclusion in the BO that the adverse effects to the Dwarf Wedgmussel from
use of borrow/waste sites, staging areas, equipment storage areas, and refueling areas are
"eXtremely unlikely to occur (discountable)," is unsupported.
Induced growth and traf�c from building Complete 540 would exacerbate the harmful
effects of all of the above-discussed threats by increasing impervious surface and in turn
13y Id. at 13.
i4o Biological Assessment at 47.
14� Biological Opinion at 13.
142 E-mail from Christopher Murray, NCDOT, to Kiersten Bass, HNTB (Aug. 16, 2017, 7:47 AM). Attachment 22.
i43 Biological Opinion at 19.
i44 Id. at 19.
145 E-mail from Christopher Murray, NCDOT, to Kiersten Bass, HNTB (Aug. 16, 2017, 7:47 AM). Attachment 22.
34

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stormwater runoff, increasing roadway runoff and corresponding pollutants,146 and increasing the
chance of a catastrophic hazardous spill by the simple virtue that there will be more traffic and
more people within the area. As predicted by USFWS: "indirect habitat loss is eXpected due to
secondary development induced by the new road facility," and "[i]ncreased impervious surface
and storm water runoff from additional development would likely further degrade the water
quality of Swift Creek and its tributaries."147 In fact, USFWS "believes that indirect effects
from road-induced development are the greater concern," to Dwarf wedgemussels.148 The
USFWS also believes "cumulative habitat fragmentation effects will occur." 149
As acknowledged in the BO, increased impervious surfaces negatively impact water
quality by changing stream flow, water temperatures, total suspended sediment, and pollutant
loadings.iso The BA documents the fact that approXimately 11% of the land area within Wake
County consists of impervious surfaces, well beyond the recommendation of NCWRC to limit
impervious surfaces to 6% of a watershed to protect aquatic species.isi Similarly, the portion of
Johnston County within the Swift Creek Watershed that consists of impervious surfaces is
approximately 8.6%, again above the NCWRC recommendation.'s� Complete 540 will only
worsen these ratios of impervious surfaces—both directly from the interjection of 28 miles of
six-lane highway as impervious surface, and indirectly from the land use changes and induced
development. Nevertheless, the BO applies NCDOT's flawed induced growth analysis –
discussed eXtensively above – to conclude that there will be only a minimal increase to
impervious surface percentages in the studied watershed.is3
Given the placement of one interchange directly next to Swift Creek, the cumulative
effects of adding additional impervious surface to the Swift Creek Watershed could be
devastating to the mussel populations. Despite acknowledging these possible impacts, the BO
14� Indirect and Cumularive Effects Memorandum (Quanritarive ICE Assessment Memo #4) (Nov. 2017), at vi ("[I]t
is logical to expect more urban land use changes and larger increases in impervious area under the 2040 Build
scenario in this watershed.").
147 See, e.g., Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 3,
Attachment 16; see also Dwarf Wedgemusse12007 Status Review, at 13 ("Development of adjacent uplands
continues to be a significant and pervasive threat to southern populations."), Attachment 15.
148Id. at 1, 4.
14y Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 1. Attachment 16.
iso Biological Opinion at 11.
15� Biological Assessment at 27.
isz Id. at 27.
is3 Biological Opinion at 16.
35

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Page 36
insists that any impact on the Swift Creek Dwarf wedgemussel population's liability will be
offset by NCDOT's commitment to fund a propagation facility. is4
B. Insufficient information impedes full review of the impacts to endangered
and threatened mussels
Despite significant evidence that the proposed project will devastate endangered and
threatened species, the BO issued by USFWS determines that the project is not likely to
jeopardize the continued eXistence of the Dwarf wedgemussel and Yellow Lance. The BO, like
the BA before it, failed to adequately document the impacts of the Complete 540 project on
endangered and threatened species. The BO's section dedicated to evaluating the specific effects
of the proposed Complete 540 highway on mussels glosses over the actual likely effects of the
project and instead focuses on mitigation measures to reduce those unspecified likely effects.
Often, the BO clearly identifies detrimental effects of activities associated with the project, but
concludes, with no support, that the risks to endangered and threatened mussels are unlikely or
minimaL The BO also makes statements about the difficulty of predicting certain activities or
impacts, despite having clearly identified these risks in preceding sections. The Corps cannot
rely on this faulty BO to access the project's impacts on endangered and threatened mussels and
make the determinations necessary to satisfy its ESA responsibilities.
For example, the BO acknowledges that that sedimentation and erosion from construction
is a serious threat to the Dwarf wedgemussel and Yellow Lance.iss It concludes that "except in
the most extreme and rare circumstances" NCDOT's erosion control measures will be sufficient
to offset these risks to the Dwarf wedgemussel. However, it is unclear how USFWS reached this
conclusion, given its admission, in the very same paragraph, that "given the small size and
cryptic nature of DWM, any effects would be difficult to detect and measure."156 The fact that
the Dwarf wedgemussel is so difficult to detect and measure underscores the need for careful
study of the impacts construction would have on its well-being. Instead, USFWS uses this
reality as an eXcuse to gloss over the likely effects of the project.
The BO also acknowledges that construction associated with the project's numerous
stream crossings could harm or harass host fish that are critical to Dwarf wedgemussel and
Yellow Lance reproduction.157 In their larval form, mussels are parasitic and must live off of
particular fish species. The BO identifies a myriad of ways the project could impact these fish:
' S4 Id. at 21.
iss Id. at 13-14.
156Id. at 14.
157 Id. at 13.
36

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Page 37
causeway construction could strand individual fish, congregate them into ponded areas where
temperature and dissolved oxygen may affects their health and ability to survive; and underwater
sound waves due to pile driving and causeway placement could cause tissue damage to fish.
Instead of addressing these risks, the BO instead concludes that due to host fish's "high mobility
under normal conditions, the probability of mortality. .. occurring from these potential effects is
low."158 This reasoning is, of course, flawed, because the fish in question will not be functioning
"under normal conditions" while construction is occurring. Instead of thoughtlessly dismissing
these impacts, NCDOT should have documented the current population numbers or range of
known Dwarf wedgemussel and Yellow Lance host fish, evaluated their potential mortality rates,
and reached an educated conclusion about the impacts construction would have on Dwarf
wedgemussel reproductive potential. The lack of this kind of information renders the BO
completely insufficient to satisfy the Corps' ESA responsibilities. See Sierra Club v. United
States Dep't of the Interior, 899 F.3d 260, 270 (4th Cir. 2018); Am. Rivers v. Fed. Energy
Re u� latory Comm'n, 895 F.3d 32, 46 (D.C. Cir. 2018).
Furthermore, the BO fails to discuss how threats to mussels—i.e. toxic contaminants,
stormwater runoff, thermal pollution, roadway runoff, habitat destruction—would impact these
fish host species. The BO also often limits its considerations of impacts to Dwarf wedgemussel
and Yellow Lance to streams where they have been known to occur or recently found, even
though adjacent streams are still within the species' respective ranges and well within the area
likely to experience direct and indirect effects from Complete 540. These glaring shortcomings
of the BO must be rectified in order for the Corps to evaluate the full extent of impacts to the
Dwarf wedgemussel and Yellow Lance as required under the ESA.
C. A propagation facility cannot "offset" impacts to the endangered mussels or
comply with the ESA
The propagation facility is underfunded
NCDOT's Permit Application imprudently relies on the success of an untested and
underfunded propagation plan to make up for the impacts the project will have on the Dwarf
wedgemussel and Yellow Lance. NCDOT is poised to provide a mere $5 million to retrofit a
facility for propagation purposes and to help fund the facility for just five years.159 Permit
Application and accompanying documents lack details about what would happen to the facility
after those five years' worth of funds dry up.
158 Biological Opinion at 13.
159Id. at 5.
37

November 22, 2018
Page 3 8
While the ESA permits agencies to incorporate conservation measures into a project in
order to offset possible impacts, to satisfy the Section 7 requirement to not jeopardize the
continued existence of the species in the wild, the agency must demonstrate that the measures are
"reasonably specific, certain to occur, and capable of implementation; they must be subject to
deadlines or otherwise—enforceable obligations; and most important, they must address the
threats to the species in a way that satisfies the jeopardy and adverse modification standards."
Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1152 (D. Ariz. 2002) (citing
Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987)). "[E]ven a sincere general commitment" to
conservation measures is insufficient under the ESA "absent specific and binding plans." Nat'1
Wildlife Fed'n v. Nat'1 Marine Fisheries Serv., 524 F.3d 917, 935-36 (9th Cir. 2008).
As it stands, NCDOT's commitment to fund the propagation facility is insufficient to
address the threats the toll road would cause to rare mussel species. Originally, NCDOT
anticipated that the propagation facility — solely for the Dwarf wedgemussel — would cost over
$7 million.160 By comparison, a similar facility in Virginia cost $2.3 million to construct and
$9.5 million to operate for 20 years. 16' The permit application commits NCDOT to merely $2
million in funding the construction to retrofit and upgrade an old facility, and $3 million to fund
NCSU's proposal for operating and managing the facility. 162 NCDOT had not increased its
funding levels in response to the listing of the Yellow Lance as threatened. It is unclear how $5
million of funding will be sufficient to propagate Dwarf wedgemussel and Yellow Lance when
that same level of funding was likely inadequate to propagate even one species. Furthermore,
NCDOT has failed to even consider the cost of propagating Atlantic Pigtoe, which USFWS
recently proposed for listing as threatened. NCDOT's funding commitment is insufficient to
ensure conservation of even one endangered mussel species, much less three.
2. NCDOT inappropriately disclaims any responsibility for the
propagation program's success
NCDOT has inappropriately distanced itself from the propagation efforts. NCDOT
eXplicitly has limited its involvement as much as possible. In a February 27, 2018 interagency
agreement between NCDOT and NCWRC, NCDOT agreed only to contribute a maximum of $5
million for construction of a mussel propagation and its operation during its first five years, and
the agreement explicitly provides that "NCDOT is not responsible for the construction,
160 See, e.g., Attachment to e-mail from Donnie Brew, NCDOT, to Jennifer Harris, et aL (Feb. 5, 2015 2:50 PM).
Attachment 23.
16� E-mail from Sarah McRae to Donnie Brew, NCDOT, et aL (Apr. 21, 2015 11:38 AM). Attachment 24.
162 Biological Opinion 5-6.
:

November 22, 2018
Page 39
management, operations or success of the Program, [Yates Mill Aquatic Conservation Center] or
its propagation goals."163 The Permit Application similarly states that "NCDOT is not
responsible for the construction, management, or success of the facility or its propagation
goals."164 An e-mail from an NCDOT project manager shows NCDOT's desire to simply "cut a
check ... after we agree on a figure" in an effort to deal with the mussel concerns.165 Strikingly,
the NCWRC has also disclaimed any responsibility for the program's propagation goals.
NCDOT and NCWRC's Interagency Agreement provides that "NCWRC is not responsible for.. .
achieving the Program's propagation goals."166 With both NCDOT and NCWRC disclaiming
responsibility for the propagation program's success, it is unclear who, if anyone is responsible
for ensuring that the endangered mussels are successfully propagated let alone reintroduced.
The Corps cannot rely on the propagation facility as a means of satisfying its ESA
obligations when NCDOT has placed so much reliance on an outside entity's underfunded and
unreliable propagation plan. See Oregon Nat. Desert Ass'n v. Tidwell, 716 F. Supp. 2d 982,
1003 (D. Or. 2010) (citing Nat'1 Wildlife Fed'n v. NMFS, 254 F. Supp.2d 1196, 1213 (D. Or.
2003)) ("The NMFS cannot rely on a third party to implement conservation measures that are not
reasonably certain to occur."); Ctr. for Bio. Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153
(rejecting suggested conservation measure where agency had "no authority ... over the
implementation of this mitigation measure.").
3. NCDOT has failed to demonstrate that its underfunded program is
capable of successfully propagating endangered mussels
NCDOT has failed to demonstrate that its propagation plan is "capable of
implementation." Ctr. For Biological Diversity v. Rumsfeld, 198 Supp. 2d at 1152. As detailed
in the Conservation Group's comments on the DEIS, the process of setting up a propagation plan
and facility is time-consuming and should have started years ago;167 it can take years simply to
collect broodstock, let alone raise them to an age suitable for release. An early scope of work
document for consultants working with NCDOT reinforces the lengthy process of establishing a
propagation facility, successfully propagating the mussels, and releasing the mussels. The scope
163 Interagency Agreement 3(Feb. 27, 2018) (emphasis added).
i64 Biological Opinion 6.
165 E-mail from Brian F. Yamamoto, NCDOT, to Jennifer Harris, HNTB, and Kiersten R Bass, HNTB (Nov. 2,
2016). Attachment 25.
' 66 Id. at 6.
167 Meeting Summary re: Dwarf Wedgemussel Coordination for Phase 2 study and Review of USFWS
Recommendarions (July 18, 2014), at 2(referring to the need to invesrigate population augmentation feasibility as "a
time sensitive recommendation that needs immediate action."), at 2. Attachment 26.
39

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of work anticipated that collection efforts would begin in 2014, with ongoing annual collection
efforts for seven years from 2016 to 2023, and annual releases of mussels for 10 years.168 The
scope of work also estimated that constructing the propagation facility would take at least two
years' time.169 The North Carolina Dwarf wedgemussel Work Group determined that three-year
old Dwarf wedgemussels are best suited for release, and a minimum of ten-years' of releases
would need to occur in order to "potentially achieve viability in Swift Creek."170 In other words,
a successful propagation plan will require at least 13 years from when sufficient broodstock is
collected in order to potentially achieve viability 8 years more than what NCDOT has
committed to fund.
NSCU researchers acknowledge that the success of the propagation program is by no
means guaranteed, admitting that "propagation itself is somewhat of a research project since not
much is known about the husbandry of this mussel."i�i In fact, past efforts by NCSU researchers
to propagate Dwarf wedgemussels failed to produce viable juveniles. Between 2009 and 2011,
researchers at NCSU—partially funded by NCDOT—conducted two trials attempting to breed
Dwarf wedgemussels in captivity. These trials were largely unsuccessful: in 2009 all juveniles
were dead after one year and in 2010 there was 100% mortality after two months. i��
Researchers stated that propagation of Dwarf wedgemussel is "very difficult relative to most
other species we have propagated in NC" and, further, "additional studies are required to
determine the best diet and culture conditions for this species."173 Researchers noted several
additional details: finding adults in the wild is time-consuming and difficult; females become
gravid in winter when sampling is most challenging; and the small size of each Dwarf
wedgemussel makes it difficult to extract a large number of glochidia without damaging the
mussel.174 Researchers also expressed concerns about "host efficacy and the sensitivity and
rarity" of the darter species that are necessary partners in mussel development. i�s
168 Scope of Work, Dwarf Wedgemussel Viability Study — Phase 2: Complete 540 — Triangle Expressway 2-3
(2014). Attachment 27.
i69 Id. Attachment 27.
10 Dwarf Wedgemussel Viability Study — Phase 2 at 105 (2016) (emphasis added).
"� E-mail from Harry Daniels, NCSU, to Kathryn Meurs, NCSU (Nov. 24, 2015 3:30 PM). Attachment 28; see E-
mail from Greg Cope, NCSU, to Chris Eads, NCSU, Jay Levine, NCSU (Nov. 18, 2016 10:15 AM). Attachment 29
(stating that researchers need to "figure out how to work on some of the propagation refinement that will be needed
for the species.").
"� Levine, Jay and Arthur Bogan, NCDOT, FHWY/NG2009-16, Propagation and Culture of Federally Listed
Freshwater Mussel Species 22-23 (2011). Attachment 30.
13 Id. at 23-24. Attachment 30.
174Id. at 23. Attachment 30.
"s E-mail from Greg Cope, NCSU, to Chris Eads, NCSU, Jay Levine, NCSU (Jul. 22, 2016 4:28 PM). Attachment
31.

November 22, 2018
Page 41
NCDOT is well-aware of the challenges of successful propagation efforts, particularly
those with Dwarf wedgemussels in the Swift Creek Watershed. With the Clayton Bypass
project, NCDOT funded Dwarf wedgemussel propagation efforts, but could not find brood stock
from Swift Creek to start the propagation attempts.176 Instead, broodstock from other locations
were used to propagate 500 Dwarf wedgemussels, but the mussels were never released due to
concern of cross-contamination between different populations.'�� A meeting summary document
from 2014 raises the same concerns in the context of the Complete 540 project:
It appears that augmentation would require DWM from Swift Creek to start the
propagation process. There is some concern that there may not be sufficient
gravid DWM in Swift Creek that can be discovered and collected to initiate and
maintain a propagation and augmentation program.178
Given that few Dwarf wedgemussels have been located in Swift Creek in recent years, it
seems unlikely that sufficient broodstock could be collected—particularly without harming the
remaining wild individuals' chances for survival in Swift Creek. Additionally, any propagation
effort must be able to collect a sufficient number of broodstock to ensure adequate genetic
diversity, and in turn, viability, in resulting offspring.
Despite the documented difficulty of Dwarf wedgemussel propagation specific to Swift
Creek, the agencies here have failed to consider how efforts related to the Complete 540 project
will overcome these insurmountable hurdles.
At most, possibly three Dwarf wedgemussels have been collected for propagation efforts
to date. According to the Dwarf wedgemussel Viability Study – Phase 2, three individual Dwarf
wedgemussels were collected in 2015 and transferred to a North Carolina Wildlife Resources
Commission fish hatchery for propagation purposes.179 No further details are provided—there is
no indication whether the three specimens were male, female, or gravid: key details for purposes
of propagation. Three male Dwarf wedgemussels would do little to further propagation efforts.
Similarly, three individuals is an insufficient number to ensure adequate genetic diversity in any
possible progeny. NCDOT does not even verify whether the three Dwarf wedgemussels
survived the transfer to the hatchery. At the same time, nowhere does NCDOT document having
16 Dwarf Wedgemussel Viability Study — Phase 2 at 55 (2016).
"' Id.
18 NCDOT, Meeting Summary re: Dwarf Wedgemussel Coordination for Phase 2 study and Review of USFWS
Recommendations (July 18, 2014) at 2(referring to the need to investigate population augmentation feasibility as "a
rime sensitive recommendation that needs immediate action.") at 3. Attachment 26.
19 Dwarf Wedgemussel Viability Study — Phase 2 at 99 (2016).
41

November 22, 2018
Page 42
collected any Yellow Lance for propagation efforts. The BO provides no information about
whether Yellow Lance have been successfully propagated in captivity or reintroduced.
In light of these challenges to propagation efforts and the inherently time-consuming
process of a potentially successful propagation facility, NCDOT's proposal to provide only five-
years of funding is insuf�cient to even ensure the release of Dwarf wedgemussels or Yellow
Lance, let alone the viability of the Swift Creek populations after Complete 540 were built. This
tenuous mitigation plan is insufficient to satisfy the Corps' responsibilities under the ESA.
4. NCDOT has failed to demonstrate intent or ability to successfully
reintroduce propagated mussels into the wild
To the extent NCDOT may believe it can satisfy the ESA by simply growing mussels in
captivity, regardless of whether the mussels can be released later, the ESA's mandate is clear that
the goal is recovery of the species in the wild. ESA implementing regulations specifically tie the
Section 7 jeopardy analysis to "survival and recovery of a listed species in the wild." 50 C.F.R. §
402.02 (emphasis added). The ESA's statement of purpose underscores the point of the Act in
conserving and recovering species in the wild by emphasizing protection of wild ecosystems:
"The purposes of this chapter are to provide a means whereby the ecosystems upon which
endangered species and threatened species may be conserved ...." 16 U.S.C. § 1531(b).
NCDOT's Interagency Agreement with NCWRC does not contain any commitment to
release endangered mussels into the wild. Instead, the agreement is characterized as establishing
a program "to support the captive breeding of endangered aquatic species."180 Captive breeding,
absent concrete plans for release and recovery in the wild, cannot satisfy the ESA.
Moreover, even if NCDOT could demonstrate that its funding proposal were sufficient to
construct and operate a propagation facility for a sufficient amount of time, it has not
demonstrated that Dwarf wedgemussels and Yellow Lance from Swift Creek could be
successfully propagated and reintroduced into the wild. The BO even admits that "[t]o date there
have not been any DWM population augmentation efforts using captive propagation in North
Carolina."isi
NCDOT has failed to show that reintroduced mussels would have suitable habitat to
foster survival post-construction of Complete 540. Growing mussels in captivity would be a
180 Interagency Agreement between North Carolina Wake County, North Carolina Dep't of Transportation, and
North Carolina Wildlife Resource Commission 1(Mar. 9, 2018).
��� Biological Opinion at 18.
42

November 22, 2018
Page 43
futile eXercise if the habitat available is severely degraded and not conducive to survival. As
stated in an email from an NCSU researcher, it doesn't make any sense to deplete reproduction
resources "just to throw mussels into a potentially degrading stream in Swift Creek."ig� While
Swift Creek Watershed has already experienced some water quality concerns and habitat
degradation, the construction of the Complete 540 toll highway would only stand to worsen
those impacts, as discussed above.
The scientific community views captive breeding as a"last resort in species recovery and
not a prophylactic or long-term solution" that must be carried out in conjunction with habitat
restoration to save an endangered species from extinction.183 It is highly improbable that a
captive breeding program could save a species from extinction when instituted in conjunction
with habitat destr�uction. Notably, the list of threats to mussels in the agency's own BO almost
eXclusively pertain to habitat quality. i 84 Similarly, the most recent status review for the Dwarf
wedgemussel identifies impoundments, pollution, riverbank alteration, and siltation as the main
threats to the species185—all of which pertain to habitat quality. A recent scientific study of
Dwarf wedgemussels identifies unsuitable physical habitat and low water quality because of
contaminants as two of three of the top threats to Dwarf wedgemussels in Swift Creek and
Middle Creek.186
As noted in one of NCDOT's own studies incorporated into the FEIS, the North Carolina
Dwarf wedgemussel Work Group "identified `unsuitable physical habitat' as the most important
threat to the Swift Creek population,"'g� and "the potential for this species to persist into the
future in Swift Creek is highly dependent on habitat viability."188 This same study expresses
doubt about the adequacy of propagation efforts in the face of habitat degradation: "if underlying
conditions (habitat degradation) are not sufficient to sustain the population, the release of
propagated individuals may not enhance viability even if the Allee effect is operating."189 This
182 E-mail from Chris Eads, NCSU, to Sarah McRae, USFWS (Jan. 16, 2015 10:51 AM). Attachment 32.
183 Snyder, et al., Limitations of Captive Breeding in Endangered Species Recovery, 10 Co1vSExvATlolv Blor.oGY
338, 338 (1996), Attachment 33; see also Thomas, et al., Captive Breeding of the Endangered Freshwater Pearl
Mussel Margaritifera Margaritifera, 12 Etv�AlvGExE� SPEC�S RES. 1, 7(2010) ("[C]aprive breeding cannot be a
substitute for habitat restoration."). Attachment 34.
184 Biological Opinion at 9.
�gs Dwarf Wedgemusse12007 Status Review 11. Attachment 15.
186 Smith, et al., Developing a conservation strategy to maximize persistence of an endangered freshwater mussel
species while considering management effectiveness and cost, FRESHwATER SCI., Dec. 2015, at tbl. 1. Attacbment
35.
'g' Dwarf Wedgemussel Viability Study — Phase 2 at 88 (2016).
188 Id. at 96. The study also states that the "chance of persistence" of Dwarf wedgemussels in Swift Creek "is very
tenuous, especially without active management and increased habitat protection." Id. at 102.
� 89 Id. at 104.
43

November 22, 2018
Page 44
same report warns that "a propagation effort in and of itself will not maintain population
viability," and "[r]ather, physical habitat and water quality will also need to be sufficient to
maintain population viability."190
Propagation will not offset or overcome these harms to mussel habitat. In other words,
NCDOT cannot avoid jeopardizing the continued existence of the Dwarf wedgemussel or the
Yellow Lance by funding—for a limited time—a propagation facility. Moreover, the Corps
cannot rely on this unworkable and underfunded propagation plan to satisfy its ESA obligations.
Given the limited scope of NCDOT's proposed funding of a propagation facility and the lack of
commitment to ensure that the habitat in Swift Creek watershed will be hospitable for mussels
after the toll road is constructed, the Corps cannot satisfy its ESA obligations by relying on
NCDOT's underfunded plan to pay for a third party to grow mussels in captivity for a short
period of time
D. The Incidental Take Statement Issued by the USFWS is Arbitrary and
Capricious
As the Conservation Groups have noted in legal pleadings to the United States District
Court for the Eastern District of North Carolina, the Incidental Take Statement ("ITS") issued by
USFWS for the two species of mussels is arbitrary and capricious, contrary to law and places the
two species in danger of jeopardy. Under the ESA, USFWS must evaluate whether the action
may cause take of individual specimens of a protected species. See 16 U.S.C. § 1536(b)(4)(C)(i).
When take is "reasonably certain to occur," FWS must "provide with the biological opinion a
statement concerning incidental take." 50 C.F.R. § 402.14(g)(7), (i)(1); see 16 U.S.C. §
1539(a)(1)(B).
This incidental take statement must specify "the impact, i.e., the amount or eXtent, of
such incidental taking on the species" and set "terms and conditions" on the project. 50 C.F.R. §
402.14(i)(1)(i), (iv); 16 U.S.C. § 1536(b)(4)(C)(i). A properly issued ITS shields a project from
liability even if it takes some individuals of a protected species, but only if the take stays under
quantitative limits set by the ITS. See Arizona Cattle Growers' Ass'n, 273 F.3d at 1239 (citing
16 U.S.C. § 1536(0)) (describing an ITS as a safe harbor provision). In this way, takings that
comply with limits set by an ITS are "not a prohibited taking under the Act" and not subject to
penalties. 50 C.F.R. § 402.14(i)(5); 16 U.S.C. § 1536(0)(2).
190 Id. at 105.

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But "[i]f during the course of the action the amount or extent of incidental taking ... is
eXceeded, the Federal agency must reinitiate consultation immediately." 50 C.F.R. § 402.14(i)(4)
(emphasis added). "When reinitiation of consultation is required, the original biological opinion
loses its validity, as does its accompanying incidental take statement, which then no longer
shields the action agency from penalties for takings." Ctr. for Biological Diversitv v. U.S.
Bureau of Land M_�, 698 F.3d 1101, 1108 (9th Cir. 2012),19i
In practice, the level of take authorized in the ITS functions as "a `trigger' that, when
reached, results in an unacceptable level of incidental take, invalidating the safe harbor
provision, and requiring the parties to re-initiate consultation." Arizona Cattle Growers' Ass'n,
273 F.3d at 1249. The ITS incentivizes federal agencies and project applicants to ensure take
stays below the trigger, in order maintain their safe harbor from civil and criminal penalties. It
"ensure[s] both that the agency really does ensure against jeopardy and that any take that occurs
i[sJ minimized." Defs. of Wildlife v. U.S. Dep't of NavX, 733 F.3d 1106, 1125 (l lth Cir. 2013)
(emphasis added) (describing incidental take statements); see also 80 Fed. Reg. 26,835 (May 11,
2015) (amending ITS regulations) ("The primary purpose of an incidental take statement is ... to
eXempt the incidental take of listed species ... and impose conditions on that eXemption
intended to minimize the impacts of such take for the species' benefit.")
A clearly defined limit on take is an essential part of an ITS. Whenever possible, the
trigger "should be a specific number" of individuals that may be taken by the project. Arizona
Cattle Growers' Ass'n, 273 F.3d at 1249; Ore�on Nat. Res. Council v. Allen, 476 F.3d 1031,
1037 (9th Cir. 2007) ("Congress has clearly declared a preference for expressing take in
numerical form."); Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1275
(l lth Cir. 2009) ("[S]pecific population data is required unless it is impractical.").192
USFWS may use "a surrogate" trigger only if it is "not practical" to define a numerical
limit, and only in compliance with additional requirements. 50 C.F.R. § 402.14(i)(1)(i). FWS
"must explain why it was impracticable to express a numerical measure of take." Allen, 476 F.3d
at 1037; Arizona Cattle Growers' Ass'n, 273 F.3d at 1250 ("In the absence of a specific
numerical value, however, the Fish and Wildlife Service must establish that no such numerical
value could be practically obtained."). When an "Incidental Take Statement ... contains no
numerical cap on take and fails to explain why it does not, it violates the ESA." Allen, 476 F.3d
19' See FWS, Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference
Activities under Section 7 of the Endangered Species Act, 4-23 (1998) (hereafter "ESA Handbook").
192 ESA Handbook, 4-50 (expressing preference for a"specific number").
45

November 22, 2018
Page 46
at 1037; see also Ctr. for Biological Diversity v. U.S. Bureau of Land M�, 422 F.Supp.2d
1115, 1137-38 (N.D. Cal. 2006) (FWS failed to establish that numerical limit on take was
impractical merely because Service simply had not estimated population numbers); Natural Res.
De£ Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1184-85 (N.D. Cal. 2003) (rejecting ITS that
failed to quantify numerically the authorized incidental take of some twenty endangered species
and offered no evidence that it was impractical to obtain such numerical estimates).
If a numericallimit is not practical, FWS must identify a surrogate trigger that functions
like a numerical limit. Put simply, "[t]he chosen surrogate ... must be able to perform the
functions of a numerical limitation." Allen, 476 F.3d at 1038. The surrogate "cannot be so
indeterminate as to prevent the Take Statement from contributing to the monitoring of incidental
take by eliminating its trigger function." Id. at 1041. Determining whether the trigger has been
exceeded cannot be left in the "unfettered discretion of the Fish and Wildlife Service, leaving no
method by which the applicant or the action agency can gauge their performance." Arizona
Cattle Growers' Ass'n, 273 F.3d at 1250. Once an TTS issues, the "Federal agency ... must
report the progress of the action and its impactl3 on the species to [FWS] as specified in the
incidental take statement" "[i]n order to monitor the impacts of incidental take." 50 C.F.R. §
402.14(i)(3). An ITS that sets limits that cannot be monitored is arbitrary and capricious. See
Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010), Allen, 476 F.3d at 1041
(finding arbitrary and capricious an ITS allowing take of all individuals in project area "because
it prevents the action agencies from fulfilling the monitoring function [ofJ the ESA").
The ITS for Complete 540 authorizes take of all Dwarf wedgemussels harassed or
harmed within 53 miles of potentially occupied stream habitat, including 21 miles of Swift
Creek, approximately 26 miles of Middle Creek, approXimately 1 mile of White Oak Creek, and
approximately 5 miles of Little Creek, BO at 28, and all yellow lance harassed or harmed within
approximately 47 miles of potentially occupied stream habitat, including 21 miles of Swift Creek
and approXimately 26 miles of Middle Creek, BO at 29. The Incidental Take Statement also
states that USFWS's "anticipate potential take in the form of harm would likely be limited to the
area at and immediately downstream of the NC 540 crossing of Swift Creek," but does not limit
permissible take in the form of harm to this area.
By authorizing "incidental" take equivalent to all of the potential or known habitat of
endangered dwarf wedgemussel and threatened yellow lance in the Swift Creek Watershed, the
Incidental Take Statement would effectively allow the Transportation Agencies to take all
mussels within Swift Creek watershed, in contrast to the Biological Opinion's findings regarding
its no jeopardy conclusion.
46

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Page 47
In its ITS, USFWS claims without explanation that detecting harm or lethal take of dwarf
wedgemussel and yellow lance would be "difficult to determine" and is "likely not detectable or
measureable." The Incidental Take Statement fails to demonstrate that specifying the extent of
take in terms of number of individual protected species is impractical. Rather than specifying the
number of individual protected species anticipated to be taken incidental to the project, USFWS
uses a surrogate measure of take. In so doing, USFWS violated its legal obligations. "In this
conteXt, impracticality means that it [is] not possible to use some form of numerical population
count." Miccosukee Tribe of Indians of Fla. v. United States, 697 F. Supp. 2d 1324, 1331 (S.D.
Fla. 2010) (emphasis added). The agency cannot avoid a task it considers "difficult," in the face
of Congress' objective to safeguard protected species "whatever the cost." Tennessee Vallev
Auth., 437 U.S. at 184.
The Fourth Circuit recently emphasized this point noting that "[fJor an ITS to function as
a safe harbor, FWS must set an incidental take limit that can be monitored and enforced." Sierra
Club v. United States Dep't of the Interior, 899 F.3d 260, 270 (4th Cir. 2018). That court
recently admonished the USFWS for failure to set numerical limits for the take of 6 non-plant
species that will be affected by the Atlantic Coast Pipeline ("ACP"). There, as here, the agency
did not make the requisite showing that it would not be possible to set numerical limits. The
Court thus declared the agency's action arbitrary and capricious. Id.
The Fourth Circuit in Sierra Club also admonished USFWS for its failure to establish a
"causal link" between its surrogate measure of potentially occupied habitat and take of the
protected species by the ACP. Id. The same deficiency is present in the ITS for Complete 540.
The ITS defines the eXtent of take caused by the project as all miles of potentially occupied
habitat in the project area but does not explain the "causallink" between this surrogate measure
of potentially occupied habitat and take of the protected mussel species. See also Arizona Cattle
Growers'Ass'n, 273 F.3d at 1250.193
Moreover, the ITS fails to establish a"trigger" that would require FHWA or the Corps to
reinitiate formal consultation with USFWS if "the amount or extent of taking specified in the
incidental take statement is exceeded." 50 C.F.R. § 402.16(a). The limits set by an ITS "cannot
be so indeterminate as to prevent the Take Statement from contributing to the monitoring of
incidental take by eliminating its trigger function." Allen, 476 F.3d at 1041. Without an
193 ESA Handbook, 4-50 (requiring demonstration of a"sufficient causal link").
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enforceable trigger, FWS and FERC cannot "ensure both that the agency really does ensure
against jeopardy and that any take that occurs i[s] minimized." Defs. of Wildlife, 733 F.3d at
1125. Instead, the decision is illegally left in the "unfettered discretion of the Fish and Wildlife
Service" to determine when the undefined "small percent" threshold is crossed. Arizona Cattle
Growers' Ass'n, 273 F.3d at 1250. An ITS fails to define that threshold likewise fails "to protect
and conserve endangered and threatened species and their habitats." Nat'1 Ass'n of Home
Builders, 551 U.S. at 651.
These failures and others render the ITS for the two mussel species arbitrary and
capricious. A revised BO and ITS are necessary for the Corps to comply with its responsibilities
under the ESA.
E. Building the toll road would have severe direct, indirect, and cumulative
impacts on the Atlantic Sturgeon and its critical habitat
The Atlantic Sturgeon has been listed as endangered since 2012, and in August 2017, the
NMFS designated critical habitat for the sturgeon. See Final Rule, Designation of Critical
Habitat for the Endangered Atlantic Sturgeon, 82 Fed. Reg. 39160 (Aug. 17, 2017). This critical
habitat determination includes the Neuse River throughout Wake and Johnston Counties. The
Permit Application acknowledges that R-2829 crosses a stretch of the Neuse River designated as
Critical Habitat for Atlantic Sturgeon.194
The Final Sturgeon BA identifies a host of likely harmful impacts that could result to
Atlantic Sturgeon and its habitat due to roadway construction projects, including direct physical
loss and alteration of stream habitat, acoustic effects from construction, increased chemical and
thermal pollution from the project's construction as well as induced land changes, and temporary
or permanent changes in water flow.195 The Sturgeon BA acknowledges that Complete 540
would cause many of these impacts, including temporary and permanent placement of fill in
streams and on adjacent floodplains and consequent alteration of normal water flow patterns and
volumes.196 Complete 540 would also increase pollution from highway runoff with the 77
stream crossings along the Complete 540 route that drain into critical habitat,197 as well as due to
194 Permit Application at 5.
195 Biological Assessment of Potential Effects to the Atlantic Sturgeon 21-22 (2018).
196Id. at 25.
197 Id. at 27, 35.
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induced higher traffic volumes throughout Wake and Johnston County.198 While the Sturgeon
BA downplays the signi�cance of water quality impacts from induced growth199—suggesting a
small increase over a No-Build scenario—flaws in the NCDOT's ICE analysis and a failure to
account for impacts from induced growth mean the impacts are likely much bigger.
F. Insufficient analysis of Atlantic Sturgeon
The Sturgeon BA's sections about the potential effects of Complete 540 are much more
focused on discussing the agencies' supposed mitigation measures or alleged unknowns, rather
than actually documenting the impacts that would result from construction and operation of
Complete 540.
The Sturgeon BA's final sections about conservation measures are similarly inadequate.
For example, the Sturgeon BA claims that the Complete 540 project "is designed to not
contribute sediments, toXicants, or pollutants into receiving waters where sturgeon occur," yet
the Sturgeon BA also acknowledges that juvenile sturgeon captured downriver from the action
area were likely spawned upstream—which could include the action area. 20° Indeed, in the
publication of the final rule designating critical habitat for the Atlantic Sturgeon, NMFS
highlighted recently-documented occurrences of Atlantic Sturgeon in the Neuse River, indicating
that early and intermediate juveniles—while few in number—have regularly been found in the
Neuse River. 82 Fed. Reg. at 39221. That the project is supposedly "designed to not contribute"
harmful pollution and sedimentation also misses the point that the agency must not harm the
sturgeon or its critical habitat, and ignores the reality that sediments, toxicants, and pollutants
could flow downstream to wherever sturgeon do in fact occur. Id. at 39199. The Sturgeon BA
also fails to eXplain how it will determine where sturgeon "are known to occur," which could be
variable and differ in the future from historical occurrences with changes related to the removal
of the Milburnie Dam. Id.201
198 Id. at 31.
199 See Endangered and Threatened Species; Designation of Critical Habitat for Sturgeon, 82 Fed. Reg. 39,160, 39,
225 (Aug. 17, 2017) ("Land development and commercial and recreational activities on a river can contribute to
sediment deposition that affects water qualiry necessary for successful spawning and recruitment.").
aoo Biological Assessment of Potential Effects to the Atlantic Sturgeon 15 (2018); see also id. at 40 (recognizing that
suitable spawning habitat occurs upstream of the project and that "it cannot be definitively concluded that the
species is absent from this portion of the river.").
201 Richard Stradling, Raleigh's Milburnie Dam is gone, unleashing the Neuse River, THE NEWS AND OBSERVER
(Nov. 27, 2017), available at: https://www.ncwsobscrvcr.com/ncws/local/countics/wake-
county/artic1c186704673.htm1.
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As discussed above regarding endangered mussels, toxic and hazardous spills pose
additional threats to water quality. Importantly, "[w]ater of appropriate depth and absent
physical barriers to passage" and "water quality" are two of the physical and biological features
identified as being essential to adequate Critical Habitat for Atlantic Sturgeon. 82 Fed. Reg. at
39161. While the Sturgeon BA states that no construction would occur between August 15 and
October 31 to avoid when Atlantic Sturgeon is most likely to be present, this moratorium does
nothing to address permanent fill of channels, consequent disruptions in water flow, and altered
levels of sediment and toXic pollutants.
As for acoustic or noise impacts, the Sturgeon BA states without any justification that
"given the location of the project in a lotic river with running water (as opposed to estuaries or
slack water runs), noise effects from drilled shafts to Atlantic Sturgeon if present are anticipated
to be insignificant."202 The Sturgeon BA fails to eXplain why the effects would be less, nor to
document that the drilled shafts causing the acoustic impacts would be in locations with such
"running waters" as opposed to slower-moving streams. Additionally, as observed in the
Sturgeon BA, the drilled shafts for Complete 540 will actually be larger than the 36-inch
diameter found to be not likely to adversely affect species in a separate Biological Evaluation.203
Much like the project's BA for mussels, the Sturgeon BA fails to even attempt to
document impacts from sedimentation and erosion likely to result from construction of the
project, stating that predicting the amount of sedimentation likely to occur is difficult due to a
number of factors.204 That something is difficult to predict is not a valid reason to omit such an
analysis in a BA or NEPA documentation. See Sierra Club v. United States Dep't of the Interior,
899 F.3d 260, 270 (4th Cir. 2018)
The Sturgeon BA's discussion of effects from borrow/fill, staging and storage is similarly
lacking and conclusory—simply saying that no effects are anticipated because "these areas are
regulated by NCDOT as part of project construction and will incorporate the specific PDCs in
AppendiX C."205 Yet an earlier section of the Sturgeon BA noted that borrow/fill, staging and
storage sites outside of regulated buffers "still have the potential to affect water quality through
sedimentation, erosion, and introduction of toxic compounds into streams via stormwater
channels, ditches, and overland runoff or through losses during the hauling process."Z°6
202 Id. at 33.
zo3ld. at 32-33.
zo4 Id. at 25.
zos Id. at 33-34.
20� Id. at 26.
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The Sturgeon BA also relies on wholly insufficient survey data in reaching its
determinations about whether necessary physical or biological features of critical habitat are
present in the project action area. The Sturgeon BA's entire assessment appears premised on a
single day of qualitative sampling in November 2017.207 Even worse, this single survey appears
to have been limited to the immediate area surrounding where Complete 540 would cross the
Neuse River—no surveys were completed for tributaries or areas downriver, where effects of
increased sedimentation, toxic pollution, thermal pollution, and changes in water flow are likely
to be eXperienced as a result of the project. Moreover, as acknowledged in Appendix B to the
Sturgeon BA, the waterflow on this day was well below the 35-year mean according to a nearby
U.S. Geological Survey water gauge, and the "distance from the water surface to the top of the
respective banks (TOB) was estimated" making the Sturgeon BA's conclusions about limited
impacts to water quality and water flow even more circumspect.208 A geographically-limited
single day of sampling fails to fairly assess seasonal and other changes in physical or biological
features per the NMFS' explanation accompanying the critical habitat final rule: "As we have
discussed, these PBFs may be ephemeral or vary spatially across time. Thus, areas designated as
critical habitat are not required to have the indicated values at all times and within all parts of the
area[.]" 82 Fed. Reg. at 39219. Zo9
In sum, the Sturgeon BA's conclusion that the project "may affect, not likely to adversely
affect" critical habitat is unsupported. The information provided in the Sturgeon BA, coupled
with the inadequacies of the ICE analysis completed by the agencies, suggests that the impacts to
Atlantic Sturgeon are likely to be greater than what the Sturgeon BA predicts.
G. Adverse impacts to other species
In addition to the Dwarf wedgemussel and Yellow Lance, Swift Creek supports 11 other
rare aquatic species,210 including the Atlantic Pigtoe, which was recently proposed to be listed as
threatened under the ESA.�" USFWS is also currently studying to consider whether several
additional rare species should be proposed to be listed as endangered or threatened under the
207 Id. at 23; id. at App. B at 1.
208 Id. at App. B at 1.
20y See also id. at 39220 (explaining that "a snapshot in time" may be inadequate because the "exact location of a
habitat feature may change over time (e.g., water depth fluctuates seasonally, as well as annually, and even hard
substrate may shift position).").
210 See DWM Viability Study: Phase 1(Mar. 2014) at Table 1. Rare Aquatic Species in Swift Creek.
�' � Proposed Rule and 12-Month Finding for Atlantic Pigtoe, 83 Fed. Reg. 51570 (proposed Oct. 10, 2018) (to be
codified at 50 C.F.R. 17).
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ESA.�i� USFWS has directly informed NCDOT of these pending listings, stating that these
species—the Green Floater, the Carolina Madtom, the American Eel, and the Neuse River Water
Dog—may be listed as "threatened or endangered prior to the completion of the project."213 The
2011 Freshwater Mussel Survey completed for the DEIS documented 41 Atlantic Pigtoe
individuals and 39 Green Floater individuals within the project area.214 Yet the agencies failed
to study the likely impacts to these species or other species as a result of Complete 540.
Early on, NCDOT appeared poised to at least include information about the three species
under review by the USFWS—the Atlantic Pigtoe, Carolina Madtom, and Neuse River
Waterdog: "Given the high potential that some, or all, of these species will become listed prior
to the completion of the Final Environmental Impact Statement (FEIS), it was determined to be
prudent to include the baseline for these three species [Atlantic Pigtoe, Carolina Madtom, and
Neuse River Waterdog] in the BA."215 A recent consultant report recommended that NCDOT
begin coordinating with USFWS about impacts to species "that may be under study before
construction is completed."216
Despite these apparent plans and sound logic for including these species, neither the BA
not BO eXpressly include these species and provide no explanation for the omission.�i� The
referenced baseline data was apparently gathered by NCDOT's consultants, however, it was not
disclosed in the NEPA documents or permit application and corresponding documents, leaving
the public unable to comment on the adequacy of this data and the underlying methodology.
Because the mussel BO and BA and the Atlantic Sturgeon BA are the only documents
accompanying the FEIS to address species impacts, this omission means that the NEPA
documents fail to consider the impacts to these and other rare and sensitive aquatic species.
�'� See Biological Assessment at 4.
213 Letter from Gary Jordan, USFWS, to Jennifer Harris, NCDOT (May 14, 2014), at 2, Attachment 36.
214 Natural Res. Tech. Report, App. E: Freshwater Mussel Survey Report at Tables 3-111.
�'s Aquaric Species Survey Report (June 2017), at 1; see also id. at 52 ("The other target species, the Atlanric Pigtoe,
Carolina Madtom, and Neuse River Waterdog will be included in the BA should they become proposed before the
beginning ofproject construction."); H.W. Lochner, Inc., Scope of Services Task Order 12 (Sept. 14, 2016) at 1
("Given the high potential that some, or all, of these species will become listed prior to the completion of the Final
Environmental Impact Statement (EIS), it is prudent to include these species in the Biological Assessment (BA) for
this project."), Attachment 37.
216 Dawson & Associates, Analysis of the Process and Schedules for the Complete 540 and Mid-Currituck Bridge
Projects (Sept. 2017), at 9. Attachment 38.
�" Biological Assessment at 4("These species [Atlantic Pigtoe, Carolina Madtom, Green Floater, and Neuse River
Waterdog] are not addressed in this BA; however, Three Oaks has gathered baseline data for these species if they
become formally listed during the development stages of this project.")
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In its comments on the DEIS, USFWS highlighted that the Complete 540 project would
"have very substantial impacts on fish and wildlife resources, including impacts to streams,
wetlands, upland forest and other habitat type .... in the form of direct loss of habitat and
habitat fragmentation effects on remaining habitat."218 The comments also explain that
USFWS's main concerns with the project relate to the "indirect habitat loss" anticipated from
"secondary development induced by the new road facility."219 Despite these warnings from
USFWS, NCDOT has failed to investigate or document these likely impacts to species other than
those listed under the ESA. Furthermore, according to emails eXchanged between NCSU
researchers, "NCDOT doesn't rule out proving additional funding in future years for more
species as they become federally listed, but they don't guarantee it either."220
V. The Permit Must be Denied Because it Fails to Document the Impact of the Project
on Environmental Justice Populations
The Conservation Groups' comments on NCDOT's NEPA documents eXtensively
documented the inequitable impacts of toll roads in general and of the proposed project
specifically on Environmental Justice ("EJ") communities.��i Nevertheless, NCDOT failed
meaningfully respond to these comments or sufficiently analyze the EJ impacts associated with
its preferred alternative. The Corps should not review the 404 application until a full analysis has
been prepared as part of a Supplemental EIS.
A. The Corps is required to review EJ impacts
Environmental Justice is the fair treatment of all people under environmental laws,
including the basic goals of equal protection from environmental hazards and equal access to the
decision-making process in environmental matters.��� In 1994, President Clinton signed
Executive Order 12898, which established the federal government's responsibility to address
EJ.223 The Order requires federal agencies, to the greatest extent practicable to "make achieving
218 Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, N.C. Dep't of Transp. (Nov. 25, 2015), at 1.
Attachment 16.
�' 9 Id. at 4. Attachment 16.
220 E-mail from Greg Cope, NCSU, to Harry Daniels, NCSU, Sylvia Blankenship, NCSU, Steven Lommel, NSCU,
Rein Evans, NCSU, Richard Linton, NCSU (May 14, 2015). Attachment 39.
��� Letter from Kym Hunter and Ramona H. McGee, SELC, to Rodger Rochelle, NCDOT 22-31. Attachment 2.
��� See Environmental Justice, U.S. ENVT'L PROT. AGENCY, https://www.epa.gov/environmentaljustice (last
visited Feb. 12, 2018). Attachment 40.
223 Exec. Order No. 12,898 § 1-1 Ol, 59 Fed. Reg. 7629, 7629 (Feb. 11, 1994), available at
https://www.archivcs.gov/filcs/fcdcral-rcgistcr/cxccutivc-ordcrs/pdf/12898.pdf, Attachment 41. see also COLTNCIL
ON ENVT'L QUALITY, ENVIRONMENTAL JUSTICE: GUIDANCE UNDER THE NATIONAL
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environmental justice part of its mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental effects of its programs,
policies, and activities on minority populations and low-income populations."224
The Corps has a duty to consider the effects of the Complete 540 project on minority and
low-income populations in the project area. Pursuant to Executive Order 12898, the Corps has a
responsibility to "collect, maintain, and analyze information assessing and comparing
environmental and human health risks borne by populations identified by race, national origin, or
income" and "use this information to determine whether their programs, policies, and activities
have disproportionately high and adverse human health or environmental effects on minority
populations and low-income populations." Id. at §3-302 (a).
B. NCDOT failed to analyze EJ impacts
The Corps cannot rely on NCDOT's analysis of EJ impacts which is cursory and
insufficient to satisfy the Corps' requirements under EO 12898 and NEPA.225 First, NCDOT
concluded that low-income, minority, and elderly people live throughout the study area, but are
not concentrated next to any of the DSAs.226 Second, NCDOT concluded that a"relatively
small" number of the displacements that would be required to build the preferred alternative
would affect low-income residents.��� NCDOT further concluded that the proportion of people
who would be displaced by the preferred alternative who are low-income is lower than the
proportion of low-income people in the study area as a whole, and therefore displacement would
not disproportionately affect low-income residents.228 NCDOT claims to anticipate no EJ
impacts.229
NCDOT briefly and insufficiently addressed impacts to low-income communities and
communities of color in the 2015 Community Impact Assessment ("CIA"). Here NCDOT
ENVIRONMENTAL POLICY ACT (1997), available at
https://www.doi.gov/sitcs/doi.gov/filcs/migratcd/pmb/ocpc/upload/EJ-undcr-NEPA.pdf, Attachment 42; N.C.
DEP'T OF ENVT'L QUALITY, 1 GUIDANCE FOR ASSESSING INDIRECT AND CUMULATNE IMPACTS
OF TRANSPORTATION PROJECTS IN NORTH CAROLINA I-28 to I-30 (2001), available at
https://connect.ncdot.gov/resources/environmental/compliance%20guides%20and%20procedures/volume%2001 %2
Oassessment%20guidance%20policy%20repart.pdf, Attachment 43
224 Id. Attachment 43.
��s See Final Environmental Impact Statement 17-19 (2017).
226Id. at 17.
��' Id. at 17-19.
��g Id. at 19.
229 Id. at v.
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hurriedly dismissed any real consideration of toll impacts by stating that the continued
availability of non-toll alternatives removes any impacts to low-income communities and
communities of color.230 The CIA does not examine the impact of the cost of the toll, stating
that this will be added after the traffic and revenue study.231 NCDOT concludes that "while low-
income and minority populations are located in various parts of the Demographic Study Area,
these populations are generally not concentrated within the [Direct Community Impact Area
("DCIA")]."232 NCDOT considered only whether the residential relocations required by the
project would disproportionately affect low-income and minority populations, concluding that
only small proportions of the people facing relocation would be low-income, and only one
minority community would be affected, constituting a very small proportion of the relocations.233
Notably, the CIA relies on the 2011 Community Characteristics Report,234 which is nearly a
decade old and relies on 1990 and 2000 census data.23s
The treatment of impacts to low-income communities and communities of color in the
Permit Application and supporting documents is wholly inadequate. First and most obviously,
NCDOT failed to consider adequately the well-documented impacts of tolls on EJ communities.
The CIA merely dismisses most tolling impacts because of the availability of non-toll roads.
This ignores two key facts: North Carolinian taxpayer resources are being poured into this
project that the EJ communities will be unable to use; and moreover, while existing highways
will continue to exist, the agencies' own analysis shows that several will get more congested
once the toll road is in place. Thus, the low-income communities and communities of color are
straddled with all the monetary costs, but also environmental costs of the Complete 540 project,
but will not get any of the benefit: failure to identify this fact for the public to consider is a clear
violation of NCDOT's duties under NEPA and of the Corps' EO 12898 duties.
Second, NCDOT did not analyze proximity impacts. NCDOT concluded that census data
shows no particular concentration of low-income, minority, and elderly people next to a DSA.
However, this falls far short of analyzing what the proXimity impacts will be to those
communities. Moreover, NCDOT's conclusion that these populations "do not appear to be
z3o Community Impact Assessment 53-54 (2015).
231 Id.at 53.
23� Id. at 54.
z33ld.at 54-55.
z34 Id. at 1.
zss Id.at 7 .
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concentrated in areas near any of the DSAs"236 is vague and provides little basis from which
even to infer that proXimity impacts will be small.
Third, even NCDOT's analysis of displacements is insufficient. NCDOT provided a
numeric review of the low-income people who would be displaced,237 but did not do so for
minority displacements, merely stating that "Dreamland Mobile City neighborhood appears to
be the sole cluster of minority residents affected by the DSAs" and would be affected by all
DSAs, and therefore resulting minority relocations constitute "a very small proportion of the
total relocations for each of the DSAs."238 Notably, the NCDOT's conclusion that this impact
may be written offbecause all DSAs would impact Dreamland fails to acknowledge that non-
highway alternatives would not do so. In addition, NCDOT did not analyze whether elderly
people would be disproportionately impacted by displacements.
Fourth, although NCDOT acknowledged the project would displace multiple
communities, it failed to take full account of its impacts. For eXample, NCDOT acknowledges
that "[t]he Orange Corridor would also bisect the nearby Blue Skies Mobile Home Park,
requiring relocations of several of the mobile homes, and the Fairview Wooded Acres
neighborhood."239 Nevertheless, Blue Skies was not even included on the design public hearing
maps.240 When an SELC attorney asked about the park at the public meeting on February 21,
2018, noting that it was not represented on the public hearing maps, an NCDOT representative
said he was not familiar with the park or its location. Not only would the highway bisect the
community; according to residents, it may displace the well that supplies water to the residents of
Blue Skies. Furthermore, Complete 540 will not greatly help and in many cases may worsen
traffic along local roads, yet these are likely to be the routes used by low-income communities.
For example, residents of the 70-East Mobile Acres & RV Park241 can be expected to use I-70-
23� Id. at 17.
237 Community Impact Assessment 55 (2015).
238Id. at 54-55 (emphasis added).
23y Id. at 50; see id. at 51-52 (Tbl. 19).
z4o See 2018 Complete 540 Design Public Meetings & Hearing Guide to Subdivision Locations Near the Preferred
Alternative, available at https://xfer.services.ncdot.gov/PDEA/Web/Complete540/final-eis/design-
maps/C540_Subdivision_List.pdf, Attachment 44; see also Lisa Sorg @lisasorg, TWITTER.COM,
https://twitter.com/lisasorg/status/966116968863617024, Attachment 45.
241 See GOOGLE MAPS, 70-East Mobile Acres & Rv Park, 117 Buffaloe Acres Ln, Garner, NC 27529,
https://goo.gl/maps/hKSw4pEMHYq (last visited Feb. 22, 2018). Attachment 46.
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which the Quantitative ICE memo shows will become more congested if Complete 540 is built
and I-70 Business, which will barely benefit.24�
For these reasons, NCDOT's analysis of EJ impacts in the FEIS is wholly inadequate to
satisfy the Corps' responsibilities pursuant to EO 12898. A full analysis should be prepared as
part of a Supplemental EIS before the project is permitted to proceed.
VI. The Permit Should be Denied Because NCDOT has Failed to Provide a Detailed
Mitigation Plan
Under the section 404(b)(1) Guidelines the Corps must determine the compensatory
mitigation required for a section 404 permit, "based on what is practicable and capable of
compensating for the aquatic resource functions that will be lost as a result of the permitted
activity." 40 C.F.R. § 230.93(a). In making the determination, the Corps must determine the
"likelihood for ecological success and sustainability, the location of the compensation site
relative to the impact site and their significance within the watershed." Id. Applicants for
section 404 permits are thus required to produce detailed mitigation plans for any unavoidable
impacts to wetlands. NCDOT failed to take appropriate and practicable steps to avoid adverse
impacts to water and failed to provide compensatory mitigation plans.
In its application, NCDOT states that the proposed construction of the Complete 540 Toll
Road will "result in unavoidable impacts to jurisdictional streams, open water ponds, riparian
and non-riparian wetlands, isolated wetlands and ponds, and Neuse River riparian buffers."243
Despite NCDOT's acknowledgement that its preferred alternative will impact a massive swath of
streams and wetlands,244 there is barely any information in the Permit Application and no
information in the FEIS regarding the mitigation plans that will be put in place to mitigate for
impacts of the wetlands loss. For example, the application states that "All impacts to isolated
wetlands [from segments R-2721A & B] will have mitigation provided in HUC 03020201 only,"
but does not explain where within this hydrologic unit mitigation will occur or how mitigation at
the actual location ultimately selected will compensate adequately for the aquatic resource
functions that will be lost.245 Similarly, the application states that impacts to isolated wetlands
will be mitigated at a 1:1 ratio, but only after the first half-acre is destroyed, citing "the NCDWR
24� Quantitative ICE Report 75-76.
z43 Permit Application at 4.
z44 Id. at 3.
245 Permit Applicarion at 20.
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mitigation requirement,"246 yet this does not explain how this level of mitigation meets the
federal requirement noted above.
Rather than provide a detailed mitigation plan, NCDOT's merely proposes to acquire
compensatory mitigation for unavoidable impacts from NCDMS.247 For evidence of its
mitigation plan, NCDOT relies solely on NCDMS's acceptance letters, which state only that
NCDMS will provide up to 17,8961inear feet of stream mitigation and 19.26 acres of riparian
wetland mitigation.
The letters from NCDMS fail to meet the requirements of the section 404(b)(1)
Guidelines. The NCDMS acceptance letters give no indication as to the location of the
compensation sites relative to the impact sites and their significance in the watershed. The letters
do not provide a timeline for the completion of mitigation projects. Thus it is impossible to
ascertain if the projects will comply with the section 404(b)(1) requirement that compensatory
mitigation projects "be to the maximum eXtent practicable, in advance of or concurrent with the
activity causing the authorized impacts." 40 C.F.R. § 230.93(m). The fact that the letter
provides no detail about the proposed mitigation, coupled with the fact that the Permit
Application does not provide full details about the impacts from the project, makes it impossible
for the Corps to consider required factors in its determination that the project will not result in
significant degradation to the waters of the U.S. and that compensatory mitigation is adequate to
offset impacts. Without knowing details about the impacts of the project and the location and
type of mitigation project, the Corps will not, for example, be able to determine if the
compensatory mitigation is located "where it is most likely to successfully replace lost functions
and services." 40 C.F.R. § 230.93(b). The Corps therefore, has no basis for evaluating whether
NCDOT's proposed mitigation measures are capable of compensating for the ecological
destruction the preferred alternative will impose upon wetlands.
Moreover, as documented in the NCDOT's 2016 Dwarf wedgemussel Viability Report,
finding sufficient mitigation sites within the appropriate area will prove challenging. The report
observed that in the recent past "finding conservation areas within SCW has been very
challenging," and that "many of the landowners in the watershed believe their land is highly
sought after for developers and County alike."248 Given this apparent dearth of mitigation sites
NCDOT must provide Corps with more detail about the mitigation it intends to perform, before
the Corps can make a determination that sufficient mitigation sites exist and are capable of
246 Id.
247 Permit Applicarion at 4, 20-22.
248 Dwarf Wedgemussel Viability Study — Phase 2 53 (2016).
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compensating for the aquatic resource functions that will be lost as a result of the Complete 540
project. See O'Reilly v. U.S. Army Corps of En in�eers, 477 F.3d 225, 235 (Sth Cir. 2007)
(finding NEPA environmental assessment for Section 404 permit for one phase of three-phase
project inadequate due to "too little information as to the workability of the mitigation
measures," individual and cumulative impacts of permit, and ability of mitigation measures to
mitigate impacts, i.e., why selected mitigation rendered cumulative impacts less-than-
significant); Ohio Vallev Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 206 (4th Cir. 2009)
(applying O'Reillv).
VII. The Permit Should be Denied as Contrary to the Public Interest
Any application for a Section section 404 permit is subject to the Corps' public interest
review requirements set forth at 33 C.F.R. § 320.4. "The decision whether to issue a permit will
be based on an evaluation of the probable impacts, including cumulative impacts, of the
proposed activity and its intended use on the public interest." 33 C.F.R. § 320.4(a)(1). This
evaluation requires a balancing test, in which "[t]he benefits which reasonably may be expected
to accrue from the proposal must be balanced against its reasonably foreseeable detriments." Id.
In making this decision, the Corps must consider all relevant factors, including:
conservation, economics, aesthetics, general environmental concerns, wetlands,
historic properties, fish and wildlife values, flood hazards, floodplain values, land
use, navigation, shore erosion and accretion, recreation, water supply and
conservation, water quality, energy needs, safety, food and fiber production,
mineral needs, considerations of property ownership and, in general, the needs
and welfare of the people.
Id. Every public interest review must also consider these general criteria:
(i) The relative extent of the public and private need for the proposed structure or
work;
(ii) Where there are unresolved conflicts as to resource use, the practicability of
using reasonable alternative locations and methods to accomplish the objective of
the proposed structure or work; and
(iii) The extent and permanence of the beneficial and/or detrimental effects which
the proposed structure or work is likely to have on the public and private uses to
which the area is suited.
33 C.F.R. § 320.4(a)(2).
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The Corps' public interest regulations explicitly recognize the importance of wetlands to
the public interest, stating that "[m]ost wetlands constitute a productive and valuable public
resource, the unnecessary alteration or destruction of which should be discouraged as contrary to
the public interest." 33 CFR § 320.4(b)(1). Accordingly, the regulations provide that "[n]o
permit will be granted which involves the alteration of wetlands identified as important [to the
public interest] unless the district engineer concludes ... that the benefits of the proposed
alteration outweigh the damage to the wetlands resource." 33 C.F.R. § 320.4(b)(4); see
Shoreline Assoc. v. Marsh, 555 F. Supp. 169, 179 (D. Md. 1983) (upholding Corps' denial of
permit based on its finding that wetlands were important to the public interest).
Applying the Corps' public interest balancing test, the permit should be denied. The
Complete 540 Toll Road would have a myriad of negative effects. In addition to its direct
wetland impacts, the Complete 540 Toll Road would have significant adverse impacts to
conservation, economics, aesthetics, general environmental concerns, land use, water quality,
and fish and wildlife — all relevant factors under the Corps' public interest regulations. The
project will cost approximately $2.2 billion and will actually increase congestion for many
drivers. Drivers who are willing and able to pay a toll would save an average of a mere 3.08
minutes. The project will induce further sprawl on the fringe of a rapidly expanding
metropolitan area, will substantially contribute to the degradation of air and water quality, and
will jeopardize federal endangered species and impact their habitat. Moreover, as discussed
above, NCDOT has utterly failed to demonstrate that alternatives, such as improvements to
eXisting roadways at a fraction of the cost of this project, would not satisfy the public need. This
project fails to meet the Corps' public interest test.
A. Exorbitant costs
NCDOT's proposed project will cost $2.2 billion. NCDOT, despite repeated questioning
from the public, has failed to provide a plan on finance for the project. NCDOT has not even
explained how much of the project cost is expected to be covered by toll revenue.
NCDOT's traffic revenue study, which concludes that the highway will support sufficient
travelers to be economically viable, is problematic in multiple ways. First, the document is
eXtremely opaque�t generally lumps together the existing section of 540 alongside the
eXtension, making it difficult to assess how much additional revenue the eXtension itself will
bring in. A careful reading, however suggests that in 2025 the first two segments of the toll
highway would bring in just $11.5 million per year, rising to $51.7 million by 2029. If and when
the remaining segment of the Complete 540 project is funded, built and opened, the projections
suggest that by 2034 all three segments would bring in $122.1 million per year. Even under the
most optimistic projections, the entire Complete 540 project is not expected to match revenue
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from existing 540 unti12051. Given the fact that the Complete 540 project will cost almost twice
as much as the first stretch of 540 this low projection is surprising and calls into question the
NCDOT's investment in the $2.2 billion project.
Second, it is likely that even these low revenue projections are overly optimistic. The
planning level traffic and revenue study is surprisingly crude. It is generally understood good
practice to use different values of travel time for different types of trips (home-based work,
home-based non-work, non-home based, commercial, school, etc.) The typical values of travel
time recommended for traffic modeling are shown below, from a national best-practice
publication that relates value of travel time to the region's wage rate: 249
Commute; 40-50% of Wage Rate
Personal Travel: 30-40% of Wage Rate
On the Clock Travel: 100% of Wage Rate
For the greater Raleigh area, the overall regional wage rate is about $24.23250 (the median
wage rate is about $18/hr). A typical value of travel time for commuters diverting to save time
would average about $9-12/hr., and less for non-work trips. This rate does not appear to match
up with the high toll rates and limited travel time savings that are expected from the Complete
540 project. The Traffic and Revenue study relies on a much higher value of time ($0.279 per
minute ($16.74/hr.) during peak travel periods and $0.233 per minute ($13.98/hr.) during off-
peak travel periods).
Another hidden assumption in the traffic modeling is that all travelers have perfect
knowledge and can discern even small travel time differences for different routes. But many
studies show that travelers cannot discern time differences in travel situations of less than about
5 minutes, so a small time saving by using a toll road, even if real, would go undetected by most
travelers. The models used here to forecast travel do not account for these limitations of human
perception, nor do they account for other reasons for using a toll road. If the asserted value of
travel times shown in Table 4.7 were assumed to be `seen' by all travelers, than not only are they
24y National Cooperative Highway Research Program, Analytical Travel Forecasting Approaches for Project-Level
Planning and Design, Report 765, Transportation Research Board, Washington DC, 20590, 2014, page 233,
www.trb.or�. Attachment 47.
zso U.S. Dept. of Commerce, Bureau of Labor Statistics, Occupational and Employment Staristics, May 2016 at
https://www.bls.�ov/ocs/currcnt/ocs_39580.htm. Attachment 48.
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Page 62
too high, but also they are too widely applied. This means that the traffic and revenue forecasts
for the Preferred Alternative are overestimated.
The traffic and revenue study does not make clear the level of travel time savings it is
relying upon for its projections and so it is difficult to determine if they match up with what has
been published in the NEPA documents. Certainly, as noted above, the savings between travel
time pairs included with the FEIS show that time savings will be extremely limited, even by
2040, further calling into validity the feasibility of this project.
Given these uncertainties, the unprecedented high cost, and the relatively lower cost of
other project alternatives, the Conservation Groups have asked repeatedly over the years how
much of the project cost is expected to be covered by toll revenue. To date, the groups have
gotten no answer. In public meetings in 2016, attorneys for the Conservation Groups were
directed to NC Turnpike Authority employee Susan Pullium who promised to provide
information on the assumptions had been used by regarding the percentage of the project that
would be financed by tolls.251 Ms. Pullium has never provided this information. The attorneys
reiterated this request in a recent meeting with NC Turnpike Authority employees Rodger
Rochelle and Beau Memory.252 Mr. Memory and Mr. Rochelle responded that they did not
know how much of the project would be covered by toll revenue.
NCDOT, to date, has not provided a financial plan for its preferred alternative. Given the
extremely high cost, the fact that it is likely to saddle generations of North Carolinians with debt,
the fact that the project has very limited utility, and the fact that there are much less expensive
options available, this absence is extremely problematic, and requires a finding that the project
does not serve the public interest.
B. Water quality impacts
The Permit Application states that the toll highway would impact 65.63 acres of
permanent wetland, 57,3441inear feet of stream, 29.53 acres of surface water, and 6,774,753
square feet of Neuse riparian buffer.253 As noted above, these impacts could be even greater than
reported because NCDOT has only included preliminary impacts for R-2828 and R-2829. While
the primary responsibility for water quality compliance resides with the state, applications for
�s' Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT n. 171 (Jan. 8 2016).
Attachment 1.
Z52 Attorneys Ramona McGee and Kym Hunter met with Mr. Rochelle and Mr. Memory on January 30, 2018.
zss permit Applicarion at 3.
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404 permits also must be evaluated for compliance with applicable effluent limitations and water
quality standards, 33 C.F.R. § 320.4(d), and the Corps' public interest review should consider
impacts to water quality. Id. § 320.4(a)(1). The EPA and Corps' regulations require that section
404 permit applicants first take all appropriate and practicable steps to avoid and minimize
adverse impacts to waters, and only then turn to relying on compensatory mitigation for any
remaining unavoidable impacts. Id. § 332.1(c)(2).
As discussed in the Conservation Groups' comments on NCDOT's NEPA documents, the
proposed project will have an unprecedented level of impact on water bodies in North
Carolina.254 Nevertheless, NCDOT's application merely lists out the quantity of water bodies
and wetlands impacted and fails to provide any additional details about water quality impacts.Zss
The application's only mention of water quality is a reference to NCDOT's flawed ICE Report
concluding that the differences in impacts for most water quality parameters between the Build
and No-Build scenarios are less than one percent.256 As discussed extensively above and in
previous comments, the ICE Report's counterintuitive conclusion that a 27-mile-long six-lane
highway will have negligible impacts on water quality is based on the unsupported assumption
that future development patterns in southern, rural parts of Wake County will mirror observed
patterns in the northern, urban parts of the county.25�
The Permit Application fails to even provide sufficient baseline information concerning
water quality in the Swift Creek Critical Watershed. The FEIS's Lower Swift Creek Water
Quality Report was largely limited to reviewing water quality in relation to Dwarf wedgemussel
viability, and even then, relied solely on sampling from three sites from nine different days in
2014 and 2015.258 Even this limited study revealed copper levels that exceeded applicable water
quality standards.259 NCDOT's extremely limited study of Swift Creek underscores the need to
quantitatively evaluate the impacts of the proposed project on an already compromised water
body.
Finally, while the Permit Application states that NCDOT "employs multiple strategies to
avoid and minimize impacts to jurisdictional areas in all of its designs,"260 it fails to mention any
specific strategies and how they actually avoid and minimize impacts to water quality. Similarly,
254 Letter from Kym Hunter and Ramona H. McGee, SELC, to Rodger Rochelle, NCDOT 49-51. Attachment 2.
ass Permit Application at 3-4.
256 Permit Application at 27.
257 See Quantitative ICE Report 4.
258 Lower Swift Creek Water Quality Report 3-4 (2016).
zs91d. at 6.
zbo Permit Applicarion at 19.
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NCDOT claims that for unavoidable impacts to streams and wetlands, a list of minimization
efforts are being utilized.261 But many of these minimization strategies are not binding, and
apply only "as feasible" or "where practical."262
C. EJ impacts
As discussed above, Toll Roads generally, and this project specifically,
disproportionately burden environmental justice communities. North Carolinian taxpayer
resources are being poured into this project that the EJ communities will be unable to use; and
the agencies' own analysis shows that several roads will get more congested once the toll road is
in place. Thus, the low-income communities and communities of color are straddled with all the
costs of the Complete 540 project, but will not get any of the benefit. This inequity must be
accounted for in the Corps' public interest analysis.
D. Endangered and rare species
As discussed above, the proposed project would jeopardize the Dwarf Wedgemussel,
Yellow Lance, and Atlantic Sturgeon. While violation of the ESA is an independent ground for
refusing to issue a permit, negative impacts on endangered species should also be considered in
the Corps' public interest analysis. The proposed project is also likely to impact the Atlantic
Pigtoe, which has been proposed for listing as threatened. USFWS has also warned NCDOT of
several pending listings, stating that additional species—the Green Floater, the Carolina
Madtom, the American Eel, and the Neuse River Water pog—may be listed as "threatened or
endangered prior to the completion of the project."263 The proposed project's likely impacts on a
litany of endangered and rare species requires a finding that the project does not serve the public
interest.
VIII. NCDOT has not met the Requirements for a Section 401 Clean Water Act
Certification and thus the Corps Must Reject its Application for a Section 404
Water Quality Permit
The Corps cannot issue a section 404 Water Quality Permit without a section 401 Water
Quality Certification from DWR. 33 U.S.C. § 1341. The Conservation Groups will submit
comments on the section 401 certification to DWR priar to December 16, 2018.
261 Id. at 19.
z�z Id.
z63 Letter from Gary Jordan, USFWS, to Jennifer Harris, NCDOT (May 14, 2014), at 2, Attachment 36.
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IX. The Corps Must Deny the Permit Application
As outlined above, to issue a permit for Complete 540 would be to commit numerous
legal violations. The Corps must reject NCDOT's application for a permit, and ask the agency to
reconsider alternatives and impacts in a Supplemental EIS. The Corps cannot issue a permit for
anything other than the LEDPA and it has been clear for decades that the route NCDOT wishes
to select is simply not permittable. There are less damaging alternatives that are practicable. If
NCDOT doesn't wish to pursue such options it should reconsider its transportation strategy for
the region. The Corps also cannot move forward until NCDOT and the USFWS have ensured
that the project will not place any threatened or endangered species in jeopardy. There is
currently no such assurance.
To issue a permit now, based on the current permit application and NEPA documents,
would open the Corps up to likely legal challenge. The legal violations would be straightforward
and plentiful. Rather than debate these issues in the courtroom, however, we ask that you meet
with SELC and our clients at your earliest convenience to discuss this project and the permit
application. We regret that, thus far, you have not scheduled a public hearing.
Thank you for this opportunity to submit our concerns.
Sincerely,
Kym Hunter
Senior Attorney
CC (via e-mail, attachments on request):
Matthew Starr, Sound Rivers
June Blotnick, Clean Air Carolina
Perrin DeJong, Center for Biological Diversity
Beau Memory, NCTA
John F. Sullivan, III P.E., FHWA
Amy Chapman, NCDEQ
Gary Jordan, USFWS
Chris Millitscher, USEPA
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Chair Michael S. FoX, NC Board of Transportation
Vice Chair Nina Szlosberg-Landis, NC Board of Transportation
Jeremy Tarr, Office of Governor Roy Cooper
North Carolina Secretary of Transportation James Trogdon
General Counsel, Chuck Watts, NCDOT
Chris Lukasina, CAMPO
66