20181249 Ver 1_Attachment 1- 2018-02-22 SELC Comments to NCDOT re Complete 540 FEIS_20181217

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
February 22, 2018
VIA E-MAIL AND U.S. MAIL
Mr. Rodger Rochelle
North Carolina Department of Transportation
1548 Mail Service Center
Raleigh, NC 27699-1548
[e-mail]
RE: Comulete 540: Final Environmental Impact Statement
Dear Mr. Rochelle:
On behalf of Sound Rivers and Clean Air Carolina (the "Conservation Groups"), the
Southern Environmental Law Center ("SELC") submits the attached comments on the Final
Environmental Impact Statement ("FEIS") for the Complete 540 Toll Road.
INTRODUCTION
The FEIS fails entirely to address the concerns raised by the Conservation Groups in their
comments on the Draft Environmental Impact Statement ("DEIS"). Moreover, the FEIS contains
little new information and the additional facts that are provided only serve to raise further
questions about the advisability of moving forward with this $2.2 billion project.
It is clear from the FEIS that the North Carolina Department of Transportation
("NCDOT") and the Federal Highway Administration's ("FHWA") (collectively, the
"Transportation Agencies") primary aim is nothing more than completing a loop: tidily filling in
the last gap in a circle. Since the idea of an outer loop around Raleigh was first dreamed up in
the late 1960s much has changed. The vibrant, educated workforce living and moving to the
Raleigh area is much less interested in long commutes and suburban living. Instead, workers are
searching for exciting urban opportunities. Employers are looking for strong mass transit
systems and walkable, bikeable communities. Technology is changing—autonomous vehicles
are fast coming online, ride-hailing is on the rise, and even drone technology looks set to change
our mobility patterns. We are poised at a moment of enormous change, and this is therefore
exactly the wrong time to consider a massive, unprecedented investment in the transportation
system of the past.
The Transportation Agencies should use this opportunity to reconsider alternative
solutions. The FEIS illuminates that, expensive though this 28 mile highway is, it would not
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC

actually even achieve one of the main purposes it was designed to achieve. Data included with
the FEIS show that rather than improving congestion on surrounding roadways, the preferred
alternative will actually make congestion worse. By contrast, the Conservation Groups present
an alternative focused on upgrades to the existing highway system that would do a much better
job of improving local congestion. The alternative would be much less expensive, would have
significantly less impact on the natural environment, and would be available for all users, not just
those able to pay an expensive toll.
The FEIS does nothing to allay the Conservation Groups' concerns about the massive,
unprecedented impacts from the project. The document details significant impacts to water
quality and wetlands, but offers little information as to how such impacts will be mitigated. The
document is woefully inadequate in describing the impacts to air quality and how the project and
its associated growth will impact climate change—a concerning development given North
Carolina's stated commitment to the Paris Accord. The document brushes off impacts to low
income and minority communities, ignoring the fact that an entire mobile home park will be
essentially obliterated and disregarding the fact that low-income families will not be able to pay
the price of a costly toll with the false promise that they will get the benefit of congestion relief
regardless. And the document punts on one of the key legal obstacles that has always faced this
project: the existence of two federally protected species that lie in its path and will be thrown
into jeopardy with construction. Despite knowing about this issue for decades, the
Transportation Agencies have still failed to come up with more than a vague proposal to commit
to a short-term experimental breeding population, without any guarantee of success or any plan
for successful release into the wild.
In short, the FEIS is a legally deficient document for a project that is a bad idea, a waste
of money and a guarantee of nothing other than destruction of all that makes this part of our
region special. As detailed further below we urge the Transportation Agencies to take a closer
look at alternative solutions and to publish a Supplemental EIS.
I. POOR PUBLIC PROCESS
Throughout the Complete 540 project's development, the agencies have been slow to engage
stakeholders and address concerns raised by the public. In particular, the Transportation
Agencies failed to substantively address Conservation Groups' concerns and comments raised
about the project's Draft Environmental Impact Statement ("DEIS"). The Transportation
Agencies also misled the public about the project schedule, impairing the ability of Conservation
Groups and other members of the public to effectively weigh in on the project.
1. The Agencies' Violated NEPA by Failing to Consider and Respond to the
Conservation Group's Comments
The Transportation Agencies' responses to the Conservation Groups' comments on the
DEIS,1 were legally insufficient. Under NEPA, an agency must solicit comments on a DEIS, 40
C.F.R. § 1503.1, and must respond to substantive comments in the subsequent FEIS, 40 C.F.R.
1 Stakeholder Involvement Report, Appendix J3.
2

§ 15029(b). The response must "discuss at appropriate points in the final statement any
responsible opposing view which was not adequately discussed in the draft statement and shall
indicate the agency's response to the issues raised." Id.; see also Robertson v. Methow T�alley
Citizens Council, 490 U.S. 332, 350 n.13 (1989). In its responses the agency may:
(1) Modify alternatives including the proposed action.
(2) Develop and evaluate alternatives not previously given serious consideration by the
agency.
(3) Supplement, improve, or modify its analyses.
(4) Make factual corrections.
(5) Explain why the comments do not warrant further agency response, citing the sources,
authorities, or reasons which support the agency's position and, if appropriate, indicate
those circumstances which would trigger agency reappraisal or further response.
40 C.F.R. § 1503.4(a). The procedural requirements prescribed in NEPA's implementing
regulations must be "strictly interpreted `to the fullest extent possible"' in accord with the
policies implemented in NEPA. California v. Block, 690 F.2d 753, 769 (9th Cir. 1982) (quoting
42 U.S.C. § 4332). In order to fulfill this mandate, an agency must identify all opposing views
raised in comments and provide a"good faith, reasoned analysis in response" to each. Block,
690 F.2d at 773 (quoting Silva v. Lynn, 482 F.2d 1282, 1285 (lst Cir. 1973)); Sierra Club v. U.S.
Army Corps of Engineers, 701 F.2d 1011, 1030 (2d Cir. 1983) (same); see also Nat'l Audubon
Soc y v. Dep't of Navy, 422 F.3d 174, 198 (4th Cir. 2005) (explaining that the test for NEPA
compliance is objective good faith).
Moreover, agencies must respond explicitly and directly to opposing views in a way that
addresses the underlying issue raised. See Hughes River Watershed Conservancy v. Johnson,
165 F.3d 283, 288 (4th Cir. 1999) (agency must give "careful scientific scrutiny and respond[] to
all legitimate concerns that are raised"); N. Carolina Wildlife Fed'n v. N. Carolina Dep't of
Transp., 677 F.3d 596, 600 (4th Cir. 2012) (faulting responses that "failed to address the
underlying issue"); Earth Island Inst. v. Carlton, 626 F.3d 462, 472 (9th Cir. 2010) (agency must
respond "explicitly and directly"); Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d
1157, 1167 (9th Cir. 2003). Agencies must candidly acknowledge information revealed in public
comments. N. Carolina Wildlife Fed'n, 677 F.3d at 603; see also Nat'l Audubon Soc y, 422 F.3d
at 198 (explaining that NEPA requires "candid acknowledgement" of environmental harms).
And agencies must give the comments of sister agencies special consideration. See Hughes
River Watershed Conservancy, 165 F.3d at 288; Sierra Club v. U.S. Army Corps ofEngineers,
701 F.2d 1011, 1030 (2d Cir. 1983); see also 42 U.S.C. § 4332(C) (requiring consultation and
solicitation of comments from any federal agency with jurisdiction or "special expertise") Nat'l
Wildlife Fed'n v. Andrus, 440 F. Supp. 1245, 1253 (D.D.C. 1977) (implicit in obligation to
consult with and obtain comments from sister agencies with expertise is obligation to consider
and respond).
The Transportation Agencies' responses—or lack thereof—to the Conservation Groups
comments failed to satisfy their legal obligations to candidly acknowledge and respond to the
concerns raised by Conservation Groups. First, the Transportation Agencies selected only
limited portions of the Conservation Group's letter to respond to and ignored a number of

significant concerns. These deficiencies are documented below in the substantive sections.
Second, a large number of the agencies' responses merely stated that information that had been
lacking in the DEIS had been studied further and the results of the investigations made available
in the FEIS. See, e.g., Responses 9, 52. As SELC pointed out in its first comment letter, this late
investigation of issues and delayed dissemination of information to the public undercuts the two
core principles of NEPA: forcing thoughtful, informed agency decision-making and making
information available to the public at a meaningful time. 40 C.F.R. § 1502.14; see Robertson v.
Methow T�alley Citizens Council, 490 U.S. 332, 349 (1989) ("NEPA guarantees that the relevant
information will be made available to the larger audience that may also play a role in both the
decisionmaking process" and "provide[] a springboard for public comment."); Webster v. U.S.
Dep't ofAgric., 685 F.3d 411, 421 (4th Cir. 2012) (an agency has not taken the required "hard
look" at the environmental consequences of an action unless it has prepared an EIS in a way that
"foster[s] both informed decision-making and informed public participation.").
It is also important to document that NCDOT has made some significant missteps in its
public review process. Internal NCDOT emails produced in response to a NC Public Records
Act request revealed that at least some members of the agency attempted to stymie public
participation in the NEPA process by intentionally obscuring the project's timeline from the
public.2 In an internal email, the project manager for Complete 540 warned his supervisor not to
reveal that the environmental review for Complete 540 would issue well ahead of schedule for
fear that "likely litigants" would submit additional FOIA requests.3 In fact, the FEIS was issued
eight months ahead of schedule, right before Christmas, making it challenging for the public to
submit comments in a timely manner. NCDOT then continued to further confuse the public by
publishing two different public comment deadlines. The first, February 1, 2018, was the
deadline published in the FEIS, the second, March 23, 2018 was noted on the project website.
Attorneys for the Conservation Groups alerted NCDOT to the confusion being created by these
different deadlines but no clarifying action was taken.4
IL AN OUTDATED PROJECT
1. Changing Preferences
Complete 540 was first included on transportation planning documents in 1968.5 Since
that time much has changed. Urban loops around cities are no longer the preferred solution by
urban planners seeking to grow vibrant sustainable communities. And our communities
themselves are changing. The young, educated workforce that Wake County hopes to attract is
less interested in suburban living and long commutes—instead there is a preference for walkable
� Richard Stradling, NCDOT accused of misleading public about $2.2 billion highway project, TxE NEws &
OBSExvEx, Jan. 24, 2018, available at http://www.newsobserver.com/news/traffic/artic1e196102254.htm1.
Attachment 1.
3 E-mail from Brian F. Yamamoto, N.C. Dep't of Transp., to Tatia White, N.C. Dep't of Transp. (Sept. 13, 2017
9:35 AM). Attachment 2.
4 E-mail from Kym Hunter, S. Envt'1 Law Ctr., to Rodger Rochelle, N.C. Dep't of Transp., et al. (Feb. 5, 2018 1136
AM). Attachment 3.
s Purpose and Need Statement 18 (20ll).
�

downtowns and robust public transit systems. Meanwhile, experiences in the Charlotte area have
showed that North Carolinians are no fans of toll roads, and there are increasing concerns about
the impact of tolls on equity. On top of all these demographic changes we are seeing an
explosion of new technology. Autonomous vehicles are coming online much faster than
previously anticipated and, coupled with ride hailing and ride sharing applications, look set to
completely change the face of our transportation system long before the Complete 540 project
would be finished. Even drone technology is poised to change the way we think about
commerce and freight. In short, we are no longer living in 1968. What may have been a good
idea in the past is no longer the best solution for Wake County. These changes are discussed in
more detail below. The Transportation Agencies' failure to examine these new trends constitutes
a clear violation of NEPA.
Worse still, NCDOT's proposal to extend the 540 outer loop traps tomorrow's Triangle
within yesterday's infrastructure. Introduced in the 1940's, loop roads were designed with the
car-commuter in mind. By encircling cities with vast highways, planners aimed to keep vehicles
moving and out of downtown. There is disagreement about whether loop roads met this
twentieth-century aim,6 but there is wide agreement that they offer no solutions for future
growth. Tired of long commutes and enticed by city amenities, more and more young
professionals are leaving suburban life for downtown living.� With the growth from this "great
inversion,"8 cities are no longer asking how to move vehicles around downtown but how to move
people within it. Not only do loop roads fail answer to this twenty-first century question, they
actively obstruct new solutions.
One does not need to look beyond the Triangle itself to see the dangers of loop roads.
Durham has spent almost two decades trying to rid itself of its downtown loop. It currently seeks
funding to remove the "big gutter around downtown" and replace it with a pedestrian-friendly
two-way street.9 The "decades-old design," explained the city, "does not support pedestrians,
bicyclists or transit users who want to safely get around downtown or the businesses and retailers
in the City's central business district. The loop also creates a barrier between downtown and
adjoining low-income and minority neighborhoods."10 Durham wants to escape the loop, and it is
in good company.
6 See Rene Lavanchy, Congestion-Beaters Or Roads to Hell: Is There Still a Place for Urban MotoYways?, THE
Gu.��AN (July 8, 2014), https://www.theguardian.com/cities/2014/jul/08/congestion-roads-hell-urban-motorwa�.
Attachment 4.
� See Eric Jaffe, Is Gentrification the Result of Rich People's Quest for Shorter Commutes?, THE ATLANTIC (Nov.
19, 2015) https://www.theatlantic.com/business/archive/2015/11/shorter-commutes-gentrification/416646/.
Attachment 5.
8 Richard Florida, How and Why American Cities Are Coming Back, C�1y LAB (May 17, 2012),
https://www.citylab.com/life/2012/OS/how-and-why-american-cities-are-comin�-back/2015/. Attachment 6.
9 Jeffrey C. Billman, Durham Applies for a Federal Grant to Two-Way the Loop, and It's About Damn Time, IIVDY
WEEx (Oct. 18, 2017), https://www.indvweek.com/news/archives/2017/10/18/durham-a�plies-for-a-federal-grant-
to-two-way-the-loop-and-its-about-damn-time. Attachment 7.
lo Id. Attachment 7.
5

Beginning with Portland in 1974 and San Francisco in 1991, vibrant cities all over the
country are escaping the confines of loop roads.l l Just last year, Rochester, New York tore down
part of its downtown loop and replaced the twelve-lane highway with a walkable, tree-lined
boulevard.12 Now Oakland, California wants to do the same with a stretch of I-980—a
renovation that would open 21 new city blocks for development. 13 Rochester Mayor Lovely
Warren explains the escape-the-loop phenomenon, "It gives us more space to develop. Before
this, businesses had to stop development. They had nowhere to go because of that highway."14
The Triangle area is rapidly growing. NCDOT has an opportunity to address this growth
with creative, twenty-first century solutions. Its proposed action instead threatens to strangle the
Triangle within a twentieth-century mistake.
2. Autonomous Vehicles
The FEIS is completely silent on an emerging technology that could have a significant
impact on the purpose, need, and success of the Complete 540 project, as well as the efficacy of
less damaging alternatives.
Autonomous vehicles ("AVs") essentially use a variety of sensors to detect the vehicle's
surroundings and feed that information to software that controls the vehicle's steering, braking
and acceleration.15 "Connected" AVs can communicate with other AVs or infrastructure.16 AVs
are generally defined by different levels of autonomy along a five-part continuum suggested by
the National Highway Traffic Safety Administration ("NHTSA"), from non-autonomous at
"Level 0" through full autonomy at "Level 4".' �
AVs will undoubtedly affect transportation in multiple ways that are relevant to planning
the project or whether it is needed at all. The stated purpose and need for the Complete 540
project is to improve transportation mobility and to reduce forecast congestion on the existing
roadway network."18 Mobility can be defined as the time and costs required for trave1.19
11 Lavanchy, supra note 6. Attachment 4.
12Freeways Without Futures, CoNGREss FOR TxE NEw URBANISM, https:Uwww.cnu.org/hi,ghways-
boulevards/freeways-without-futures/2017#70 (last visited Feb. 21, 2018). Attachment 8.
13 Id. Attachment 8.
14 Id. Attachment 8.
ls Self-Driving Cars Explained, Union of Concerned Scientists, https://www.ucsusa.org/clean-vehicles/how-self-
driving-cars-work#.WoNOs3xG2Hs (last revised Jan. 26, 2017). Attachment 9.
16Id. Attachment 9.
17 JAMES M. ANDERSON, ET AL., RAND CORP., AUTONOMOUS VEHICLE TECHNOLOGY: A GUIDE FOR POLICYMAKERS
xiii (2016), available at https://www.rand.or�/content/dam/randlpubs/research_reports/RR400/RR443-
2/RAND_RR443-2.pdf. Attachment 10.
18 Purpose and Need Statement (2011); see also FEIS iii.
19 See NAT'L ACADEMY OF SCI., KEY TRANSPORTATION INDICATORS: SUMMARY OF A WORKSHOP 16 (2002),
available at https://www.nap.edu/read/10404/chapter/4. Attachment 11.
0

Congestion is simply traffic.20 AVs are expected to bring a wide variety of benefits and costs,
from reducing crashes and improving access for those unable to drive, to potentially worsening
sprawl.21 The types and extent of benefits depends in significant part on thoughtful planning.22
However, AVs will very likely improve both mobility and reduce congestion.
By communicating with one another and coordinating traffic flows, AVs have the
capacity to reduce urban traffic dramatically. The city of Boston has examined the effect of AVs
on traffic as part of its Go Boston 20301ong term transportation plan, which aims to improve
access to all Boston neighborhoods and improve safety and reliability of transportation.23 The
BCG report examined the effect of AVs on traffic in a half-kilometer square section of
downtown Boston under two scenarios, one in which there was a substantial shift to AVs and
one in which there was a revolutionary shift.24 In the "substantial shift" scenario, traffic and
travel time each fell by 11 %.ZS In the "revolutionary shift" scenario, the number of vehicles in
the area fell by 28%, and average travel time declined by 30%.26 A recent analysis by MIT's
Senseable City Lab determined that AVs using "slot-based intersections" rather than traditional
traffic lights could achieve a two-fold increase in the intersection's capacity and dramatic
reductions in delay,27 cutting travel delays to almost zero.28
AVs also will likely improve mobility in ways distinct from reduced congestion. One
huge potential shift will be the intersection of AV transportation and ridesharing services akin to
Lyft Line and UberPool. It is expected that as these two innovations combine, AV-based
transportation will become considerably cheaper than car ownership.29 The cost per mile to
20 See Traffic Congestion and Reliability: Trends and Advanced Strategies for Congestion Mitigation, FHWA,
https://ops.fhwa.dot. ov,� /con e� stion_report/chapter2.htm (last modified Feb. 1, 2017). Attachment 12.
Z' See id. at 9-40, Attachment N; see also U. OF MICH. CENTER FOR SUSTAINABLE SYSTEMS, AUTONOMOUS
VExiCLEs (2017), http://css.umich.edu/sites/default/files/Autonomous_Vehicles_Factsheet_CSS16-18_e2017.pdf.
Attachment 13.
�� See UNION OF CONCERNED SCIENTISTS, MAXIMIZING THE BENEFITS OF SELF-DRIVING VEHICLES (2017�, available
at https://www.ucsusa.org/clean-vehicles/principles-self-driving-
cars? ga-1.1595166691761058560.1485893388#.Wmn28H1G2Ht. Attachment 14.
23 NIKOLAUS LANG, ET AL., BCG, MAKING AUTONOMOUS VEHICLES A REALITY: LESSONS FROM BOSTON AND
BEYOND (2017), available at http://ima,ge-src.bcg.com/Ima,ges/BCG-Making-Autonomous-Vehicles-a-Reality-Oct-
2017 tcm9-173687.pd£ Attachment 15.
24 Id. at 6-9. Attachment 15.
�s Id. at 9. Attachment 15.
26 7d. Attachment 15.
Z� REMI TACHET, ET AL., MASS. INST. OF TECH., REVISITING STREET INTERSECTIONS USING SLOT-BASED SYSTEMS
(2016), available at http://senseable.mit.edu/papers/pdf/20160316_Tachet etal_RevisitingStreet PLOS.pdf.
Attachment 16.
Zg Light Traffic, MASS. ItvST. oF TECx., http://senseable.mit.edu/light-traffic/ (last visited Jan. 25, 2018). Attachment
17.
Z9 NIKOLAUS LANG, ET AL., BCG, MAKING AUTONOMOUS VEHICLES A REALITY: LESSONS FROM BOSTON AND
BEYOND 7(2017), available at http://ima,ge-src.bc,g.com/Ima,�esBCG-Making-Autonomous-Vehicles-a-Realit�
Oct-2017_tcm9-173687.pdf. Attachment 15.
7

travel by shared electric AV could be 30-60% lower than to travel by private vehicle by 2025.30
In addition, AVs will improve mobility for those who are currently unable or unwilling to drive,
such as the young, the elderly, and the blind.31
These effects are more than reasonably foreseeable. Between now and the time Complete
540 is finished, around 2040,32 AVs will become commonplace, likely comprising approximately
half of the vehicle fleet and more than half of new vehicle sales. NCDOT itself projects that
AVs will comprise 40-60% of vehicle sales, 20-40% of the vehicle fleet, and 30-50% of vehicle
travel by 2040.33 Similarly, an independent transportation consultancy predicts that 25% of the
U.S. fleet will be AVs by 2035,34 and Goldman Sachs has predicted that sales of Level 3 and 4
AV will pass 50% by 2030 and comprise 100% by 2040.35 AVs' share of the fleet and market
will rise continuously between now and 2040, and experts predict that AVs will comprise a
significant proportion of the vehicles on the road well before then. Seven different car
companies have made announcements that they will have AVs ready for market by 2020,36 and
the National League of Cities expects fully autonomous vehicles will be widely available for
wealthy consumers and as fleet vehicles in transportation and freight enterprises by the same
year.37 Even NCDOT's NC Readiness for Connected and Autonomous Vehicles ("CAV") report
estimated introduction of Level 4 AVs into the passenger vehicle market by the year 2025.38 In
an interview, NCDOT's Kevin Lacy said "I expect that before I hit 30 years with the department,
2023 to be precise, we will have autonomous vehicles on the roads."39 Tesla plans to undertake
a cross-country road trip with an AV in the next three to six months.4o
30 MCKINSEY & CO., AN INTEGRATED PERSPECTIVE ON THE FUTURE OF MOBILITY 24 (2016), available at
https://www.mckinsey. com/�/medialmckinsev/business%20functions/sustainability%20and%20resource%20produc
tivitv/our%20insights/an%20inte,grated%20perspective%20on%20the%20future%20of%20mobilitv/an-inte rag ted_
perspective-on-the-future-of-mobility.ashx. Attachment 18.
31 JAMES M. ANDERSON, ET AL., RAND CORP., AUTONOMOUS VEHICLE TECHNOLOGY: A GUIDE FOR POLICYMAKERS
xv (2016), available at https://www.rand.or�/content/dam/rand/pubs/research_revorts/RR400/RR443-
2/RAND_RR443-2.pd£ Attachment 10.
3z ICE Report ii.
33 Burt Tasaico, PowerPoint Presentation: Transportation Funding — Continued, slide 26 (Sept. 6, 2017),
https://www.ncdot.gov/download/about/board/bot/archiveMeeting/2017/201709_MeetingArchive.pd£ Attachment
19.
34 JANE BIERSTEDT, ET AL., EFFECTS OF NEXT-GENERATION VEHICLES ON TRAVEL DEMAND AND HIGHWAY
C.�AcrrY 10 (FP Think Working Grp., 2014), available at
http://orfe.princeton.edul�alaink/Papers/FP NextGenVehicleWhitePaper012414.pdf. Attachment 20.
35 THE GOLDMAN SACHS GROUP, INC., MONETIZING THE RISE OF AUTONOMOUS VEHICLES 15-16 (2015), available at
http://�.iri.com.cn/acc/Res/CN RES/INVEST/2015/9/17/f70472c6-f4ad-4942-8eab-3cOlf3c717a7.pdf.
Attachment 21.
36 CTR. FOR CITY SOLUTIONS AND APPLIED RESEARCH, NAT'L LEAGUE OF CITIES, CITY OF THE FUTURE:
TECxtvoLOGY arry MoBiLi`rY 17 (2016), available at http://www.nlc.or�/sites/default/iiles/2016-
12/Citv%20of%20the%20Future%20FINAL%20WEB.pdf. Attachment 22.
37 Id. Attachment 22.
38 Kimley Horn et al., NC Readiness for Connected and Autonomous Vehicles 29 (Nov. 2016), available at
http://www.ncay.or�/wp-content/uploads/2016/03/NC-Roadmap-for-CAV_Final_ALL.pd£ Attachment 23.
39 Gary Farger, NextGen Supply Chain with Kevin Lacy, North Carolina Department of Transportation, LOGISTICS
MG1v1T., Nov. 13, 2017, available at
:

Moreover, NCDOT is actively planning for the advent of AVs outside the Complete 540
NEPA process. NCDOT is considering the effect AVs will have on funding upcoming
projects.41 The agency continues actively to encourage the adoption of autonomous vehicles,
citing reduction of congestion as a possible benefit.42 It has dedicated significant resources to
AVs, including hiring an engineer whose entire career will be focused on the transition to
autonomous vehicles.43 NCDOT officials have expressed a desire to work with AV
manufacturers on building road networks which will support AVs in the future.44 Indeed,
following NCDOT's acceptance into the USDOT pilot program for AVs,45 the agency is
allowing AV companies to use the existing 540 toll road as a testing ground for the technology.46
The North Carolina General Assembly recently passed legislation regulating AVs47 apparently
hoping to encourage AV testing within the state while laying the foundation for North Carolina
to attract major components of the AV industry.48 In addition, stakeholders who have been
http://www.lo isg ticsmgmt.com/article/next�en_supply chain with kevin lacy north carolina_department_of trans
o�rt. Attachment 24.
ao Cadie Thompson, Elon Musksays Tesla will launch its cross-country road trip in a self-driving car in 3 to 6
months, Bus. INSIDEx (Feb. 7, 2018, 7:25 PM), http://www.businessinsider.com/elon-musk-tesla-road-trip-in-
autonomous-car-mid-2018-2018-2. Attachment 25.
a' See Gary D. Robertson, NCDOT Chief.• Electric, driverless cars could dry up road funds, U.S. NEws & WoxLn
RF,P. (Oct. 2, 2017, 6:42 PM), available at https://www.usnews.com/news/best-states/north-carolina/articles/2017-
10-02/dot-chief-electric-driverless-cars-could-dry-up-road-funds. Attachment 26.
42 Joe Hummer, PowerPoint Presentarion: NCDOT Autonomous Vehicle Roadmap Policy, slide 5(Apr. 26, 2017),
https://connect.ncdot.,gov/proj ects/planning/TPB%20Mode1%20User%20Groups/07 NCMUG_2017-04-
26_Present_5 AV_NCRoadMapPolicy JHummer_NCDOT.pd£ Attachment 27.
a3 Gary Farger, NextGen Supply Chain with Kevin Lacy, North Carolina Department of Transportation, LoGISTICs
MGMT., Nov. 13, 2017, available at
http://www.logisticsm�mt.com/article/next�_suvplv chain_with_kevin_lac�north_carolina_department of trans
o�rt. Attachment 24.
44 Sara Svehla, NC wants "open dialogue" on possibility of driverless cars, TxE DA�[,Y TAx HEEL, Jan. 21, 2015,
available at http://www.dailytarheel.com/article/2015/O1/google-moves-forward-with-driverless-cars. Attachment
28.
as Lauren K. Ohnesarge, Officials: What we know about the self-driving vehicle testing program coming to the
Triangle ExpYessway, TRIANGLE BUs. J., Jan. 23, 2017, available at
https://www.bizj ournals.com/trian,gle/news/2017/O 1 /23/officials-what-we-know-about-theautonomous-
vehicle.html?s=print. Attachment 29.
46 Gary D. Robertson, NCDOT Chief.• Electric, driverless cars could dry up road funds, U.S. NEws& WoRLD REP.
(Oct. 2, 2017, 6:42 PM), available at https://www.usnews.com/news/best-states/north-carolina/articles/2017-10-
02/dot-chief-electric-driverless-cars-could-dr�p-road-funds. Attachment 26.
47 An Act to Regulate the Operation of Fully Autonomous Motor Vehicles on the Public Highways of this State,
2017 N.C. Laws S.L. 2017-166 (H.B. 469) (Dec. 1, 2017) (to be codified at N.C. GEN. STAT. Alvtv. §§ 20-18-400 to -
403), available at https://www.nclee.net/Sessions/2017/Bills/House/PDF/H469v7.pdf. Attachment 30.
48 Colin Campbell, Could driverless car regulations help attract testing to NC?, TxE NEws & OBSExvEx, Apr. 25,
2017, available at http://www.newsobserver.com/news/politics-�overnment/state-politics/article146718619.htm1,
Attachment 31; Richard Stradling, Self-driving cars are coming soon. Will North Carolina be ready?, The News &
Observer, Dec. O5, 2017, http://www.newsobserver.com/news/traffic/article188164719.htm1. Attachment 32.
0

actively involved with Complete 540 have expressed the importance of considering AVs in order
to make smart transportation improvements49 because of the impact they may have.so
Despite the clear evidence that AVs have the capacity to impact the primary purposes of the
proposed Complete 540 project and relative feasibility of other less damaging alternatives, the
FEIS fails to consider AVs at all. Failure to take a"hard look" at this key issue violates NEPA.
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971).
3. Delivery Drones
Drone technology has taken off in recent years, in turn popularizing recreational drone
use; 51 however, the devices also have huge potential as delivery vehicles and have already been
deployed for this purpose. Delivery company Flirtey made the first urban drone delivery in the
U.S. in Nevada in March 2016.52 In May 2016, DHL's parcelcopter made a delivery in the
Bavarian mountains more than three times as quickly as a delivery truck.53 Alphabet's (Google)
Project Wing began delivering Chipotle burritos to students at Virginia Tech in September
201654 and is expanding burrito delivery in Australia.ss Domino's Pizza made its first drone
delivery in New Zealand in November 2016.56 Amazon's "Prime Air" delivery service made its
first delivery in the U.K. in December 2016,57 and the company is testing drones in Canada,
United Kingdom, and the Netherlands.58 Amazon Prime Air will provide delivery within 30
a9 Natalie Griffith, How the Triangle can leverage new transportation tech, REG'L TxAlvsP. ALL�A1vCE BLOG, May
26, 2017, http://letsgetmoving.org/rta-blo /g triangle-can-leverage-new-transportation-tecl�/. Attachment 33.
so Lauren K. Ohnesorge, Officials: What we know about the self-driving vehicle testing pYogram coming to the
Triangle ExpYessway, TxrANGLE BUS. J., Jan. 23, 2017, available at
https://www.bizj ournals.com/triangle/news/2017/O 1 /23/officials-what-we-know-about-theautonomous-
vehicle.html?s=print. Attachment 29.
si See Richard Stradling, You may be able to fly your drones in most Raleigh city parks after all, THE NEWS &
OsSExvEx, Feb. 13, 2018, available at http://www.newsobserver.com/news/politics-
�overnment/article199917369.htm1, Attachment 34; Ian Frazier, The Trippy, High-Speed World ofDrone Racing,
TxE NEw Yo�x, Feb. 5, 2018, available at https://www.newvorker.com/ma�azine/2018/02/OS/the-tri�v-high_
s�eed-world-of-drone-racing. Attachment 35.
sz Kelsey D. Atherton, The First Urban Drone Delivery Just Happened In Nevada, POPULAIz SCL, Mar 25, 2016,
available at https://www.popsci.com/first-urban-drone-deliverv-successful. Attachment 36.
s3 Kelsey D. Atherton, DHL Delivery Drone Is Three Times As Fast As A Car, PoPULAR SCI., May 9, 2016,
available at https://www.popsci.com/dhl-delivery-drone-is-three-times-as-fast-as-car. Attachment 37.
54 Chipotle burrito drone delivery begins at Virginia Tech, WTKR.COM, Sept. 17, 2016, available at
hrip://wtkr.com/2016/09/17/ o�ogle-drones-will-deliver-chipotle-burritos-at-virginia-tech/. Attachment 38.
ss Nick Statt, Alphabet's Project Wing drones will deliver burritos to Australian homes, THE VERGE (Oct. 16, 2017),
https://www.theverge.com/2017/10/16/16486208/alphbet-goo l�e-project-wing-drone-delivery-testing-australia.
Attachment 39.
56 Andrew Meola, Shop online and get your items delivery by a drone delivery service: The future Amazon and
Domino's have envisioned for us, BUS. INSIDEx (Jul. 18, 2017), http://www.businessinsider.com/deliverv-drones-
market-service-2017-7. Attachment 40.
57 Amazon Prime Air, AMAZOtv.COM, INC., https://www.amazon.com/Amazon-Prime-Air/b?node=8037720011 (last
visited Feb. 14, 2108). Attachment 41.
58 Dave Gershgorn, We Now Know Where Amazon Will Be Testing Their Delivery Drones, PoPULAR SCL, Feb. 1,
2016, https://www.popsci.com/we-now-know-where-amazon-will-be-testin�-their-delivery-drones. Attachment 42.
10

minutes and the company expects Prime Air drones to become "as normal as seeing mail trucks
on the road."s9
Future congestion in the project area may be alleviated by the future deployment of
delivery drones. Analysts expect drones primarily to reduce delivery time and costs at the "last
mile" between a distribution center (or restaurant) and a customer's home; however, drones may
also increase efficiency in supply chain deliveries.60 Drones themselves will of course avoid
traffic,61 and they are expected to ease congestion.62 Delivery drones also will likely reduce
greenhouse gas emissions compared to diesel delivery trucks, depending on factors such as
warehouse usage and the cleanliness of the grid charging the drones.63 NCDOT has been
"researching and investing in drone technology for years." 64 The agency has submitted a
proposal to the Federal Aviation Administration for done medical supply delivery,65 and plans to
use drones in natural disaster response.66 NCDOT already has established regulations for
commercial drone use.67 And just a few weeks ago, the North Carolina Board of Transportation
heard from North Carolina-based drone company Precision Hawk about its technologies and
predictions for increasing drone use in coming years.68 Clearly, NCDOT sees the benefits
delivery drones may bring and is expecting their use. As the agency considers options for
Complete 540 it should be considering how the increased use of drones, alongside other
technologies, will alter the transportation picture going forward.
s9 Amazon PYime Air, AlvtAzoN.Colvt, INC., https://www.amazon.com/Amazon-Prime-Air/b?node=8037720011 (last
visited Feb. 14, 2108). Attachment 41.
60 Jonathan Camhi, The Drone DeliveYy Report: Opportunities and challenges in automating logistics with drones,
Bus. INSIDEx (May 18, 2017), http://www.businessinsider.com/the-drone-delivery-report-o�portunities-and-
challenges-in-automating-lo�istics-with-drones-2017-5. Attachment 43.
61 See Hugo Gye, Now that's a special delivery: Domino's builds DRONE to deliver pizzas by air and beat the
tra�c, D.�LY M.�L (June 5, 2013, 10:38 AM), http://www.dailvmail.co.uk/news/article-2336324/Dominos-builds-
DRONE-deliver-pizzas-air-beat-traffic.html. Attachment 44.
62 See Ben Farmer, Drones to tackle traffic and deliver medical supplies in UK cities, TxE TELEG�x, Nov. 27,
2017, http://www.telegraph.co.uk/news/2017/11/27/drones-tackle-traffic-deliver-medical-su�lies-uk-cities/.
Attachment 45.
63 Joshuah K. Stolaroff, et al., Energy use and life cycle greenhouse gas emissions of drones for commercial package
delivery, 9 NA'r[7� Co1v11v1c'tvs 409, Feb. 13, 2018, available at hrips:Uwww.nature.com/articles/s41467-017-
02411-5. Attachment 46.
64 Press Release: NCDOT Proposes Drone-Based Medical Supply Delivery, N.C. DEP'T oF T1tANSP., Feb. 5, 2018,
https://a�ps.ncdot.gov/newsreleases/details.aspx?r=14824. Attachment 47.
6s press Release: NCDOT Proposes Drone-Based Medical Supply Delivery, N.C. DEP'T oF T�tvsP., Feb. 5, 2018,
https://a�ps.ncdot.gov/newsreleases/details.aspx?r=14824. Attachment 47.
66 NCDOT using drones as new tool for natural disaster response, WAVY.COM (Sept. 1, 2017, 11:11 PM),
http://wavy.com/2017/09/O1/ncdot-using-drones-as-new-tool-for-natural-disaster-response/. Attachment 48.
67 Commercial Operators, N.C. DEP'T oF TxAtvsP., https://www.ncdot.�ov/aviation/uas/operators/ (last visited Feb.
14, 2018). Attachment 49.
68 Agenda, Economic Development and Intergovernmental Relations Committee, Board of Transportation, Jan. 31,
2018. Attachment 50.
11

III. A BETTER ALTERNATIVE
Rather than stay glued to this outdated vision of the past, the Conservation Groups
recommend a different solution. The Groups have worked with expert transportation planner
Walter Kulash to develop an alternative focused on upgrades to the existing infrastructure�n
approach that can be taken incrementally over time as traffic congestion worsens. This solution
has the benefit of being open to all users, not just those able to pay a pricey toll. The alternative
is named "ACCESS2040." Mr. Kulash's full report is set out in full in Attachment 168. The
alternative is however, summarized briefly below.
The objectives of ACCESS2040 are to:
1. Achieve most of the benefits (mobility, congestion relief and regional connectivity) of
Complete 540 at a fraction of its cost and environmental impact.
2. Attain objectives of mobility, congestion relief and regional connectivity by augmenting
projects already recommended in plans adopted by the Capital Area Metropolitan
Planning Organization (CAMPO).
Important secondary objectives of ACCESS2040 are to:
3. Create transportation solutions for a wide range of users.
4. Guide the suburban growth in Southern Wake County into sustainable patterns.
ACCESS2040 starts with a foundation of 52 projects selected from the 2040 Metropolitan
Transportation Plan ("CAMPO MTP") adopted by the North Carolina Capital Area
Metropolitan Planning Organization ("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 create continuous multi-lane
arterial routes across southern Wake County in both the east-west and north-south directions.
The improvements would form seven arterial (road or street) corridors. Upgrading these
corridors would yield both: (1) increased all-mode capacity for local trips (within the study area);
and (2) increased connectivity for external travel (trips with origin, destination or both outside
the study area). East-west regional connectivity, an important purpose of the Complete 540
project, would be served by three corridors.
ACCESS2040 anticipates an increase in transit travel as projected by the Wake County
Transit Plan and the GoRaleigh five-year transit improvement plan. ACCESS 2040 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
12

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.69 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%.70 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. At the same time, while not producing the exact same result as a
$2.2 billion new-location 70 mile per hour toll freeway, the alternative would 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, the Transportation Agencies must take
a hard look at this solution, which is likely to be the Least Environmentally Damaging
Practicable Alternative for purposes of Section 404 of the Clean Water Act.
IV. THE ILLEGAL NEPA ANALYSIS
In January 2016 the Conservation Groups submitted significant concerns about the DEIS.
As noted above, the Transportation Agencies failed to adequately consider these comments. The
vast majority of the concerns remain unaddressed, as noted below. The FEIS and supporting
documents present a number of additional legal problems. The deficiencies and inconsistencies
in the Transportation Agencies' analyses are discussed in detail below.
1. The Statement of Purpose and Need is Arbitrary and Capricious
As noted in the previous comments, the Statement of Purpose and Need is essential to the
NEPA process because it guides the agencies' scope of review. 40 C.F.R. § 1502.13. As stated
by the United States Court of Appeals for the Fourth Circuit, "[o]nly alternatives that accomplish
the purposes of the proposed action are considered reasonable, and only reasonable alternatives
require detailed study. So how the agency defines the purpose of the proposed action sets the
contours for its exploration of available alternatives." Webster v. U.S. Dep't ofAgric., 685 F.3d
69 First Tier Concepts Screening and Traffic Reassessment at Tbls 2-8 (2017).
70 Id. at Tbl. 3.
13

411, 422 (4th Cir. 2012). Because the Statement of Purpose and Need forms the basis upon
which to compare alternatives, an agency is not permitted "to contrive a purpose so slender as to
define competing `reasonable alternatives' out of consideration." Simmons v. U.S. Army Corps of
Eng'rs, 120 F.3d 664, 666 (7th Cir. 1997). Despite this key role, many of the previously
identified concerns about the Statement of Purpose and Need for Complete 540 remain and
others have emerged.
A. The Preferred Alternative Does Not Meet One of the Two Stated
Primary Purposes for the Project
Perhaps the single biggest revelation in the FEIS is the fact that the preferred alternative
does not, in fact meet one of the two stated primary purposes for the project. The FEIS states:
Two primary purposes have been established for the Complete 540 project, based
on general transportation problems in the Raleigh area and specific, more
localized needs. 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.�'
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 a1L This straightforward truth
has been hidden from the public by NCDOT, who in public, disingenuously claim without
support that "You can expect travel speeds to increase by 8 percent and more on arterials."72
The DEIS screened for the congestion relief purpose with three different "Measures of
Effectiveness" ("MOE"s). The Conservation Groups discussed at length in previous comments,
and reiterate again below how this general screening concept is utterly arbitrary. The three
MOEs employed to assess alternatives 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."73 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.74 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
�' FEIS at 7, emphasis added.
�� Community Meetings Will Provide Info on NC 540 Extension, WRAL.CONt (Feb. 20, 2018, 5:52 P1V�, available at
http://www.wral.com/community-meetings-will-provide-info-on-nc-540-extension/17357806/ (when asked by
counsel for the Conservation Groups to identify what this 8% improvement figure referred to, Mr. Rochelle was
unable to identify his source). Attachment 51.
73 2004 Alternatives Development and Analysis Report at 2-8
74 Alternatives Development and Analysis Report (May 2014) at 2-12 - 2-18 (noting that the measures were
calculated using the TRM).
14

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, however, 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.75 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.76
Moreover, when compared to existing conditions, forecasts for the preferred alternative show
reduced speeds and increased congestion for nearly every road link studied.�� 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, as NEPA requires.
The Transportation Agencies' error and obfuscation is further compounded by their utter
failure to address significant concerns raised about this topic during the DEIS review as the
Conservation Groups and others attempted to get to the bottom of what impact the project would
have on existing roadways. The issue was raised at the public hearing and was set forth in
person during a question and answer session with Bradley Reynolds on December 8, 2015.
Attorneys for the Conservation Groups were directed by NC Turnpike Authority staff to Mr.
Reynolds as the correct person to answer questions about traffic forecasts. When the attorneys
asked Mr. Reynolds what travel time savings would accrue to travelers who plan to continue
using existing roads he stated that this issue had not been studied.'g
Worse, in response to the Conservation Groups' written comments on this topic, the
Transportation Agencies directed the Groups to "page 54 of the Community Impact
Assessment."79 Here, the Conservation Groups were informed, it is explained that "drivers who
do not use the roll road would nonetheless benefit from reduced congestion on existing roadways
as a result of trafiic diversion onto the new roadway. Drivers who elect to use the toll road would
be removed from the non-toll network, which would indirectly benefit the users of the non-toll
network." This argument is also used to justify why the project would not have any negative
impact on low-income or environmental justice communities. The response, and the Community
75 Quantitative ICE Report 75.
76 Quantitative ICE Report 77.
�� Quantitative ICE Report 75-79.
78 See Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 35 n.171 (Jan. 8,
2016). Attachment 52.
79 Final Stakeholder Involvement Report at Response 69 to SELC Comments (2017).
15

Impact Assessment itself, is not just misleading, but wrong. The Quantitative ICE makes clear
that in fact there will not be benefits to drivers who do not use the toll road. For many users
commutes will, in fact, become more congested.
The Transportation Agencies may argue that while the preferred alternative will make
key corridors more congested, overall the entire FLUSA will see congestion reduction.80 This
argument is unavailing for several reasons. First, the ICE study notes that the FLUSA-level
congestion reduction is the result of relief on "many minor TRM links not identified as a major
corridor."gl 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 50,82 and future poor levels of congestion on Ten-Ten Road and segments of US 1/64.83
In the very next paragraph, the Transportation Agencies 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."84 And yet the Quantitative ICE study shows that the preferred
alternative will actually result in more congestion on many of these exact roads.85
Finally, and most importantly, 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 does not fulfil the core task of NEPA—i.e. to compare a variety
of alternatives and see how they meet the stated purpose and need. As noted above, and as
illuminated by the results of the Quantitative ICE, the original MOE screening was entirely
inadequate for this purpose. To comply with NEPA, the Transportation Agencies must go back
and screen a reasonable range of alternatives, including upgrade alternatives like ACCESS2040,
80 ICE Report 74.
81 ICE Report 75.
82 Purpose and Need Statement 3.
83 Purpose and Need Statement 4.
A4 Purpose and Need Statement 11. 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.
85 See Quantitative ICE Report 75 (Table 35, showing that the Preferred Alternative will see increased congestion
over a"no build" scenario on a variety of roadways including I-40).
16

and determine how they will meet the very specific stated purpose of improving forecast
congestion on existing roadways.
NEPA does not mandate the selection of any particular alternative; however, NEPA does
require a comprehensive hard look at a reasonable range of alternatives, "and it must be taken
objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge
designed to rationalize a decision already made." Forest Guardians v. USFWS, 611 F.3d 692,
712 (lOth Cir. 2010). The analysis presented to date has failed to live up to this mandate.
B. The Statement of Purpose and Need Was Developed Using Old Data
In previous comments, the Conservation Groups noted that the purpose and need for the project
was developed based on an outdated 2008 model using stale 2008 traffic data.86 In response, the
Agencies state that the 2008 model was the officially approved model at the time of first-tier
screening in 2008. While this may be true, it is now a decade later and the Transportation
Agencies have a responsibility to, at the very least, determine whether their reliance on that
outdated data is still valid. See 1000 Friends of Wisconsin, Inc. v. USDOT, No. 11-C-0545, 2015
WL 2454271, at *7-8 (E.D. Wis. May 22, 2015) (agencies violated NEPA by failing to explain
impact of updated demographic data, when new data could make discarded alternative viable);
Dow AgroSciences LLC v. Nat'l Marine Fisheries Ser-v., 707 F.3d 462, 472 (4th Cir. 2013)
(Defendants acted arbitrarily and capriciously because they "never adequately explained why
[they] relied on older data despite the existence of new data and the potential drawbacks of using
the older data."); Western Watersheds Project v. Abbey, 719 F.3d 1035, 1052 (9th Cir. 2013)
("[A]n agency errs when it relies on old data without showing that the data remain accurate.").
The Transportation Agencies admit that there is more current data available, the TRM VS and
TRM V6, which were used for the 2016 Complete 540 Preferred Alternative Traffic Forecast.
The agencies have a responsibility to ensure that the purpose and need for the project remains
valid based on this updated dataset.
C. The Statement of Purpose and Need is Impermissibly Narrow and
Favors a Toll Highway Over Any Other Alternative
The Agencies failed entirely to respond to the Conservation Groups' concern that the
stated purpose and need for the project was impermissibly narrow. The Transportation
Agencies' "secondary purpose" is articulated as improving system linkage in the regional
roadway network "by completing the 540 outer loop around the greater Raleigh area."87 This
purpose is contrary to FHWA guidelines, which disapprove of linking roads for no purpose other
than to link them. Moreover, the purpose is impermissible in that it results in the foregone
conclusion that the alternative that the Transportation Agencies would select would be a highway
completing the 540 Outer Loop.gg The Agencies only responded that alternatives were not
86 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 4-5 (Jan. 8, 2016).
Attachment 52.
87 Id. at 6. Attachment 52.
88 Id. at 7. Attachment 52.
17

screened out solely for failure to meet this secondary purpose.89 This response does nothing to
address SELC's comments that the secondary purpose is contrary to FHWA guidelines and
demonstrates an impermissibly narrow focus.
V. THE ALTERNATIVES ANALYSIS IS ARBITRARY AND CAPRICIOUS
NEPA requires that agencies "[r]igorously explore and objectively evaluate all reasonable
alternatives." N.C. Wildlife Federation, 677 F.3d at 602 (citing 40 C.F.R. § 1502.14(a)). In turn,
"[a]ccurate scientific analysis, expert agency comments, and public scrutiny are essential to
implementing NEPA." 40 C.F.R. § 1500.1(b). Such accuracy ensures that agencies take a"hard
look" at environmental effects of proposed projects and that relevant information is available to
the public. Glickman, 81 F.3d at 445-46 (holding that the economic assumptions underlying an
EIS are subject to "narrowly focused review" to determine whether they "impair[ed] fair
consideration of a project's adverse environmental effects"). Moreover, agencies have a duty to
"insure the professional integrity, including scientific integrity, of the discussions and analyses in
environmental impact statements." Id. § 1502.24. The alternatives analysis, supported by
thorough scientific, expert, and public review, is intended to be the "heart" of the impact
statement. Id. § 1502.14. Despite this mandate, the DEIS only offers one true alternative:
building an expensive, environmentally-destructive toll highway that completes the 540 Outer
Loop.
1. An Arbitrary Screening Process
As noted above and in our 2016 comments, the first-tier alternatives screening process in
the DEIS relied heavily on a misleading MOE process. Not only did the MOE process use a
misleading methodology to calculate congestion relief on existing roadways, but it arbitrarily
exaggerated minor differences between project alternatives in order to eliminate alternatives the
Transportation Agencies did not want to move forward.90 In response to this critique, the
Transportation Agencies contended that the Conservation Groups' comment inappropriately
focused on average daily speed and travel times to the exclusion of other MOEs. Not only does
this response fail entirely to address the Conservation Groups' fundamental point, it overlooks
the fact that these MOEs are key to an examination of which alternatives will meet the stated
purpose and need.
The Agencies contend that the MOE ranking system was intended to avoid setting
arbitrary thresholds.91 But the system employed by NCDOT just replaced arbitrary thresholds
with an arbitrary ranking system. Miniscule differences in MOE scores resulted in different
rankings and the Transportation Agencies just blindly applied these ranking numbers to reject
alternatives without any investigation into whether these differences were meaningful. In other
words the ranking system in effect directly avoids meaningful analysis. Accordingly, the
Transportation Agencies' secondary argument that all alternatives were subjected to the same
analysis is also unavailing, because the analysis itself is flawed.
89 Final Stakeholder Involvement Report at Response 17 to SELC Comments (2017).
90 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 8-9. Attachment 52.
91 Final Stakeholder Involvement Report at Responses 20, 31 to SELC Comments.
:

2. The Scale of the Project Has Not Been Justified
In addition to failing to look at alternatives to the Complete 540 concept, NCDOT has
failed entirely to consider and therefore to justify why a six-lane highway is necessary. Forecast
traffic volumes for the freeway average just 42,000 per day—a volume that does not justify
either six lanes or a 70 foot median. Rather, a four lane highway would be sufficient to meet the
projected level of traffic.
3. Multi-Modal Transportation Was Not Adequately Considered
The Conservation Groups' comments on the DEIS emphasized that the Agencies unfairly
and summarily dismissed mass or multimodal transit by asserting without support that buses may
increase travel times due to frequent stops and similar unsupported assertions.92 The Agencies
did not respond to this comment.
The Conservation Groups also noted that the Agencies asserted without support that an
increase in mass transit would be too costly and would exceed the amount recovered from fares,
when the Agencies are instead planning a project that will cost over $2 billion and lacks financial
plans to support it.93 SELC explained that "[w]ithout 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 ."94 The Transportation Agencies chose not to respond to this
final sentence. Rather, the Transportation Agencies responded that there was no connection
between financing the toll highway and financing additional buses.95 This misses the point--
Conservation Group's concern was that dismissing mass transit as too expensive and unfunded is
entirely arbitrary given Complete 540's funding situation.
The FEIS persists in the same biased and inadequate review of mass transit or a
combination of mass transit, park and ride options, TDM or TSM strategies. In particular, the
FEIS fails to evaluate the projected increases in mass transit due to the recently-adopted Wake
County Transit Plan, which will add new bus routes and increase frequency of existing routes
throughout Wake County. The plan also calls for a commuter rail line from Garner to Durham
and many bus rapid transit projects. During its first 10 years, the Wake County Transit Plan
anticipates spending a significant $23 billion on transit improvements to triple bus service,
invest in commuter rail, and establish bus rapid transit infrastructure.96 These substantial
increases in mass transit availability are expected to in turn spur greater ridership throughout the
County and alter commuting behavior,97 thus reducing traffic and calling into question the need
9z Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 19. Attachment 52.
93Id. Attachment 52.
94 Id. at 20. Attachment 52.
9s Final Stakeholder Involvement Report at Response 40 to SELC Comments.
96 JARRETT WALKER + ASSOCIATES & KIMLEY HORN, WAKE TRANSIT PLAN: A WAKE COUNTY TRANSIT
INVESTMENT STRATEGY REPORT 3(2016). Attachment 53.
97 Id. Attachment 53.
19

for the Complete 540 project. Such a significant expansion of mass transit within the project
study area—costing the same amount as the Complete 540 project itself is anticipated to cost—
warrants evaluation by the Transportation Agencies in relation to Complete 540.
The FEIS further failed to evaluate any impacts that construction of the toll highway
would have on implementation of the Wake County Transit Plan and transit ridership. The FEIS
also failed to consider how transit vehicles may be able to use the toll road, whether they will be
required to pay tolls, and whether park and ride lots may be built at exits to encourage mass
transit use.
4. The Alternatives Analysis Fails to Analyze Traffic Patterns and Potential
Travel Time Savings
In previous comments, the Conservation Groups noted that the DEIS did not address two
fundamental questions key to assessing alternatives: namely, where travelers in the project study
area are going and how the alternatives will help them.98 In response, the Transportation
Agencies simply stated that the project purpose does not draw a distinction between local and
through traffic.99 The origin and destination of travelers is key, however, to assessing project
alternatives. If, for example, the majority of trafiic is local rather than through traffic then non-
highway alternatives such as increased mass transit will be able to play more of a role in
increasing mobility and reducing congestion. Similarly, alternatives such as ACCESS2040
which focus on upgrades to the local road system will be more effective for local traffic than for
travelers looking simply to pass through the county on a single high speed roadway. The
Transportation Agencies' failure to consider this issue constitutes a failure to take a"hard look"
under NEPA. Furthermore, the Transportation Agencies' lack of interest in understanding the
traffic problem they are seeking to address further demonstrates their narrow, predetermined
focus on simply "completing" the 540 Outer Loop.
In comments on the DEIS, the Conservation Groups highlighted Transportation
Agencies' wholly unsupported claim that the Complete 540 project would reduce travel times by
10 minutes or more.ioo In response, the Transportation Agencies admit that not all travelers will
always save ten minutes.
Documents attached to the FEIS illustrate that travel time savings will be even smaller
than previously anticipated. Just as with the DEIS, the Transportation Agencies again bury this
key piece of information in an appendix to a technical report. The tables in the Appendix
continue to show great variation in the travel time savings for various representative trips within
the project area—but the savings are overwhelmingly slim. Considering a11264 trips represented
in the tables, the average amount of time saved when the 2040 No-Build ICE scenario is
compared to the 2040 Preferred Alternative Build Scenario is 3.08 minutes�.36 minutes slower
than the estimated time savings in the DEIS. Notably, trips during the peak morning hours
98 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 12. Attachment 52.
99 Final Stakeholder Involvement Report at Response 23 to SELC Comments; see also Community Impact Study
48-55 (2015) (reviewing community and environmental justice impacts in terms of relocations only).
ioo Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 12. Attachment 52.
20

would save an average of only 2.75 minutes, while the time-savings in the peak evening hours
would average 3.4 minutes. Though the average morning time savings saw an increase of a
minute from the DEIS to the FEIS, the average evening time savings saw a decrease of 1.73
minutes. A full third of all trips studied would not experience any time savings at all, and, in
fact, 15.2% of the trips would see their expected travel times increase. Fully half of the trips
would see less than a minute saved, and 233, or 88.3% of the trips, would see less than 10
minutes saved. Even if the trips with at least 1 minute or more of time-savings are isolated, of
which there are 121, the average time saved for the remaining trips is 6.7 minutes. And even
then, while 264 representative trips are analyzed, there is no indication of which trips are most
popular. In other words, there is no explanation or analysis of what percentage of commuters
travel between any given origin and destination point, thus limiting the utility of the travel time
savings estimates. The trip pairs with the highest travel time savings are between Holly Springs
and Knightdale, Eastern Wake County, or Clayton, but despite repeated questions from the
Conservation Groups, the Transportation Agencies have performed no investigation into how
many travelers currently travel these routes, or how many are anticipated to do so in the future.
Without this information, the selection of the preferred alternative and analysis of alternatives is
completely arbitrary and without a rational basis.
Given the high cost of the project, it is essential that decision-makers understand who is
actually likely to pay a toll to use it. And despite the Transportation Agencies' argument to the
contrary, FHWA has suggested in the past that it is appropriate to assess the economic efficiency
of a project.101 To do so more information is required: who is going to use the road and what
benefit will they get?
5. The Alternatives Analysis is Based on Arbitrary Traffic Forecasting
Methodology
The alternatives analysis in the FEIS 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.102 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" cases, 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
'o' See Memorandum from Polly Trotenberg, Asst. Sec. of Transp. Pol'y, Fed. Highway Admin., to Secretarial
Officers and Modal Administrators on Revised Departmental Guidance on Valuation of Travel Time in Economic
Analysis 19, 21 (Sept. 28, 2011) (measuring value of travel time savings in dollars per person-hour), available at
https://www.transportation.gov/sites/dot.dev/files/docs/vot_guidance_0928llapdf. Attachment 54.
ioz project Level Traffic Forecast 2(2016).
21

within the study area will be 1.5-2 times the comparable rates for the region.lo3 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.
The significant differences in modeled results versus observed counts present in table 15
of the Traffic Forecast report require further explanation.lo4 While some variation is expected,
the large gulfs between the numbers call into question the validity of one or both data sets.
6. The Alternatives Analysis Ignores the Phenomenon of Induced Traffic
In previous comments, the Conservation Groups outlined at length how the statement of
purpose and need was created using a methodology that has been determined illegal by a long
line of federal courts, including most recently the U.S. District Court for the Eastern District of
North Carolina. See Catawba Riverkeeper Found. v. N.C. Dep't of Transp., No. 5:15—CV-29—D,
2015 WL 1179646 (E.D.N.C. Mar. 13 2015). Evidently FHWA agreed with this concern,
noting that at the very least "a sensitivity analysis or some other agreed upon evaluation method
may be required to determine how the latest approved traffic model and socioeconomic data
should be used prior to the conclusion of the NEPA process."los
The FEIS attempts to partially fix this error by reviewing travel time savings and other
traffic forecasts as compared to an "ICE no build" condition. While this is an important step in
the right direction, there is more that must be done. First, the step is too little too late. The
Transportation Agencies should have used this information earlier in the process when they, and
the public, were screening alternatives. Second as noted blow in Section VI(5), the ICE analysis
is fundamentally flawed and therefore the revised traffic assessments are too.
VI. THE ANALYSIS OF ENVIRONMENTAL IMPACTS WAS ARBITRARY AND
CAPRICIOUS
The Transportation Agencies' preferred alternative 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 corresponds to destructive indirect and cumulative
impacts through shifting traffic and land use patterns. This project would also negatively impact
low-income communities and communities of color—impacts which were not adequately
evaluated by the Transportation Agencies.
1. The FEIS Does Not Adequately Evaluate Environmental Justice Impacts
`Bnvironmental justice" ("EJ") 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.lo6 With roots in the Civil Rights
'03 Id. at tbl. 16.
ioa Id. at tbl. 15.
ios E-mail from Clarence Coleman, FHWA, to Kiersten Bass, HNTB, et al. (Dec. 5, 2014 2:04 PM). Attachment 55.
l06 See Environmental Justice, U.S. ENVT'L PROT. AGENCY, https://www.epa.,gov/environmentaljustice (last visited
Feb. 12, 2018). Attachment 56.
22

Movement of the 1960s, environmental justice was established as a legal concept in the late
1970s,107 and took hold as a movement with the 1982 protest of a polychlorinated biphenyl
(PCB) landfill in Warren County, North Carolina.108 Over the following decades, recognition of
EJ's importance has grown, although progress has been too slow in practice.lo9
A. The Transportation Agencies Were Required to Review EJ Impacts
In 1994, President Clinton signed Executive Order 12898 the federal government's
responsibility to address EJ."o The Order requires federal agencies, to the greatest extent
practicable to "make achieving 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.""'
In keeping with EO 12898, the U.S. Department of Transportation ("USDOT") maintains
both a department-wide order on environmental justice and an environmental justice strategy.
According to USDOT Order 5610.2(a),
It is the policy of DOT to promote the principles of environmental justice (as embodied
in the Executive Order) through the incorporation of those principles in all DOT
programs, policies, and activities. This will be done by fully considering environmental
justice principles throughout planning and decision-making processes in the development
of programs, policies, and activities, using the principles of the National Environmental
Policy Act of 1969 (NEPA), Title VI of the Civil Rights Act of 1964 (Title VI) [and other
laws and regulations.]"Z
'o' See Bean v. Sw. Waste Mgmt. Corp., 482 F. Supp. 673, 674 (S.D. Tex. 1979).
ioa See Environmental Justice, U.S. ENVT'L PROT. AGENCY, https://www.epa.gov/environmentaljustice (last visited
Feb. 12, 2018). Attachment 56.
109 See, e.g., Vann R. Newkirk II, Fighting Environmental Racism in North Carolina, TxE NEw YO�x, Jan. 16,
2016, https://www.newvorker.com/news/news-desk/fightin�-environmental-racism-in-north-carolina. Attachment
57.
iio Exec. Order No. 12,898 § 1-101, 59 Fed. Reg. 7629, 7629 (Feb. 11, 1994), available at
https://www.archives.gov/files/federal-re,gister/executive-arders/pdf/12898.pdf, Attachment 58; see also Cot�lciL
ON ENVT'L QUALITY, ENVIRONMENTAL JUSTICE: GUIDANCE UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT
(1997), available at https://www.doi.gov/sites/doi.gov/files/migrated/pmb/oepc/upload/EJ-under-NEPA.pdf,
Attachment 59; N.C. DEP'T OF ENVT'L QUALITY, 1 GUIDANCE FOR ASSESSING INDIRECT AND CUMULATIVE IMPACTS
OF TRANSPORTATION PROJECTS IN NORTH CAROLINA I-28 to I-30 (2001), available at
https://connect.ncdot. gov/resources/environmental/compliance%20euides%20and%20procedures/volume%2001 %2
Oassessment%20�uidance%20polic.%port.pdf, Attachment 60.
"' Id. Attachment 60.
11z U.S. DEP'T OF TRANSP., DOT-OST-2O12-044, DEPARTMENT OF TRANSPORTATION UPDATED ENVIRONMENTAL
JuST�CE Ox�Ex 5610.2(a) , available at
https://www.fhwa.dot.gov/environment/environmental iustice/ej_at dot/orders/order 56102a/dot56102a.pdf.
Attachment 61.
23

USDOT and other agencies entered a Memorandum of Understanding on Environmental
Justice and Executive Order 12898 in which they agreed to periodically review and update their
EJ strategies.113 The USDOT released an updated strategy in November 2016.114 According to
the USDOT's updated EJ strategy, the agency's guiding EJ principles are the following:
To ensure the full and fair participation by all potentially affected communities in the
transportation decision-making process;
To avoid, minimize, or mitigate disproportionately high and adverse human health and
environmental effects, including social and economic effects, on minority or low-income
populations; and
To prevent the denial of, reduction in, or significant delay in the receipt of benefits by
minority or low-income populations.l ls
The USDOT's responsibility to ensure compliance with EO 12898 is not affected by
NCDOT's assumption of primary responsibility for a project.116 In addition, FHWA maintains a
separate directive on EJ in order to carry out its "longstanding policy to actively ensure
nondiscrimination in federally funded activities."ii' Recipients of federal funds,iig including
NCDOT,19 are required to abide by EO 12898. NCDOT also encourages public participation in
transportation planning to ensure environmental justice is incorporated into decisions about
transportation policy and projects.12o
� 13 ERIC H. HOLDER, ET AL., MEMORANDUM OF UNDERSTANDING ON ENVIRONMENTAL JUSTICE AND EXECUTIVE
OR�Ex 12898, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-mou-2011-08.pdf.
Attachment 62.
14 Environmental Justice Strategy, U. S. DEP''r OF TxA1vSP. (Nov. 15, 2016),
https://www.transportation.gov/policv/transportation-policv/environmental-justice-strategy. Attachment 63.
"s Id. Attachment 63.
116 STEWARDSHIP AND OVERSIGHT AGREEMENT ON PROJECT ASSUMPTION AND PROGRAM OVERSIGHT BY AND
BETWEEN FEDERAL HIGHWAY ADMINISTRATION, NORTH CAROLINA DIVISION AND THE NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION 5(May 12, 2017), available at
https://connect.ncdot. gov/proj ects/Roadway/RoadwayDesignAdministrativeDocuments/FHWA%20and%20NCD0
T%200versi,ght%20Agreement.pd£ Attachment 64. See 23 U.S.C. § 106(c); see also FEIS 17 (acknowledging
applicability of Exec. Order 12,898).
117 FED. HIGHWAY ADMIN, ORDER 664O.23A, FHWA ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY
POPULATIONS AND IAW-INCOME POPULATIONS (2012), available at
https://www.fhwa.dot.�ov/le�sregs/directives/orders/664023a.pdf. Attachment 65.
"A See Brenda C. Kragh, et al., FHWA-HRT-16-003, Environmental Justice: The New Normal for Transportation,
79 PuB. Ro�s 5(2016), https://www.fhwa.dot.gov/publications/publicroads/16marapr/02.cfm. Attachment 66.
19 Title VI Nondiscrimination Program, N.C. DEP'T OF TxA1vSP., https://www.ncdot.�ov/programs/titleVI/ (last
visited Feb. 11, 2018). Attachment 67.
izo Toolkit Resources, N.C. DEP'T OF TxA1vSP.,
https://connect.ncdot. gov/proj ects/toolkit/Lists/ToolKitResources/DispForm.aspx?ID=85108&ContentTyp eId=0x01
004BE04D804DOA8A49BA2BEDFA43E08771 (last visited Feb. 11, 2018). Attachment 68.
24

Separately, both agencies also must comply with Title VI of the Civil Rights Act and may
not conduct a highway project in a way that discriminates based upon race, color, and national
origin.121 Title VI defines a program or activity as "all of the operations of ... a department,
agency ... or other instrumentality of a State or of a local government ... any part of which is
extended Federal financial assistance." 42 U.S.C. § 2000d-4a. Accordingly, if any part of a state
agency receives federal funds, the entire agency is covered by Title VL 122 NCDOT is a North
Carolina state agency123 and is a recipient of federal funds, iz4
B. The EJ Impacts of Toll Roads
Transportation projects generally raise EJ concerns when minority or low-income
communities receive fewer benefits and may be disproportionately impacted by transportation
investments.125 The FHWA defines the "adverse effects" that may be suffered by EJ
communities as follows:
The totality of significant individual or cumulative human health or environmental
effects, including interrelated social and economic effects, which may include, but are not
limited to: bodily impairment, infirmity, illness or death; air, noise, and water pollution
and soil contamination; destruction or disruption of human-made or natural resources;
destruction or diminution of aesthetic values; destruction or disruption of community
cohesion or a community's economic vitality; destruction or disruption of the availability
of public and private facilities and services; vibration; adverse employment effects;
displacement of persons, businesses, farms, or nonprofit organizations; increased traffic
congestion, isolation, exclusion or separation of minority or low-income individuals
within a given community or from the broader community; and the denial of, reduction
in, or significant delay in the receipt of, benefits of FHWA programs, policies, or
activities.126
'�' 42 U.S.C. § 2000d; see Title VI of The Civil Rights Act of 1964 and Additional Nondiscrimination Requirements,
U.S. DEP'T OF TxAtvsP., https://www.fhwa.dot.gov/civilrights/programs/tvi.cfm (last modified Feb. 9, 2018),
Attachment 69; Title VI Nondiscrimination Program, N.C. DEP'T OF TxAlvsP.,
https://www.ncdot.gov/pro,grams/titleVU (last visited Feb. 11, 2018), Attachment 67.
'�� See Ratliff u Wake ForestBaptistMed. Ctr., Na 1:13CV991, 2014 WL 197809, at *2, *2 n3 (M.D.N.C. Jan. 14,
2014); See also U.S. DEP'T OF 7USTICE, TITLE VI LEGAL M.�vU.�, § V(C) (2017), available at
https://www.justice.gov/crt/fcs/T6manual5. Attachment 70.
123 See N.C. Gen. Stat. § 136-18.
iza FEIS 5(stating that Complete 540 project would include federal funding); see 49 C.F.R. § 21.23(�.
izs See JOLANDA PROZZI, ET AL., CTR. FOR TRANSP. RES. AT THE UNIV. OF TEX. AT AUSTIN, ASSESSING THE
ENVIIZONMENTAL 7USTICE IMPACTS OF TOLL ROAD PROJECTS 2(2010), available at http://ctr.utexas.edu/w�
content/uploads/pubs/0_6544_l .pdf (produced in cooperation with the Texas Department of Transportation and the
Federal Highway Administration), Attachment 71; see also Richard Lazarus, Highways and Biways for
Environmental Justice, 31 CUMB. L. REv. 569, 594 (2001) (stating that highway system in effect subsidizes those
who live farther from urban centers, raising Title VI concern when disproportionately disfavoring minority
residents), available at https://scholarship.law.�eorgetown.edu/c�i/viewcontent.c�i?artic1e=1537&context=facpub.
Attachment 72.
1z6 FED. HIGHWAY ADMIN, ORDER 6E4O.23A, FHWA ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY
PoPtn,AT�oNs � Low-INco1v1E PoPur,AT�oNs § 5( fl(2012) (defining "adverse effects"), available at
https://www.fhwa.dot. og v/le s�re,gs/directives/orders/664023a.pdf, Attachment 65. See also NAT'L Ac�Elv1Y oF
25

Tolls roads raise particular EJ concerns because the tolls themselves frequently
disproportionately impact minority or low-income communities. In addition, like other major
infrastructure projects, the roads impose a variety of proximity or footprint impacts that
frequently disproportionately impact minority or low-income communities. Both concerns are
discussed below.
C. The Inequitable Impact of Tolls
The cost imposed by a toll can have a number of economic impacts on users or potential
users of the tolled facility, including changes in road use patterns, mobility, accessibility, travel
reliability, trip-making behavior and trip purposes, disposable income and financial burden, and
disposable time.127 The degree to which these impacts will disproportionately affect low-income
and minority communities depends on a number of factors including how many lower-income
drivers will use the road, how many low-income drivers are priced out of discretionary trips, the
quality of available alternative transportation options, and how toll revenues are used.12g
Accordingly, as FHWA recognizes in its 2011 Environmental Justice Emerging Trends
and Best Practices Guidebook, "[c]onsideration of equity issues-such as who bears the burden of
road pricing charges, who benefits from improved mobility, and how the revenues are used-is
critical to ensure that road pricing programs effectively achieve environmental justice."129 As
such, "[a] region that is considering implementation of road pricing should undertake studies to
measure and assess potential impacts on disadvantaged communities at an early stage in the
planning process."13o FHWA provides multiple data tools for conducing EJ analyses.131
FHWA has recognized for at least a decade that tolls have inequitable impacts that should
be analyzed as environmental justice impacts under NEPA.132 In 2007, the metropolitan
planning organization (MPO) for the Dallas-Fort Worth area studied the environmental justice
SCI., EFFECTNE METHODS FOR ENVIRONMENTAL 7USTICE ASSESSMENT (2004�, available at
http://www.trb.org/PublicationsBlurbs/152430.aspx. Attachment 73.
1z� NAT'L ACADEMY OF SCI., ASSESSING THE ENVIRONMENTAL JUSTICE EFFECTS OF TOLL IMPLEMENTATION OR
R.�TE Cx.�vGEs: Gu�DEsoox.�vD TooLsox 2-3 (2018), available at http://www.trb.or�/Main/Blurbs/177062.aspx.
Attachment 74.
128 JOLANDA PROZZI, ET AL., CTR. FOR TRANSP. RES. AT THE UNIV. OF TEX. AT AUSTIN, ASSESSING THE
ENVIIZONMENTAL 7USTICE IMPACTS OF TOLL ROAD PROJECTS 2(2010), available at http://ctr.utexas.edu/w�
content/uploads/pubs/0_6544_l .pdf. Attachment 71.
129 U. S. DEP'T OF TRANSP., ENVIRONMENTAL JUSTICE EMERGING TRENDS AND BEST PRACTICES GUIDEBOOK (2O 11 �,
https://www.fhwa.dot.gov/environment/environmental iustice/resources/guidebook 2011/,�uidebook04.cfm.
Attachment 75.
'3o Id. Attachment 75.
13' Resources: EJ Links - Data Tools and Resources, FHWA,
https://www.fhwa.dot.eov/environment/environmental�ustice/resources/data_tools/ (last visited Feb. 12, 2018).
Attachment 76.
132 Regional Tolling Analysis Informs NEPA Assessment of Cumulative Impacts on Low-Income Populations:
Dallas-Fort Worth, Texas, FHWA,
https://www.fhwa.dot.gov/environment/environmental iustice/resources/ej_and_nepa/case_studies/case05.cfm (last
visited Feb. 13, 2018). Attachment 77.
26

impacts of the tolled highways and high-occupancy vehicle ("HOV") lanes in its long range plan
using a"Regional Tolling Analysis" ("RTA").133 The MPO used the RTA to model traffic
demand and the impact that tolling would have on EJ populations throughout the planning area.
FHWA explains that "Environmental justice impacts of tolling are typically a component of
NEPA analysis during project development," but "individual project analyses did not address the
potential cumulative impact of tolling."134 The RTA solved this problem. The FHWA describes
the RTA as a"powerful tool for analysis of socio-cultural impacts and environmental justice"
that has been "replicated in subsequent plans and emulated by other regions."13s
The National Academy of Sciences ("NAS") recently released a guidebook and toolbox
for analyzing the EJ impacts of tolls, which it specifically identifies as suited for the
environmental reviews conducted by USDOT under NEPA.136 The NAS guidebook prescribes
an eight-step process. First, project proponents should frame the project clearly in order to be
able to focus on potential its EJ implications.137 Second, proponents should identify the
applicable EJ review framework governing the decision.138 Third, proponents should identify the
relevant decision-makers and stakeholders.139 This requires
early and continuous communication and coordination to determine whether or not there
is a potential for disproportionately high and adverse effects on minority and low-income
populations; to ensure the full and fair participation by all potentially affected
communities in the transportation decision-making process; and to prevent the denial of,
reduction in, or significant delay in the receipt of benefits by minority and low-income
populations,14o
Fourth, proponents should determine the proper scope to measure and address the
impacts of the project.14' This may involve adjusting the study area based on input from affected
communities, and identifying who would be potentially affected by the toll implementation or
rate change.142 Fifth, proponents should analyze and measure EJ impacts.143 This will involve
133 Regional Tolling Analysis Informs NEPA Assessment of Cumulative Impacts on Low-Income Populations:
Dallas-Fort Worth, Texas, FHWA,
https://www.fhwa.dot.gov/environment/environmental iustice/resources/ej_and nepalcase_studies/case05.cfm (last
visited Feb. 13, 2018). Attachment 77.
13a Id. Attachment 77.
13s Id. Attachment 77.
136 NAT'L ACADEMY OF SCI., ASSESSING THE ENVIRONMENTAL JUSTICE EFFECTS OF TOLL IMPLEMENTATION OR
R.�TE Cx.�vGEs: Gu�DEsoox.�vv TooLBox (2018), http://www.trb.org/Main/Blurbs/177062.aspx. Attachment 74.
137 Id. at 9. Attachment 74.
138Id. at 19. Attachment 74.
139 Id. at 28. Attachment 74.
'4o Id. Attachment 74.
14' Id. at 32. Attachment 74.
142 Id. Attachment 74.
143 Id. at 45. Attachment 74.
27

assessing impacts to mobility, access, and safety; social and economic impacts; physical and
environmental impacts; and impacts to cultural and historic resources.144 The "toolbox" includes
a tool to help determine who benefits and who is burdened by tolls, the size of the benefit or
burden, and whether the benefits or burdens are significantly greater for EJ populations.'as
Sixth, proponents should assess potential mitigation.la6 proponents should quantitatively analyze
Mobile Source Air Toxics (MSATs) for any project with higher potential MSAT effects.14�
Seventh, proponents should document the results of the analysis for decision-makers and the
public.148 Finally, proponents should conduct post-implementation monitoring to ensure that
commitments are met.149
Similarly, the Center for Transportation Research at The University of Texas at Austin
has applied the following steps aimed at measuring EJ impacts: (1) analyze the impacts of a
proposed toll road is to identify the populations that are potentially impacted by it; (2) identify
the EJ populations that are impacted; (3) identify the additional impacts that would be caused by
a toll road compared to a non-toll road alternative; (4) measure those impacts; (5) determine
whether those impacts would be felt at a statistically significantly higher level by low-income
and minority communities; and (6) identifies potential mitigation.iso
D. The Proximity and Footprint Impacts of Highways
Major highway projects have multiple footprint and proximity impacts that compound the
injustice of the economic impacts discussed above.'s' proximity impacts include a wide variety
of health hazards. For example, because highways impair air quality, living in close proximity
increases risk for asthma and impaired lung function in children, for cardiac and pulmonary
mortality, and likely for lung cancer.152 Stormwater runoff from highways can threaten public
health.' S3 Road noise is associated with increased risk of heart attack,' S4 obesity,'ss and mental
'4a Id. Attachment 74.
'4s Id. Attachment 74.
146 Id. at 48. Attachment 74.
14� Id. at 58. Attachment 74.
148 Id. at 62. Attachment 74.
149 Id. at 67. Attachment 74.
15o JOLANDA PROZZI, ET AL., CTR. FOR TRANSP. RES. AT THE UNIV. OF TEX. AT AUSTIN, ASSESSING THE
ENVIIZONMENTAL 7USTICE IMPACTS OF TOLL ROAD PROJECTS 4-7 (2010), available at http://ctr.utexas.edu/w�
content/uploads/pubs/0_6544_l.pd£ Attachment 71.
lsl See 7ULIANA MAANTAY ET AL., USEPA, PROXIMITY TO ENVIRONMENTAL HAZARDS: ENVIRONMENTAL JUSTICE
.�vD ADVExsE HEALTx OuTCOMEs (2010), available at https://archive.epa.�ov/ncer/ej/web/pdf/maantay_pdf.
Attachment 78.
isz Doug Brugge et al., Near-highway pollutants in motor vehicle exhaust: A review of epidemiologic evidence of
cardiac and pulmonary health risks, PUBMED CENTRAL (2007), available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1971259/, Attachment 79; Ju�,1ANA MAANTAY ET AL., USEPA,
PROXIMITY TO ENVIRONMENTAL HAZARDS: ENVIRONMENTAL JUSTICE AND ADVERSE HEALTH OUTCOMES 62 (2O 1 O�,
available at https://archive.epa.gov/ncer/ej/web/pdf/maantay�d£ Attachment 78.
ls3 See Frequently Asked Questions, NCDOT, https://www.ncdot. o�v/pro,grams/environment/stormwater/fac�/ (last
visited Feb. 11, 2018). Attachment 80.
:

health problems.ls6 Low-income and minority populations tend disproportionately to suffer from
proximity impacts.ls�
FHWA has committed to analyzing these impacts, specifically explaining that "[i]n order
to determine if there are disproportionately high and adverse effects on EJ populations, there
must have been a comparison with non-EJ population."158 FHWA has developed an extensive
list of quantitative and subjective questions for conducting an EJ analysis.ls9 Environmental
justice forms part of FHWA's `Bnvironmental Review Toolkit,"16o which includes ten case
studies in which the responsible agency addressed EJ early in the NEPA process.161 EPA also has
collected methods and models for measuring disproportionate proximity impacts.16z
E. The Transportation Agencies' Failure to Analyze EJ Impacts
The Transportation Agencies' discussion of EJ impacts in the FEIS was cursory and
insufficient to satisfy NEPA and EO 12898.163 First, the Transportation Agencies concluded that
low-income, minority, and elderly people live throughout the study area, but are not concentrated
next to any of the DSAs.164 Second, the Agencies concluded that a"relatively small" number of
isa Mette Se�rensen, et al., Road Traffic Noise and Incident Myocardial Infarction: A Prospective Cohort Study,
PLOS One (2012), available at http://journals.plos.org/�losone/article?id=10.1371/journal.pone.0039283.
Attachment 81.
iss Andrei Pyko et al., Exposure to tra�c noise and markers of obesity, Occupational Environmental Medicine
(2015), available at http://oem.bmj.com/content/early/2015/04/28/oemed-2014-102516.fu11. Attachment 82.
� 56 Ester Orban et al., Residential Road Traffic Noise and High Depressive Symptoms after Five Years of Follow-up:
Results from the Heinz Nixdorf Recall Study, Environmental Health Perspectives (2016), available at
https://ehp.niehs.nih.gov/14-09400/#tabl. Attachment 83.
ls� See JULIANA MAANTAY ET AL., USEPA, PROXIMITY TO ENVIRONMENTAL HAZARDS: ENVIRONMENTAL JUSTICE
AIVD ADVExSE HEALTx OUTCOMES 18 (2010), available at https://archive.epa.gov/ncer/ej/web/pdf/maantay_pdf,
Attachment 78;Tegan K. Boehmer et al., Residential Proximity to Major Highways — United States, 2010, CDC,
https://www.cdc.gov/mmwr/preview/mmwrhtml/su6203a8.htm ("The greatest disparities were observed for
race/ethnicity, nativity, and language spoken at home; the populations with the highest estimated percentage living
within 150 meters of a major highway included members of racial and ethnic minority communities, foreign-born
persons, and persons who speak a language other than English at home. ... consistent pattern was observed for
poverty status . . . . "). Attachment 84.
isa Environmental Justics: [sic] What You Should Know, FHWA, https://www.fhwa.dot.,�ov/wadiv/crp/ejwadiv.cfm
(last visited Feb. 12, 2018). Attachment 85.
ls9 Id. Attachment 85.
160 Environmental Review Toolkit: Environmental Topics: Environmental Justice, FHWA,
https://www.environment.fhwa.dot.,gov/env topics/environmental iustice.aspx (last visited Feb. 12, 2018).
Attachment 86.
16i Environmental Justice in NEPA Case Studies, FHWA,
https://www.fhwa.dot.�ov/environment/environmental�ustice/resources/eLand_nepa/case_studies/case00.cfin (last
visited Feb. 12, 2018). Attachment 87.
16z JULIANA MAANTAY, ET AL., USEPA, PROXIMITY TO ENVIRONMENTAL HAZARDS: ENVIRONMENTAL JUSTICE AND
ADVExsE HEALTx Ou`rCOMEs 21-45 (2010), https://archive.epa.gov/ncer/ej/web/pdf/maantay_pd£ Attachment 78.
163 See Final Environmental Impact Statement 17-19 (2017).
16a Id. at 17.
29

the displacements that would be required to build the preferred alternative would affect low-
income residents.165 The Transportation Agencies 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 disproportionatel�y affect low-income residents.166 The Transportation Agencies claim
to anticipate no EJ impacts. 67
The Agencies briefly and insufficiently addressed impacts to low-income communities
and communities of color in the 2015 Community Impact Assessment ("CIA"). Here the
agencies 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.168 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.169 The Transportation Agencies conclude
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")]."170 The Transportation Agencies 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.'�' Notably, the CIA relies on the 2011 Community
Characteristics Report,172 which is nearly a decade old and relies on 1990 and 2000 census
data.' 73
The treatment of impacts to low-income communities and communities of color in the
FEIS and supporting documents is wholly inadequate. First and most obviously, the Agencies
failed to consider adequately the impacts of tolls themselves even though FHWA considers it
standard to do so on the project level, and good practice to do so at the regional planning stage in
order to capture the cumulative impacts of tolling. FHWA has produced a guidebook on
conducting this analysis and has been aware of a tool to do so for at least a decade. Additionally,
the NAS recently produced another helpful guidebook. However, 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
16s Id. at 17-19.
166Id. at 19.
167 Id. at v.
168 Community Impact Assessment 53-54 (2015).
'69 Id. 53.
'�o Id. 54.
"' Id. 54-55.
17z Id. 1.
173 Community Characterisrics Report 7(2011).
30

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: failure to identify this fact for the
public to consider is a clear violation of NEPA.
Second, the Transportation Agencies did not analyze proximity impacts. The
Transportation Agencies 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, the Transportation
Agencies' conclusion that these populations "do not appear to be concentrated in areas near any
of the DSAs"174 is vague and provides little basis from which even to infer that proximity
impacts will be small.
Third, even the Transportation Agencies' analysis of displacements is insufficient. The
Transportation Agencies provided a numeric review of the low-income people who would be
displaced,175 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."176 Notably, the
Transportation Agencies' conclusion that this impact may be written off because all DSAs would
impact Dreamland fails to acknowledge that non-highway alternatives would not do so. In
addition, the Transportation Agencies did not analyze whether elderly people would be
disproportionately impacted by displacements.
Fourth, although the Transportation Agencies acknowledged the project would displace
multiple communities, they failed to take full account of its impacts. For example, the
Transportation Agencies acknowledge 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."177 Nevertheless, Blue Skies was not even
included on the design public hearing maps.l'g 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 Park179
i�a Id. at 17.
i�s Community Impact Assessment 55 (2015).
176 Id. at 54-55 (emphasis added).
'�� Id. at 50; see id. at 51-52 (Tbl. 19).
178 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 88; see also Lisa Sorg, @lisasorg, TwiTTEx.CONt,
https://twitter.com/lisasor�/status/966116968863617024, Attachment 89.
1'9 See GooGLE M�s, 70-East Mobile Acres & Rv Park, 117 Buffaloe Acres Ln, Garner, NC 27529,
https://goo. 1� /maps/hKSw4pEMHYq (last visited Feb. 22, 2018). Attachment 90.
31

can be expected to use I-70—which the Quantitative ICE memo shows will become more
congested if Complete 540 is built—and I-70 Business, which will barely benefit.lao
For all these reasons, the Transportation Agencies' analysis of EJ impacts in the FEIS is
wholly inadequate to satisfy NEPA, or the agencies' responsibilities pursuant to EO 12898. A
full analysis should be prepared as part of a Supplemental EIS before the project is permitted to
proceed.
2. The FEIS Does Not Adequately Evaluate Impacts to Threatened and
Endangered Species
Under the Endangered Species Act ("ESA"), federal agencies must 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). In turn, regulations from the U.S. Fish and Wildlife Service ("USFWS")
and National Marine Fisheries Service ("NMFS") declare that the term "[j]eopardize the
continued existence of' means "to engage in an action that reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or distribution of that species."
50 C.F.R. § 402.02. In order to comply with the ESA's mandate to not conduct an action likely
to jeopardize endangered or threatened species, the action agency must engage in the
consultation process with the USFWS or NMFS. Thus, Section 7(a)(2) imposes a procedural
requirement that agencies complete the required consultation process, and a substantive
requirement to not take an action that would result in j eopardy to an endangered or threatened
species.
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.181 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.182 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."183
Another mussel species, the yellow lance, is currently proposed to be listed as threatened
under the Endangered Species Act and also inhabits streams within the Swift Creek Watershed.
The yellow lance is already listed as endangered by the State of North Carolina.184 Several other
iso Quantitative ICE Report 75-76.
lsl Dwarf Wedgemusse12007 Status Review 5. Attachment 91.
182 Dwarf Wedgemussel Viability Study — Phase 2(2016).
183 Letter from Gary Jordan, USFWS, to Richard W. Hancock, P.E., NCDOT (Nov. 25, 2015), at 2. Attachment 92.
isa See N.C. WILDLIFE REs. CoMM'N, Protected Wildlife Species of North Carolina (Oct. 2017). Attachment 93.
32

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, Atlantic Pigtoe
(state endangered), and Green Floater (state endangered) have been petitioned to be listed under
the ESA.185 Additionally, the Neuse River which flows through the proposed Complete 540
action area, has been designated as critical habitat for the endangered Atlantic Sturgeon.
The Complete 540 project as envisioned in the FEIS and supporting documents would
jeopardize the continued existence of the dwarf wedgemussel and yellow lance mussel
populations in violation of the ESA, may disrupt critical Atlantic Sturgeon habitat and harm
spawning populations of sturgeon, and would 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")186 accompanying the Complete 540 FEIS documents
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 the proposed to be
listed as threatened yellow lance.' 87 This result is hardly surprising considering the direct effects
of a massive highway crossing over essential habitat for the dwarf wedgemussel as well as the
indirect and cumulative effects from future increased traffic and land development.
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
the species: impoundments, pollution, riverbank alteration, and siltation.188 The agencies' BA
lists as threats to the dwarf wedegmussel 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.189 Many of these threats are
likely to result from or be exacerbated by the Complete 540 project.190
As highlighted in our previous comments on the DEIS, the USFWS has repeatedly
warned NCDOT of its concerns with the project's impacts to the endangered dwarf
iss See N.C. WILDLIFE REs. CoMM'N, Protected Wildlife Species of North Carolina (Oct. 2017), at 4, 6. Attachment
93.
's6 Two biological assessments accompany the FEIS—one for species under USFWS's jurisdiction, and one for the
Atlantic Sturgeon, which falls under NMFS' jurisdiction. For simplicity, we refer to the main, USFWS biological
assessment as the `Biological Assessment" or `BA" and specify when we are referring to the Atlantic Sturgeon BA.
187 Biological Assessment 77, TbL 19 (2017).
'sA Dwarf Wedgemusse12007 Status Review 11. Attachment 91.
ls9 Yellow Lance Species Status Assessment Report (2017), at 42. Attachment 94.
190 Biological Assessment 32-33 (2017).
33

wedgemussel, and the USFWS has continued that drumbeat of concern after the DEIS. In fact,
as NCDOT was selecting its preferred alternative, the Service reiterated 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.19i 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."19z
Indeed, the USFWS's comments on the DEIS 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."193 The comments also
highlight that the interchanges with I-40 and the US 70 Bypass are "at a particularly unfavorable
location for the DWM."194
The USFWS also stated that erosion and siltation from construction of the Complete 540
project, as well as indirect effects from water quality degradation due to induced growth would
negatively impact the dwarf wedgemussel.195 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,"196 and even "[s]ediment accumulations of less than 25 mm (one inch)
have been shown to cause high mortality in most mussel species."197 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."198 A bridge project in Massachusetts
devastated a dwarf wedgemussel population due to accelerated sedimentation and erosion.199
Unsuitable flow, or drought conditions, is a top threat to dwarf wedgemussels and yellow
lance.200 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."2o1
191 E-mail from Gary Jordan, USFWS to Kiersten Bass, HNTB (Feb. 22, 2016 2:23 PM). Attachment 95.
19z E-mail from Gary Jordan, USFWS to Kiersten Bass, HNTB (Feb. 22, 2016 4:01 PM). Attachment 95.
193 Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 3. Attachment 92.
'9a Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 3. Attachment 92.
'9s Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 3. Attachment 92.
196 Biological Assessment 23 (2017).
197 Id. at 23.
19A Id. at 34.
199 Id. at 23.
zoo Id. at 30.
zoi Id. at 28.
34

Because of mussels' sensitivities, roadway runoff may be one of the most concerning
aspects of the Complete 540 project. The BA documents the harmful pollutants contained in
highway runoff, including heavy metals, sediment, pesticides, deicing salts, nutrients, and
petroleum hydrocarbons—which can prove lethal to mussels, shorten mussel lifespans, and
impact mussel health.202 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."203 The BA
also predicts increased runoff from the existing roadway network "due to induced increases in
traffic volumes" as a result of the project.204 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 wedgemussels and yellow lance, 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.205 The BA states that a toxic spill "event is likely to occur during the
lifetime of the facility."206 While NCDOT proposes to include 1-2 hazardous spill basins within
the vicinity of the toll highway's crossing of Complete 540, the BA 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, the BA fails to discuss what would happen if a hazardous
spill occurred outside of the vicinity of the 1-2 hazardous spill basins. The BA also lacks detail
about how these basins would be installed, including whether additional wetlands would be
destroyed in order to create these basins.
While the BA states that NCDOT has committed to "avoid" in-stream fill related impacts
at the crossing of Swift Creek, a commitment to avoid is not the same as a commitment to
prohibit or abstain.207 The BA fails to identify the impacts that would result if NCDOT does not
in fact avoid in-stream fill impacts at the crossing of Swift Creek. Indeed, the BA declares that
the preferred alternative would result in "multiple crossings of streams within Swift Creek and
Lower Middle watersheds that will result in both the permanent and temporary loss (fill and
realignment) of stream channel."208
Z°Z Id. at 40; id. at 23-25 (discussing harmful effects of toxic contaminants on mussels).
zos Id. at 40.
zoa Id. at 40.
zos Id. at 49 ("[S]uch an event is likely to occur during the lifetime of the facility.").
zo6 jd. at 49.
207 Id. at 36.
208 Id. at 46.
35

The crossings of at least three streams within a quarter-mile of known mussel-occupied
habitat will require fill of stream channels, yet the BA 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.209 One of the identified stream crossings will result in a significant 443
liner feet of permanent fill in a stream that is less than a tenth of a mile away from known
mussel-occupied habitat.210 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."Z11
The Swift Creek crossing is particularly concerning given its proximity to occupied
mussel habitat. While the BA 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."2'2
Regardless of the direct fill of streams, the BA is forthright about 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 wedgemussels and yellow
lance by altering water flow, exacerbating erosion, and increasing possible runoff and
corresponding pollution.213 The BA 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.214 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 borrow and fill sites.Zls
Confusingly, the BA states that no permanent or temporary structures will be allowed
within 10 feet of the top of stream banks216—but 10 feet is within applicable riparian buffers for
the action area. Because riparian buffers help filter pollutants, promote stream channel stability,
and maintain appropriate water and air temperatures, damage to these buffers can result in a host
of detrimental impacts to water quality and in turn sensitive species like dwarf wedgemussels
zo9 jd. at 36.
zio Id. at 36. The stream in question, SDJ, is identified in Table 10 on page 35 as being 0.071 river miles away from
occupied habitat.
21 Id. at 47.
�'� E-mail from Christopher Murray, NCDOT, to Kiersten Bass, HNTB (Aug. 16, 2017, 7:47 AM). Attachment 96.
z'3 Biological Assessment 39 (2017).
zia ld. at 48.
zis E-mail from Christopher Murray, NCDOT, to Kiersten Bass, HNTB (Aug. 16, 2017, 7:47 AM). Attachment 96.
216 Biological Assessment 38 (2017).
36

and yellow lance. In fact, as noted in the Phase 2 Dwarf Wedgemussel Viability Study, the
NCWRC "recommends a minimum 200-foot native, forested buffer on perennial streams and a
100-foot forested buffer on intermittent streams in watersheds that support federally endangered
and threatened aquatic species."217 In 2016, the Environmental Protection Agency specifically
asked NCDOT whether it considered "wooded buffers under a permanent conservation
easement, enhanced sediment and erosion control practices during construction," as possible
management actions regarding the dwarf wedgemussel, but NCDOT does not appear to have
considered such measures in its FEIS.Z18
Induced growth and traffic from building Complete 540 would exacerbate the harmful
effects of all of the above-discussed threats by increasing impervious surface and in turn
stormwater runoff, increasing roadway runoff and corresponding pollutants,219 and increasing the
chance of a catastrophic hazardous spill by virtue of simply having 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." 220 In fact, USFWS "believes that indirect effects from road-induced
development are the greater concern," to dwarf wedgemussels.221 The USFWS also believes
"cumulative habitat fragmentation effects will occur." 222
As acknowledged in the BA, increased impervious surfaces negatively impact water
quality by changing stream flow, water temperatures, total suspended sediment, and pollutant
loadings.223 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 percent
of a watershed to protect aquatic species.224 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.225 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. Given the
�" DWM Viability Study — Phase 2 at 16 (2016).
218 E-mail from Cynthia Van Der Wiele, EPA, to Donnie Brew, NCDOT & Eric Midkiff, NCDOT (Feb. 11, 2016,
9:10 PM). Attachment 97.
219 Indirect and Cumularive Effects Memorandum (Quantitative 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.").
22° See, e.g., Letter from Gary Jardan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 3,
Attachment 92; see also Dwarf Wedgemusse12007 Status Review, at 13 ("Development of adjacent uplands
continues to be a significant and pervasive threat to southern populations."), Attachment 91.
zzi Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 1, 4. Attachment
92.
ZZZ Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, NCDOT (Nov. 25, 2015), at 1. Attachment 92.
zz3 Biological Assessment 27 (2017).
zza Id. at 27.
zzs Id. at 27.
37

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.
B. Insufficient Information Impedes Full Review of the Impacts to
Endangered and Threatened Mussels
As alluded to above, the BA fails to adequately document likely impacts of the Complete
540 project to endangered and threatened species. The BA'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 BA makes a statement about the difficulty of predicting certain
activities, despite having clearly identified detrimental effects from such activities in preceding
sections. The BA fails to give an honest assessment of the likely impacts from this specific
proj ect.
For example, the BA dodges an important analysis about sedimentation and erosion from
construction, stating that predicting the amount of sedimentation likely to occur is difficult
because it is "dependent on several factors, such as the frequency and duration of rainfall events
that exceed the erosion control design devices, construction duration and adherence to proper
maintenance of erosion control devices, and the promptness to respond and remediate erosion
control failures."226 Most of these factors are directly within NCDOT's control, including
maintenance of erosion control devices and remediation responding to erosion control failures.
NCDOT should also be able to predict construction duration—and even rainfall events based on
historical data. Given the detrimental impacts to mussel health associated with sedimentation,
the BA should have thoroughly studied and analyzed these possible impacts.
The BA also often limits its considerations of impacts to DWM 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.
The BA regularly neglects consideration of the specific impacts to host fish species and
does not appear to be taking any conservation measures specifically to protect these necessary
partners in mussel development. Although the BA makes passing reference to the importance of
fish host species for mussel populations, the document barely touches on the likely impacts to
fish host species. In their larval form, mussels are parasitic and require living off of particular
fish host species. Different mussel species have different host fish species, and as such,
documenting and protecting the associated iish species is essential to ensure future viability of
the mussels. The BA identifies the likely fish host species for dwarf wedgemussels as
Tessellated darter, Johnny darter, Mottled Scuplin, and possibly Fantail Darter,227 and for yellow
lance as "some type of minnow," with White Shiner and Pinewoods Shiner as effective hosts in
226 Id. at 38.
��' Id. at 15-16.
:

laboratory tests,228 but nowhere does the BA document the current population numbers or range
of these species within the Swift Creek Watershed. The BA's discussion of impacts to fish host
species is brief and general and fails to discuss impacts to the specific host species most likely to
be used by the dwarf wedgemussel or yellow lance.
The BA should have discussed how the same threats to mussels—i.e. toxic contaminants,
stormwater runoff, thermal pollution, roadway runoff, habitat destruction—would impact these
fish host species. While the BA does acknowledge possible impacts such as fish "being crushed
by construction materials, stranding in dewatered areas, physiological stress, and increased
susceptibility to predation from dispersal, as well as acoustic related impacts," this list of
possible impacts is incomplete.229 The BA also notes that the Complete 540 project would
require "some of the longest water conveyances (culvert and pipe) throughout the Swift Creek
and Middle Creek watersheds," which "have proven to be an impediment to fish migration and
passage."230 Apparently no evaluation was done to determine whether host fish species occur in
any of the streams impacted by the Complete 540 project.231 This glaring shortcoming of the BA
must be rectified in order to determine the full extent of impacts to dwarf wedgemussels and
yellow lance.
The BA also fails to evaluate impacts from increased dust or debris during construction
of the toll highway, and also fails to analyze impacts from ingress of heavy trucks.
C. A Propagation Facility Cannot "Offset" Impacts to the endangered
mussels or Comply with the ESA
The FEIS and corresponding reports confirm the agencies' plans to circumvent the ESA's
conservation mandate through a mussel propagation program that would only result in more
mussels being doomed to attempting to survive in unsuitable habitat. 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, but no agreements or memoranda of understanding have been
finalizedZ32 The FEIS lacks details about when the proposed five-year agreement would begin or
expire, or what would happen to the facility after those five years' worth of funds dry up.
Other than explaining how the costs would be divided among Wake County and the
NCWRC, the FEIS lacks any details of how the money would be spent or what it would cover.
The FEIS fails to provide any cost breakdown or budget, making it impossible to tell whether $5
million will actually be enough to fund retrofitting and running the facility. There is no way to
assess the reasonableness of this funding proposal without such details.
��g ld. at 19.
zz91d. at 47.
z3o Id. at 47.
z31 Id. at 47 ("If host fish species were determined to occur in these streams. ...")
232 Final Environmental Impact Statement 58-60 (2017).
39

While the ESA permits agencies to incorporate conservation measures into a project in
order to offset possible impacts, in order 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'l
Wildlife Fed'n v. NatZ Marine Fisheries Serv., 524 F.3d 917, 935-36 (9th Cir. 2008).
As more fully detailed in the Conservation Groups' comments on the DEIS, the
Transportation Agencies had been anticipating that the cost of the propagation facility would be
above $7 million,233 which if correct, invites the question of where more than $2 million
additional necessary funds will come from under NCDOT's current proposal. By comparison, a
similar facility in Virginia cost $2.3 million to construct and $9.5 million to operate for 20
years.234 In a 2015 e-mail, NCDOT staff said that "the amount of funding for this conservation
measure [augmentation] could then be justifiably increased," in the event "any other species of
mussels are listed before completion of Complete 540."235 Yet NCDOT has apparently
decreased what it is willing to spend on a propagation facility even as an additional mussel
species—the Yellow Lance—has been set for being listed under the ESA.
Indeed, NCDOT appears to explicitly want to limit its involvement as much as possible:
"NCDOT would not be responsible for the construction, management, or success of the YMACC
or its propagation goals."236 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.237 Another e-mail between NCDOT staff further documents NCDOT's desire to
provide a"counter proposal" to the Service with an aim to keep NCDOT's dollar figure
commitment "on the lower end of the pay spectrum."238 And another NCDOT document
indicates that USFWS "wants NCDOT to take a lead role and accept responsibility for
[propagation and augmentation] plan implementation" but NCDOT was aiming to find the
"appropriate/minimal level of involvement for NCDOT that is commensurate with the Complete
540 proj effects."239
233 See e.g. Attachment to e-mail from Donnie Brew, NCDOT, to Jennifer Harris, et al. (Feb. 5, 2015 2:50 PM).
Attachment 98.
z3a E-mail from Sarah McRae to Donnie Brew, NCDOT, et aL (Apr. 21, 2015 11:38 AM). Attachment 99.
z3s E-mail from Kenneth Medlin, NCDOT to Kiersten Bass, HNTB (June 5, 2015 11:39 AM). Attachment 99.
Z36 Final Environmental Impact Statement 60 (2017).
237 E-mail from Brian F. Yamamoto, NCDOT, to Jennifer Harris, HNTB, and Kiersten R Bass, HNTB (Nov. 2,
2016). Attachment 100.
238 E-mail from Philip Harris, NCDOT, to Richard Hancock, NCDOT, et al. (Apr. 20, 2015 8:55 AM). Attachment
101.
z39 Attachment to e-mail from Donnie Brew, NCDOT to Jennifer Harris, et al. (Feb. 5, 2015 2:50 PM). Attachment
98.
.�

NCDOT cannot simultaneously point to the propagation facility as a means of satisfying
its ESA obligations while also attempting to distance itself from the facility and rely on other
entities to implement the propagation project. 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. Diversiry v. Rumsfeld, 198 F.
Supp. 2d 1139, 1153 (rejecting suggested conservation measure where agency had "no authority
... over the implementation of this mitigation measure."). 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,
NCDOT cannot satisfy its obligations under the ESA simply by paying for another agency to
grow mussels in captivity.
As detailed in our comments on the DEIS, the process of setting up a propagation plan
and facility is time-consuming and should have started years ago;240 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
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.241 The
scope of work also estimated that constructing the propagation facility would take at least two
years' time.242 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."Z43 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 is willing to
contribute. As recently as September 2017, consultants for NCDOT expressed concern that
"there has been little tangible progress in finalizing the plans for the facility and the funding and
agreements necessary to implement the plans."244
Even if NCDOT could demonstrate that its funding proposal were sufficient to construct
and operate a propagation facility, it has not demonstrated that dwarf wedgemussels and yellow
lance from Swift Creek could be successfully propagated and reintroduced into the wild. The
BA even admits that "there have not been any DWM population augmentation or re-introduction
efforts using captive propagation.i245 In fact, past efforts by North Carolina State University
zao Meeting Summary re: Dwarf Wedgemussel Coordination far Phase 2 study and Review of USFWS
Recommendations (July 18, 2014), at 2(referring to the need to invesrigate population augmentarion feasibility as "a
time sensitive recommendation that needs immediate action."), at 2. Attachment 102.
z4' Scope of Work, Dwarf Wedgemussel Viability Study — Phase 2: Complete 540 — Triangle Expressway 2-3
(2014). Attachment 103.
Z4Z Id. Attachment 103.
z43 Dwarf Wedgemussel Viability Study — Phase 2 at 105 (2016) (emphasis added).
zaa DAWSON & ASSOCIATES, ANALYSIS OF THE PROCESS AND SCHEDULES FOR THE COMPLETE S4O AND MID-
CURRITUCK BRIDGE PRO.rECTS (2017). Attachment 104.
245 Biological Assessment of Potential Effects to Federally Listed Species 55 (2017).
41

("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.246 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."247 In
particular, the researchers noted as difficulties: finding adults in the wild, 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.Z48
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 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.Z49 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.250 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.2s1
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 then harming
246 LEVINE, JAY AND ARTHUR BOGAN, NCDOT, FHWY/NC/2009-16, PROPAGATION AND CULTURE OF FEDERALLY
LISTED FRESHWATER MUSSEL SPECIES 22-23 (2011�. Attachment 105.
Z4� Id. at 23-24. Attachment 105.
z4A Id. at 23. Attachment 105.
z49 Dwarf Wedgemussel Viability Study — Phase 2 at 55 (2016).
zso Id.
zsi 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
time sensitive recommendation that needs immediate action."), at 3. Attachment 102.
42

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 seemingly 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.Z52 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
collected any yellow lance for propagation efforts. The BA 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 insufficient 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.
Even if NCDOT's funding proposal were sufficient to cover a successful propagation and
release effort, NCDOT has failed to demonstrate that mussels propagated in captivity could be
successfully reintroduced to the wild. In particular, 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 futile exercise if the habitat available is severely
degraded and not conducive to survival. 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
restoNation to save an endangered species from extinction. 253 It is highly improbable that a
captive breeding program could save a species from extinction when instituted in conjunction
with habitat destruction. Notably, the list of threats to mussels in the agency's own BA almost
exclusively pertain to habitat quality.254 Similarly, the most recent status review for the dwarf
ZSZ Dwarf Wedgemussel Viability Study — Phase 2 at 99 (2016).
253 Snyder, et al., Limitations of Captive Breeding in Endangered Species Recovery, 10 CoNSERVATION BIOLOGY
338, 338 (1996), Attachment 106; see also Thomas, et al., Captive Breeding of the Endangered Freshwater Pearl
Mussel Margaritifera Margaritifera, 12 ENDANGERED SPECIES REs. 1, 7(2010) ("[C]aptive breeding cannot be a
substitute for habitat restoration."). Attachment 107.
zsa Biological Assessment of Potential Effects to Federally Listed Species 32-33 (2017).
43

wedgemussel identifies impoundments, pollution, riverbank alteration, and siltation as the main
threats to the species255—a11 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.256
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,"�s� and "the potential for this species to persist into the
future in Swift Creek is highly dependent on habitat viability."258 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."259 This
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."26o
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.
D. Insufficient Analysis of Atlantic Sturgeon
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.
When the FEIS and technical reports were released to the public on the NCDOT website
on December 22, 2017, the Atlantic Sturgeon Biological Assessment ("Sturgeon BA") was
unavailable at that time. Instead, the link for this document led to a one-page placeholder
document explaining that the BA was not complete, but that a copy of the draft Sturgeon BA
would be provided upon request. On January 4, 2018, counsel for the Conservation Groups
requested a copy of the draft Sturgeon BA, and in response on January 5, 2018, NCDOT staff
stated the purpose of the placeholder document was to collect a list of interested individuals to
whom to disseminate the final report upon its completion but made no mention of providing the
zss Dwarf Wedgemusse12007 Status Review 11. Attachment 91.
zsb Smith, et al., Developing a conservation strategy to mazimize persistence of an endangered freshwater mussel
species while considering management effectiveness and cost, FxESxwATEx SCL, Dec. 2015, at tbl. 1. Attachment
108.
257 Dwarf Wedgemussel Viability Study — Phase 2 at 88 (2016).
zsa 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.
zs9ld. at 104.
z6o Id. at 105.
..

draft Sturgeon BA as stated on the website.261 On January 5, 2018, the attorney again requested
the draft Sturgeon BA as indicated by the placeholder document, but received no response.Z6Z A
week later, on January 12, 2018, counsel again requested the draft Sturgeon BA, and NCDOT
finally provided the draft Sturgeon BA on January 16, 2018.Z63 The Conservation Groups and
their counsel were never notified by NCDOT of when the final version of the Sturgeon BA was
available; instead, counsel found the final Sturgeon BA available online on February 1, 2018—
the day of the close of the general public comment period.
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.264 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.265 Complete 540 would also increase pollution from highway runoff with the 77 stream
crossings along the Complete 540 route that drain into critical habitat,266 as well as due to
induced higher traffic volumes throughout Wake and Johnston County.267 While the Sturgeon
BA downplays the significance of water quality impacts from induced growth268—suggesting a
small increase over a No-Build scenario—Section VI(5) , below, details the flaws in the
agencies' ICE analysis and how the impacts from induced growth are likely much greater.
Much like the separate analysis for impacts to mussels, 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
261 E-mail from Rodger Rochelle, NCDOT, to Ramona McGee, SELC, et aL (Jan. 5, 2018 11:48 AM). Attachment
109.
26� E-mail from Ramona McGee, SELC, to Rodger Rochelle, NCDOT, et aL (Jan. 5, 2018 12:53 PM). Attachment
109.
263 E-mail from Ramona McGee, SELC, to Rodger Rochelle, NCDOT, et aL (Jan. 12, 2018 10:04 AM), Attachment
109; E-mail from Rodger Rochelle, NCDOT, to Ramona McGee, SELC & Kym Hunter, SELC (Jan. 16, 2018 7:03
PM). Attachment 109.
z6a Biological Assessment of Potential Effects to the Atlantic Sturgeon 21-22 (2018).
zbs jd. at 25.
266 Id. at 27, 35.
267 Id. at 31.
z6A 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 quality necessary for successful spawning and recruitment.").
45

the Sturgeon BA also acknowledges that juvenile sturgeon captured downriver from the action
area were likely spawned upstream—which could include the action area.Z69 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. 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.
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."270 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.2�1
Much like the project's main BA for mussels, the Sturgeon BA fails to even attempt to
document likely 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.272 That something is difficult to predict is not a valid reason to omit such an
analysis in a BA or NEPA documentation.
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
z69 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 proj ect and that "it cannot be definitively concluded that the
species is absent from this portion of the river.").
270 Id. at 33.
�'i Id. at 32-33.
2'2 Id. at 25.
.�

regulated by NCDOT as part of project construction and will incorporate the specific PDCs in
Appendix C."273 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."2�4
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 2017.275 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.276 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. 277
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.
E. Adverse Impacts to Other Species
In addition to the dwarf wedgemussel and yellow lance, Swift Creek supports 11 other
rare aquatic species,278 including a number that USFWS is currently studying to consider
whether they should be proposed to be listed as endangered or threatened under the ESA.279 Yet
the agencies nowhere study the likely impacts to these species or other species as a result of
273 Id. at 33-34.
274 Id. at 26.
��s Id. at 23; id. at App. B at 1.
276 Id. at App. B at 1.
��� 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).").
Z�A See DWM Viability Study: Phase 1(Mar. 2014) at Table 1. Rare Aquatic Species in Swift Creek.
Z�9 See Biological Assessment at 4.
47

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."280 A recent consultant report recommended that NCDOT
begin coordinating with USFWS about impacts to species "that may be under study before
construction is completed."Z81
Despite these apparent plans and logic for including this species in the BA, the BA itself
expressly does not include these species and provides no explanation for the omission.282 The
referenced baseline data was apparently gathered by NCDOT's consultants, however, it was not
disclosed in the BA or elsewhere in the FEIS and corresponding documents, leaving the public
unable to comment on the adequacy of this data and the underlying methodology. In fact, an
early Task Order for the Biological Assessment suggests that the baseline data for the Carolina
Madtom is likely skewed because the surveys for this species were to be completed during
mussel surveys, rather than during the ideal time for the species.283 Because the mussel BA and
the Atlantic Sturgeon BA are the only documents accompanying the FEIS to address species
impacts, this omission means that the FEIS fails to consider the impacts to these and other rare
and sensitive aquatic species, violating the separate requirements of NEPA.
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."284 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."285 Despite these warnings from
USFWS, NCDOT has failed to investigate or document these likely impacts to species other than
those listed under the ESA.
280 Aquatic Species Survey Report (June 2017), at 1; see also id. at 52 ("The other target species, the Atlantic 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 priar to the completion of the Final
Environmental Impact Statement (EIS), it is prudent to include these species in the Biological Assessment (BA) far
this project."), Attachment 110.
281 Dawson & Associates, Analysis of the Process and Schedules for the Complete 540 and Mid-Currituck Bridge
Projects (Sept. 2017), at 9. Attachment 104.
282 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.")
283 H.W. Lochner, Inc., Scope of Services Task Order 12 (Sept. 14, 2016) at 3("The ideal time to survey for
Carolina Madtom is early Spring to Summer, but the timeline for this project does not allow for such surveys.").
Attachment 110.
Z84 Letter from Gary Jordan, USFWS, to Richard W. Hancock, PE, N.C. Dep't of Transp. (Nov. 25, 2015), at 1.
Attachment 92.
285 Id. at 4. Attachment 92.
.•

3. The FEIS Does Not Adequately Evaluate Impacts to Water Quality
The FEIS confirms that the preferred alternative will impact 59,533 feet of streams, 145
acres of buffers, and 156 different wetlands comprising 69.5 acres. The Conservation Groups
raised a number of concerns about this unprecedented level of impact in their earlier comments.
Most of these comments were not responded to. For example, the Groups noted that the DEIS
failed to explain how limits on development would affect the project and provided no
information about the nature of Complete 540's impacts to the 6.7 affected acres of the Swift
Creek Critical Watershed.286 The Agencies ignored this comment entirely. Similarly, the
Conservation Groups pointed out that while the DEIS mentioned preventive measures such as
sedimentation and erosion controls it did not contain any commitment that they would be
followed and the measures would be unlikely to work.287 In response, the Agencies state that
they are required to comply with the Sedimentation and Pollution Control Act and regulations,
and will use Design Standards for Sensitive Watersheds throughout the project.288 However, this
does not address the fundamental issue of whether these measures will successfully prevent
contamination of the sensitive watersheds affected. The FEIS and corresponding reports
continue to point to largely voluntary or non-binding measures as somehow reducing these water
quality impacts.
The Conservation Groups further noted that the DEIS lacked information concerning
stream and water quality impacts and that the information it did contain was dated. This harmed
the "NEPA process by failing to provide information necessary to the selection of a preferred
alternative."289 Moreover, the DEIS contained scant documentation about Section 303(d)
impaired waters, which are protected from addition of certain new pollutant under the Clean
Water Act.290 To each of these comments, the Transportation Agencies responded merely that
state and federal agencies participating in the process were satisfied with the information
provided.291 But the NEPA process is not just for other state and federal agencies, it is designed
to inform the public. The FEIS suffers from these same deficiencies—while it lists out the
quantities of water bodies and wetlands impacted, nowhere does it provide any additional details
about water quality impacts. The FEIS's Lower Swift Creek Water Quality Report was largely
limited to reviewing water quality in relation to dwarf wedgemussel viability.292 Even then, this
report relied on sampling only three sites solely within Swift Creek—not Middle Creek or any
Z86 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 22. Attachment 52.
287 Id. at 22. Attachment 52.
288 Final Stakeholder Involvement Report at Response 44 to SELC Comments.
Z89 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 22. Attachment 52.
z90 Id. at 23. Attachment 52.
z91 Final Stakeholder Involvement Report at Response 17 to SELC Comments.
292 Lower Swift Creek Water Quality Report 1(2016).
.•

other tributaries—from nine different days in 2014 and 2015.293 Even this limited study revealed
copper levels that exceeded applicable water quality standards.Z94
Moreover, the record makes clear that USEPA, at least, was dissatisfied with the limited
scope of the Transportation Agencies' review. In a series of e-mails from November 2014,
USEPA repeatedly asked for more information about stream impacts and the "lack of bridging at
sites with 1000+ lf of stream impact and 2 or more culverts."295 Then, in February 2016, USEPA
was still seeking substantive responses from NCDOT regarding USEPA's concerns and
comments on the DEIS.296 In particular, NCDOT's responses failed to "capture the EPA's
concerns regarding floodways, and NCDOT still had failed to satisfy USEPA's questions about
possible "further bridging to reduce project impacts," and "what additional avoidance and
minimization measures" might be implemented. USEPA also questioned what specific BMPs
NCDOT intended to implement and how such measures might "go beyond the standard practice
to further reduce nutrients and capture sediment," or what stormwater mitigation measures would
be employed.
In a similar vein, the Conservation Groups noted that the DEIS and Natural Resources
Technical Report failed to document the extent or nature of wetlands impacts.297 In response, the
Agencies merely stated that NEPA does not prevent implementation of projects that harm
wetlands.298 This response misses the point. NEPA emphatically does prevent implementing
projects without taking a hard look at their environmental consequences. The FEIS similarly fails
to take such a hard look. Nor is there any information in the FEIS regarding the mitigation that
will be put in place to mitigate for the impacts of the wetlands loss. An internal NCDOT
document reveals that "mitigation needs" for only Phase 2 of the project "include over 100,000 lf
of stream and 85 acres of riparian wetlands," and that this mitigation "must be implemented in
FY 2015-2016."299 As documented in the agencies' 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 the County alike."3oo
The Conservation Groups also noted that the Transportation Agencies' reliance in the
DEIS on local riparian buffer ordinances failed to account for the fact that North Carolina
legislation prevents localities from enacting, implementing, or enforcing riparian buffers that are
293 Id. at 3-4
z9a jd. at 6.
Z95 E-mail from Cynthia Van Der Wiele, USEPA, to Jennifer Harris, NCDOT, and Eric Alsmeyer, USACE (Nov. 14,
2014, 12:16 PM). Attachment 111.
z96 E-mail from Cynthia Van Der Wiele, USEPA, to Donnie Brew, FWHA, and Eric Midkiff, NCDOT (Feb. 11,
2016, 9:10 PM). Attachment 97.
Z9� Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 24. Attachment 52.
z9a Final Stakeholder Involvement Report at Response 49 to SELC Comments.
z99 540 Transportation Project — Triangle Expressway Southeast Extension (2015). Attachment ll 2.
soo Dwarf Wedgemussel Viability Study — Phase 2 53 (2016).
50

more protective than state or federal requirements, and it was therefore error for the Agencies to
rely on these buffers to mitigate the impacts of the project.301 The Agencies provided no
response to this key critique.302 And the FEIS and supporting documents fail to address this
concern, instead still referencing the riparian buffers of different jurisdictions respective riparian
buffers without accounting for the change in law.3o3
The Transportation Agencies also misrepresented and failed to address concerns about
the preferred alternative's crossing of the Neuse River Trail and other Section 4(� resources. In
the FEIS, Transportation Agencies claim that "[t]here was no expressed opposition by citizens to
the proposed de minimis determinations for these resources [including the Neuse River Trail]."304
Conservation Groups provided extensive comments and concerns about the Transportation
Agencies' proposed de minimis determinations.3os With regards to the Neuse River Trail in
particular, Conservation Groups stated the impacts would be far greater than de minimis because
users of the trail would now be subjected to increased traffic sounds and pollution
and the eyesore of a giant toll highway—such impacts would adversely affect the
experience of bicyclists, joggers, and walkers on this greenway, which currently
does not have any comparable disturbances in this southern portion of the Trail.3o6
The Transportation Agencies' de minimis determinations regarding the Neuse River Trail
and other resources are in error, and the agencies must acknowledge and address
Conservation Groups' unanswered concerns.
4. The FEIS Does Not Adequately Evaluate Impacts to Air Quality
In previous comments on the DEIS, the Conservation Groups noted that the DEIS Air
Quality Analysis failed to document the effects that the project would have on concentrations of
harmful criteria pollutants, and in particular on ozone levels.307 The Transportation Agencies
responded that the analysis was sufficient under NCDOT and FHWA guidelines; ozone is
assessed only at the system-wide planning level; ozone is produced only downwind and in
sunlight; and the Complete 540 project is not expected to push Johnson or Wake Counties out of
"attainment" status for ozone under the Clean Air Act.308 This response fails to address the
301 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 25. Attachment 52.
302 Final Stakeholder Involvement Report at Response 50-51 to SELC Comments (2017).
303 E.g. Biological Assessment 43 (2017); id.at 50-51; Dwarf Wedgemussel Viability Study — Phase 2 44 (2016)
(acknowledging change of law and possible changes to buffer regulations). While the Dwarf Wedgemussel
Viability Study noted future likely changes to buffer protections, the FEIS and technical reports nowhere updates or
addresses this prediction.
soa Final Environmental Impact Statement at 51.
sos Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 49-52. Attachment 52.
306 Id. at 51. Attachment 52.
307 Id. at31. Attachment 52.
308 Final Stakeholder Involvement Report at Response 64 to SELC Comments.
51

substance of SELC's comment, which was the failure to analyze all the impacts of the project on
all criteria pollutants.
Now at the FEIS stage, the agencies still have not studied carbon monoxide, nitrogen
oxides, volatile organic compounds, or particulate matter pollution likely to result from the
project. Citing that Wake and Johnston counties' current levels of such harmful pollutants do not
exceed federal requirements, the Transportation Agencies determined they did not need to study
how the road would impact such pollutant levels. That Wake and Johnston Counties are
currently in attainment is irrelevant to what would be the likely future impacts of Complete 540
on air quality, including localized air pollution levels due to increased traffic in the study area.
A. The Evaluation of Toxic Pollutants from Cars is Inadequate
In the Conservation Groups' comments on the DEIS, they also highlighted that the
DEIS's Air Quality Report gave cursory treatment to potential increases in toxic air pollutants
emitted by motor vehicles, known as mobile source air toxics ("MSATs"). Specifically, the
Conservation Groups explained that the Transportation Agencies failed entirely to explain the
health impacts from increases in MSATs, disclaimed analyzing MSATs on the basis of
difficulty, and then claimed, without explanation or analysis, that new EPA vehicle requirements
will result in lower MSAT emissions.3o9 The Transportation Agencies did not respond to these
comments. As already noted, agencies may not skip NEPA analyses simply because the analyses
are difficult.
The Transportation Agencies responded that after selection of the preferred alternative
they completed an Air Quality Report Addendum, but a detailed analysis of MSAT
concentrations is not part of the analysis.310 The Transportation Agencies stated that "tools and
techniques for assessing project-specific health outcomes as a result of lifetime MSAT exposure
remain limited."311 Finally, the Transportation Agencies stated that FHWA guidance also
anticipates MSAT concentrations to decline as a result of EPA fuel regulations.312
These responses did not meaningfully address the substance of Conservation Groups'
comments, and these problems persist in the brief Air Quality Report accompanying the FEIS.
The Transportation Agencies conducted a qualitative review of possible increases in MSATs, but
failed to study the likely quantitative increases in MSATs, dismissing any likely increase as
being offset by EPA's stringent new vehicle requirements by the year 2050. These requirements
could take decades to begin to offset pollution increases, meaning that localized increased
emissions of these harmful toxics could be present in local air quality for years before any offset
is experienced in Southeastern Wake County. Moreover, the expectation that MSAT emissions
will decrease in the future rests on a shaky foundation in light of the Trump Administration's
309 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 31-32. Attachment 52.
3'o Final Stakeholder Involvement Report at Response 65 to SELC Comments.
311 Id.
siz Id.
52

ongoing rollback of environmental regulations.313 For example, the Administration is
reconsidering the "Corporate Average Fuel Economy" (CAFE) standard regulating greenhouse
gas emissions from cars and trucks.314
Additionally, the Transportation Agencies' attempt to excuse their failure to analyze
health impacts on the basis that "tools and techniques" are "limited" does not explain the
Agencies' failure to attempt to do so with the tools admittedly at their disposal. The
Transportation Agencies do have the tools to study health impacts from MSATs. For example,
in March 2017, well before the release of the Complete 540 FEIS in late December 2017, FHWA
released a paper explaining how to conduct quantitative analysis of MSAT emissions for a
hypothetical ten-mile urban freeway expansion project.31s
The Conservation Groups also noted that the DEIS should estimate the likely emissions
exposures at important community locations, compare the human health costs of preferred
alternative to at least one non-toll alternative, and model the health impacts of the increased
MSAT exposure to the full extent practicable.316 The Agencies did not respond to these points.
As explained previously, given that the preferred alternative would increase traffic and
corresponding dirty tailpipe emissions—and that the highway would be located close to schools,
day care centers, churches, and other community resources—the Transportation Agencies should
study the air quality impacts of this project and provide the public with adequate information
about the harmful air pollution effects of the road.
B. The FEIS Contains No Analysis of Indirect and Cumulative Effects on
Air Quality
The Conservation Groups' concerns about the DEIS's lack of any analysis of indirect and
cumulative impacts on air quality remain unanswered with the publication of the FEIS and
corresponding reports. The FEIS, Air Quality Report, and ICE Memoranda are entirely silent on
this topic—meaning that Conservation Groups' comments from the DEIS remain unanswered.
The Conservation Groups previously highlighted that the DEIS and related documents wholly
failed to consider the indirect and cumulative impacts on air quality in the project area, noting
that Complete 540 will affect growth and land use patterns, and that the Transportation Agencies
stated that they planned to conduct a quantitative assessment of the indirect effects of build and
no-build scenarios only after a preferred alternative was selected.31'
313 See Regulatory Rollback Tracker, HARVARD LAw (2018) http://environment.law.harvard.edu/polic�
initiative/re_u�y-rollback-tracker/. Attachment 113.
3i4 See EPA, DOT Open Comment Period on Reconsideration of GHG Standards for Cars and Light Trucks,
USEPANEwSRELEASEs (Aug. 10, 2017), https://www.epa.gov/newsreleases/epa-dot-open-comment-period-
reconsideration-�he-standards-cars-and-li�ht-trucks. Attachment 114.
3is See C.D. Porter, et al., Quantitative Mobile Source Air Toxics Analysis for a Hypothetical Transportation
Project, USDOT, FHWA TEC�viCAL REPOxT (Mar. 2017),
https://www.fhwa.dot.gov/environment/air quality/air_toxics/research_and_analysis/msat_hy�othetical/index.cfm.
Attachment 115.
316 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 33. Attachment 52.
317 Id. at 33.
53

In response, the Transportation Agencies disclaimed any responsibility for analyzing
traffic and land use patterns and, apparently, the ensuing environmental impact, stating that such
analysis is "the responsibility of the local MPO as they develop their long range transportation
plan."318 The Transportation Agencies further stated that any long-range transportation plan must
be shown to be in conformity with the state's Clean Air Act State Implementation Plan ("SIP")
to be approved, and that because Complete 540 "comes from a long-range plan that has been
shown to be in conformity with the State Implementation Plan."319 This appears to be the basis
for the Transportation Agencies' assertion that the project "is not expected" to push Johnson or
Wake Counties out of attainment with the SIP, rendering that expectation suspect.320 The
Agencies also stated that a quantitative analysis of the indirect and cumulative effects of the
preferred alternative on land development was completed and included in the FEIS.321
The Agencies' response fails to meaningfully address the Conservation Groups'
comment. First, the Transportation Agencies must conduct a full NEPA analysis and cannot pass
their NEPA responsibilities to the MPOs. Second, the MPO's development of a long-term
regional transportation plan does not substitute for a NEPA analysis in any case. Finding that a
project will not result in CAA attainment violations is simply not the same as analyzing its air
quality impacts as NEPA requires. For example, a project that will not result in attainment
violations easily could cause localized air quality impacts that must be analyzed under NEPA's
"hard look" requirement. Third, the Agencies do not explain what it means for Complete 540 to
have "come from" the regional transportation plan and how that ensures that it will not result in
attainment violations. Finally, the Quantitative ICE study included with the FEIS does not
include an air quality analysis.
C. The FEIS Contains No Analysis of Greenhouse Gas Emissions
The Conservation Groups also expressed concern that the DEIS and its corresponding Air
Quality Analysis Report failed to include any reference to possible impacts on greenhouse gas
emissions ("GHGs").322 In response, the Transportation Agencies merely state that "On Apri15,
2017, the Council on Environmental Quality (CEQ) rescinded its guidance on greenhouse gas
emissions and climate change" and FHWA policy does not require such analysis.323 This
argument is a nonstarter: rather than explaining why the Agencies failed to conduct this analysis
in the DEIS, the Transportation Agencies argue that because the Trump Administration has
repealed climate change guidance they are no longer required to analyze GHGs. The
Transportation Agencies are wrong. The response does not substantively address SELC's
comment, nor does it address that irrespective of the rescinded guidance (which was intended to
help agencies navigate a pre-existing legal requirement), an analysis of GHG impacts must
legally be part of the agencies' "hard look" at environmental impacts likely to result from the
3's Final Stakeholder Involvement Report at Response 66 to SELC Comments.
319 Id
3zo Id. at Response 64.
szi Id
322 Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 34. Attachment 52.
323 Final Stakeholder Involvement Report at Response 67 to SELC Comments.
54

project. See, e.g., 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 Tra�c
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 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 on project violated NEPA).
With the FEIS, the Transportation Agencies still have not studied how the preferred
alternative would contribute to GHG emissions. The transportation sector now leads the power
sector as the top contributor of greenhouse gas emissions,324 making it even more important to
consider how expensive, long-term transportation projects like this will impact such emissions.
Governor Cooper recently committed North Carolina to reducing its share of greenhouse gas
emissions in line with the Paris Accord, but this toll highway would be a step away from meeting
those goals by fostering and increasing dirty automobile traffic through Wake County.
5. The FEIS Contains a Flawed and Inadequate Analysis of Indirect and
Cumulative Effects
NEPA requires consideration of indirect effects, defined as those effects that are "caused
by the action and are later in time or farther removed in distance, but are still reasonably
foreseeable." 40 C.F.R. § 1508.8(b). The CEQ regulations state that NEPA documents should
specifically include "growth inducing effects and other effects related to induced changes in the
pattern of land use, population density or growth rate, and related effects on air and water and
other natural systems, including ecosystems." Id.
Toll roads in high-growth urban areas have generally led to significant amounts of
induced growth. 325 And the Transportation Agencies have long anticipated that the completion
of the 5401oop would cause growth. NEPA documents identify the strong likelihood that it will
do so,326 and USDOT, based on NCDOT's representations, expects that Complete 540 will cause
324 Tom Randall, America Crowns a New Pollution King, BLooMBERG NEWS (Dec. 4, 2017),
https://www.bloomberg.com/news/articles/2017-12-04/america-crowns-a-new-pollution-kin� Attachment 116.
325 Jeffrey Spivak, Toll Roads: The Route to Redevelopment?, U�Atv LAN� (Oct. 29, 2013),
https://urbanland.uli.or�/industry-sectors/infrastructure-transit/toll-roads-the-route-to-redevelopment/. Attachment
117.
3z6 preferred Alternative Report 6(2016) ("Compared to the no-build scenario, however, the build scenarios could
lead to more rapid growth and more intense development in some areas near proposed interchanges."); Qualitative
ICE Report 8(2014) ("The project will add access points for properties, which will be most notable at the project's
interchange locations, where nearby parcels will become attractive for higher intensity development such as retail
and other commercial uses."); Community Characteristics Report 34 (2011) ("Areas near interchanges can become
attractive locations for retail and other commercial land uses.").
55

$811 million in total economic impact through 2030.327 The FEIS and supporting documents
acknowledge that Complete 540 would cause growth,328 but they fail to account sufficiently for
the degree of "induced growth" and development to the area.
Regional and local planners also expect the highway to cause growth. As the 2015
Community Impact Assessment states:
While economic development is not an explicit component of the purpose of the
Complete 540 project, local, regional, and state planners and elected officials
believe the project would improve the economic competitiveness of the project
area. The municipalities in the project area anticipate that the project will spur
commercial and industrial growth near interchange areas, increasing local tax
bases and providing new jobs for area workers.3z9
CAMPO has found that proximity to highway interchanges is one of the principal
influences on where future development occurs33o and that the highway "should be a stimulus for
economic development" in Garner.331 Johnston County planners expect that Complete 540 will
"encourage development"332 and "facilitate growth."333 The county's economic development
director expects Complete 540 to have a big impact on the county.334 Wake County planners
share similar expectations. In a letter to NCDOT, the Director of Wake County Planning,
Development and Inspections stated that the Orange Route has "played a key role in identifying
areas for non-residential development," some of which are already being developed according to
plan.33s The Wake Board of Commissioners expressed support for the Orange Route on the
327 Triangle ExpYessway, USDOT, https://www.transportation.gov/tifia/financed-projects/trian 1� e-expressway (last
visited Feb. 14, 2018). Attachment 118.
328 See FEIS 23-24 (effects on water quality could be greater under build scenario due to induced growth) 62
(expected growth); ICE Memorandum 1, 24; Community Impact Assessment (2015).
3z9 Community Impact Assessment E-4 (2015); see also FEIS 23 ("local governments in the study area have adopted
land use plans that include completion of the 540 Outer Loop").
330 2040 Long-Range Transportation Plan 38 (2013), http://files.www.campo-
nc.us/Plans/MTP/2040/2040_Joint MTP_Ch� 6 v5 4-1-13.pdf. Attachment 119.
331 Core Technical Team Meeting #2, SouTxEAST A�A STUDY 6(July 9, 2015),
http://www.southeastareastudy.com/documents/20150709%20CTT%20Meeting%20Notes.pdf. Attachment 120.
332 2030 Comprehensive Plan, Johnston County, 25 (2009),
http://www.johnstonnc.com/files/plannin /g comprehensive%20plan%2003-02-09.pdf, Attachment 121; see also On
the Road 2017: Johnston County, Tx�AtvGLE Bus. J. (2017),
https://www.bizjournals.com/trian,gle/news/2017/06/30/on-the-road-2017 johnston-counry.html?s=print (Johnston
County leaders expect regional transportation plan to stimulate economic development), Attachment 122.
333 Integrated Planning For School And Community (IPSAC) Land Use Study Report, Johnston County Schools, 7
(2014),
https://www.j ohnston.kl2.nc.us/cros/lib/NCO2214550/Centricity/Domain/94/20140428_JCS_LUS_FINAL.pdf.
Attachment 123.
33a On the Road 2017: Johnston County, Tx�IVGLE BUS. J. (2017),
https://www.bizj ournals.com/trianele/news/2017/06/30/on-the-road-2017-j ohnston-county.html?s=print.
Attachment 122.
33s Final Stakeholder Involvement Report 434 (2017).
56

grounds that residents, businesses and property owners face uncertainty as long as different
alternatives are under consideration.336
Municipalities in the study area also expect the highway to induce growth.337 In its
comprehensive plan, Holly Springs anticipates that its "Northeast Gateway" community growth
area will become "a commercial destination with a regional commercial center proposed for the
future NC540 interchange,"338 and that this area will not face development pressure until
Complete 540 is completed.339 planners expect Complete 540 to cause a"building boom" in
Holly Springs.34o The town of Apex expects that Complete 540 may bring development
pressure,341 and Wake Forest considers proximity to I-540, "which eventually will circle
metropolitan Raleigh," important to its economic development.342 Fuquay-Varina expects
through-trips to increase dramatically with Complete 540, creating "great opportunities" for
growth343 while increasing traffic344 and creating a barrier between a portion of the town and the
majority of Fuquay-Varina.34s
State and municipal representatives have made their expectations clear during the NEPA
process. State Senator Chad Barefoot testified that "540 is extremely important and critical to
our economic future in this area of Wake County and we must build it."346 At a community
meeting the representative from the Town of Apex stated that he believed Complete 540 would
"make economic development explode" in the Garner area.347 Similarly, a representative from
336 Id. at 418.
33� See Ben Graham, Towns plan for development spurred by 540 expansion, T1uANGLE Bus. J., (2018),
https://www.bizjournals.com/triangle/news/2018/O1/18/towns-plan-for-development-spurred-by-540.htm1 ("town
officials in southern Wake County are already preparing for the new development that could come in the wake of the
highway expansion"). Attachment 124.
33a Vision Holly Springs: Town of Holly Springs Comprehensive Plan Amended Supplement #4, 1-5,
https://www.holl�springsnc.us/DocumentCenter/View/508. Attachment 125.
339Id. at 1-9. Attachment 125.
340 Kathryn Trogdon, Holly Springs talks growth impacts amid increasing population(2016),
http://www.newsobserver.com/news/local/community/southwest-wake-news/article63386967.htm1. Attachment
126.
34' The Apex Comprehensive Plan, Apex, NC, 2(2013), available at
http://www.ape�c.org/DocumentCenterNiew/494. Attachment 127.
34z Strategic Economic Development Action Plan for the Town of Wake Forest, North Carolina 8(2005),
https://www.wakeforestnc.,�ov/Data/Sites/1/media/business/wakeforestecondevplan%209-20-OS.pdf. Attachment
128.
343 2035 Community Vision Land Use Plan, Fuquay-Varina, 55 (2017), https://www.fuqua�
varina.org/documentcenter/view/2484. Attachment 129.
34a Id. at 38. Attachment 129.
345 Id. at ll 8. Attachment 129.
346 Final Stakeholder Involvement Report 262 (2017).
347 2014 Alternatives Development and Analysis Report, Attachment 4, Transportation Advisory Committee,
December 12, 2012 Minutes at 4, available at
https://xfer.services.ncdot.gov/PDEA/Web/Complete540/reports/C540_Alts_0514.pdf. Attachment 130.
57

Knightdale believed that economic growth would be inhibited until Complete 540 was built,34s
and the representative from Holly Springs believed it growth would follow.349 Garner's town
manager testified that the town's growth plans are "contingent on the development" of Complete
540 along the Orange Route.3so
Representatives from the business community also expect Complete 540 to cause
significant growth.351 The CEO of the Greater Raleigh Chamber of Commerce believes that "the
Complete 540 project opens up the southern part of Wake County for expanded development and
new commercial, industrial and office opportunities."352 The freeways chair of the Regional
Transportation Alliance ("RTA") believes that Complete 540 is "an economic development
issue, too, as companies considering expanding in North Carolina are looking at how a state's
government supports vital infrastructure projects."353 The RTA believes, "if we build it, they can
come." 3s4 The executive director of Holly Springs' Chamber of Commerce expects Complete
540 to enable expanded growth, pointing out that businesses consider freeway access when
making decisions on location.3ss
Indeed, Complete 540 is already affecting growth. Complete 540 will directly cause
commercial and residential development in Apex, where the proposed Veridea development
would be "almost impossible" without a new interchange, which will function as its "front door,"
348 Id. at 5. Attachment 130.
349Id. at 6. Attachment 130.
sso Final Stakeholder Involvement Report 272 (2017); see also id. at 505 (Town of Garner comments on DEIS
concerning expected growth in corridor); Press Release: 540 accelerates, GARNER CxAMBER oF CoMMERCE (Dec.
22, 2017), http://business.�arnerchamber.com/news/details/news-release-12-22-2017 (declaring highway a"top
freeway priority"), Attachment 131.
3s' See Rating Action: Moody's upgrades Triangle Expressway's (NC) senior lien revenue bonds rating to Baa2 from
Baa3; outlookstable, MOO�Y'S IlvvESTOxs SExvICE (Dec. 21, 2017), https://www.moodvs.com/research/Mood,�
up�rades-Triangle-Expressways-NGsenior-lien-revenue-bonds-rating--PR_904371552 (recognizing that Complete
540 could "lead to higher level of traffic and revenues on the corridor"). Attachment 132.
ssz press Release: Big News! Complete 540 highway project ahead of schedule, GA�uvER C�BER OF COMMERCE
(Dec. 22, 2017), http://business.,garnerchamber.com/news/details/big-news-complete-540-highway_project-ahead-
of-schedule. Attachment 133.
353 See Lauren K. Ohnesorge, NCDOT Secretary: We want to accelerate I-540 project, TRIANGLE BUS. J.,
https://www.bizjournals.com/trian,gle/news/2017/07/14/ncdot-secretarv-we-want-to-accelerate-i-540.htm1(last
visited Feb. 14, 2018). Attachment 134.
ssa America's Most Forward-Moving Region: RTA 2018 Triangle Mobility Report, REG'L TRANSP. ALL. 8(2018),
http://letsgetmoving.org/cros/wp-content/uploads/2018/O1/RTA-Final-printable.pd£ Attachment 135.
sss Final Stakeholder Involvement Report 275 (2017); see also id. at 597 (email from Morrisville Chamber of
Commerce to Complete 540 team expressing same); ICE Memorandum 4, ii (2017) (acknowledging growth and
development patterns likely influenced by proximity to major transportation facilities and commercial and retail
centers); Press Release: Big News! Complete 540 highway project ahead of schedule, GA�uvEx CxAMBEx OF
CoMMExCE (Dec. 22, 2017), http://business.�arnerchamber.com/news/details/big-news-complete-540-highwa�
project-ahead-of-schedule (explaining that Raleigh Chamber of Commerce CEO believes that "[w]hen recruiting
companies, infrastructure is a critical selling point."), Attachment 133.
:

according to the town's transportation engineer.3s6 The Community Impact Assessment
acknowledges that the project "is dependent upon construction of the Complete 540 project."3s�
The development will include 2 million square feet of office/industrial space, 3.5 million square
feet of retail and 8,000 residential units,358 and could bring 30,000 jobs.3s9 Furthermore,
commercial developers are promoting new developments based on proximity to the route for
Complete 540,36o as they do along the existing route.361 The towns of Fuquay-Varina362 and
Holly Springs363 are doing the same.
A. Existing Portions of I-540 Caused Extensive Growth
Recent experience has shown that construction of a large highway in this area will cause
substantial growth; this is precisely what happened following construction of the existing
portions of I-540.
Municipal planners expected growth from previous portions of I-540. The town engineer
for Holly Springs expected it to "spark investment in western Holly Springs by encouraging
more residential and commercial development in the area, where there are still many large pieces
of undeveloped land" and making "existing subdivisions in the area more accessible and
desirable."364 The mayor expected land prices to spike in the area near the interchange.36s
356 Kathryn Trogdon, New TriEx interchange to improve access to growing Apex, Holly Springs, TxE NEWS &
OBSExvEx (May 04, 2016), http://www.newsobserver.com/news/local/communitv/southwest-wake-
news/artic1e75408412.htm1. Attachment 136.
3s' Community Impact Assessment 42 (2015),
https://xfer.services.ncdot.�ov/PDEA/Web/Complete540/reports/C540_CIA_0615.pd£ Attachment 137.
ssa Veridea, Town of Apex Economic Development, https://www.apexnc.org/910/Veridea (last visited Feb. 14,
2018). Attachment 138.
3s9 Community Impact Assessment 42 (2015),
https://xfer.services.ncdot.,gov/PDEA/Web/Complete540/reports/C540_CIA 0615.pdf. Attachment 137.
36o See, e.g., Fairview Village, Cary, NC, CASToINFo.coM, http://www.castoinfo.com/retail/portfolio/north-
carolina/fairview-villa�e/ (last visited Feb. 14, 2018) ("Site is located less than 2 miles away from future
Expressway Southeast Extension which will complete the I-540 Outer Loop around the greater Raleigh area.").
Attachment 139.
361 See, e.g., Hilltop Shopping Center, CENTER MANAGEMENT, http://www.centermgmt.com/propert�
brochure.aspx?id-1741 (noting location in Fuquay-Varina ` just minutes from the ever-expanding Triangle
Expressway"), Attachment 140; Woodcreek, NOxTxSu�E REALTY, https://www.northside-
realty.com/neighborhood/woodcreek-holl�prings-nc (last visited Feb. 14, 2018) ("Woodcreek is also located just a
mile from Hwy 55 and the Triangle Expressway ...."), Attachment 141; Shopping CenterForLease, EDWA�S
COMMERCIAL REAL ESTATE,
http://c.ymcdn.com/sites/www.ncchiro.org/resource/resm r/g Temporarv_files/Greenwood_Commons_Flyer.pdf,
Attachment 142; Highcroft, KELLEx Wa,L��v1s,
https://www.trian�lehomesandrealestate.com/nei,�hborhood/hi h,g croft (last visited Feb. 14, 2018), Attachment 143.
36z Infrastructure, FUQUAY-VARINA ECONOMIC DEVELOPMENT DEPARTMENT, https://www.fuqua�
varina.or,�/596/Infrastructure (last visited Feb. 14, 2018) ("proposed I-540 Southern Expressway ... will "even
greater access"). Attachment 144.
363 2014 Developer's Luncheon: Come Grow With Us: An Update on Growth & Development in Holly Springs,
Slide 30, https://www.holl�springsnc.us/DocumentCenterNiew/7089. Attachment 145.
36a Id. Attachment 145.
59

Following the 2011 opening of the Triangle Expressway building permits in Holly Springs rose
47 percent in 2011 and again in 2012.366 Similarly, the Town of Apex expected the 2012 portion
of the Triangle Expressway to make Apex a"destination of choice" for employers, workers, and
retailers.367 In its 2013 comprehensive plan, the first "supporting recommendation" for
economic growth is to identify "new industrial/business/office park sites totaling 100-150
contiguous acres on NG55, US-64, US-1, and Jessie Drive to accommodate non-retail
employment" because these roads "capitalize on access to NG540." 368 The third
recommendation is to "[i]dentify and reserve at least one industrial/business park parcel over 50
acres near an NG540 interchange for a potential major employer relocation, taking advantage of
the attractiveness of the confluence of three limited access highways" and maintain dialogue
with the developers of Veridea.369
The planners were correct, and rapid growth followed. Beau Memory, Executive
Director of the Turnpike Authority, declared, "[a] s a result of the Triangle Expressway, we're
seeing an explosion of growth around the facility," adding that additional interchanges would
also bring growth.370 Real estate developers have found the road was a"selling point for
homebuyers."371 Shopping centers have sprung up, largely within a few miles of the road.3�2
The Triangle Expressway led to the development of the Holly Springs Towne Center shopping
plaza.373 The expressway also "created new market opportunities for development" in Cary.3�4
In Knightdale, commercial building permits nearly quadrupled and permits for new homes nearly
doubled as a result of the northern portion of I-540.3's
Raleigh was "reshaped" between 1997 and 2007 "as I-540 has fueled a surge in
residential, commercial and office development from Brier Creek near Raleigh-Durham
36s Id. Attachment 145.
366 Jeffrey Spivak, Toll Roads: The Route to Redevelopment?, U�Alv LArr� (2013),
https://urbanland.uli.org/industry-sectors/infrastructure-transit/toll-roads-the-route-to-redevelopment/. Attachment
117.
36' The Apex Comprehensive Plan, Apex, NC, 2(2013), http://www.apexnc.org/DocumentCenter/View/494.
Attachment 127.
368 Id. at 33. Attachment 127.
369Id. Attachment 127.
3�o Bruce Siceloff, Two new interchanges will bring more paying customers to Triangle ExpYessway, THE NEWS &
OBSExvEx (Jul. 10, 2015), http://www.newsobserver.com/news/local/counties/wake-county/artic1e27000928.htm1.
Attachment 146.
371 Id. Attachment 146.
372 Toll road credited for Holly Springs construction boom, WRAL.CONt (Oct. 4, 2012), http://www.wral.com/toll-
road-credited-for-hollv-springs-construction-boom/11627169/. Attachment 147.
3�3 Kathryn Trogdon, New TriEx interchange to improve access to growing Apex, Holly Springs, TxE NEWS &
OBSExvEx (May 04, 2016), http://www.newsobserver.com/news/local/community/southwest-wake-
news/artic1e75408412.htm1. Attachment 136.
3�a Cary Community Plan 2040, 195, http://www.townofcary.or�/home/showdocument?id=14055. Attachment 148.
375 I-540 Speeds Growth in Knightdale, WRAL.colvl(June 19, 2007),
http://www.wral.com/news/local/story/1501713/. Attachment 149.
�1

International Airport to Wakefield on Raleigh's Northern end."376 "All this additional
development has worsened congestions on the north-south roads that intersect I-540."377
Already by 2011, residents living on those roads complained of "having to wait five to ten
minutes to make a left turn from their local streets onto arterials that intersect I-540" and of
congestion at interchanges.378 "Transportation planners say that the loop will eventually be
overwhelmed by the growth it is fueling, and traffic will be as congested as it was before the first
section—from I-40 to U.S. 70—opened in January 1997."379 `But by then, hundreds of
thousands more families will have established careers, homes and roots here, thanks in part to the
Outer Loop."3so
Independent analysis further demonstrates the impacts that the existing portions of NC
540 has had on housing growth. Between 1977 and 1997, housing grew gradually to the north
and west of downtown Raleigh.381 But as NC 540 encircled the city between 1997 and 2012,
these areas experienced dramatic growth.382 Analyses of the change in the number of housing
units available in the Raleigh area between 1990 and 2016383 or 2000 and 2016,384 and the
percentage change between 1990 and 2016385 all show the same stark pattern: startling growth
near the existing portions of NC 540 and more modest growth elsewhere. The following map
depicts the percentage change between 1990 and 2016:
3'6 Matthew Eisley & Bruce Siceloff, The News & Observer, Sept. 7, 2007. Attachment 150.
377 WILLIAM M. ROHE, THE RESEARCH TRIANGLE: FROM TOBACCO ROAD TO GLOBAL PROMINENCE 12S �2011�.
Mareover the Turnpike Autharity found that the highest percentage of growth in traffic between 2001 and 2005,
"occurred on I-540 and on various arterial roadways in Morrisville. This may be due to the opening of I-540 to the
east between I-40 and US 1 in 1997." Attachment 150. N.C. TURNPIKE AUTHORITY, TRIANGLE EXPRESSWAY:
COMPREHENSIVE TRAFFIC AND REVENUE STUDY 2-6 (2008�,
https://www.ncdot.gov/projects/trian lg eexpressway/download/triex_200806CompTrafficRevenueStudy_pdf.
Attachment 151.
378Id. at 125. Attachment 151.
379Id. (quoting Eisley & Siceloff, supra note 376 at A1). Attachment 150.
sso jd. Attachment 150.
3s' NC 540 Alternatives, Growth Patterns (1977-1997). Attachment 152.
382 NC 540 Alternatives, Growth Patterns (1998-2018). Attachment 153.
3s3 NC 540 Alternatives, Growth Patterns (1990-2016). Attachment 154.
384 NC 540 Alternatives, Growth Patterns (2000-2016). Attachment 155.
385 NC 540 Alternatives, Growth Patterns, Percent (1990-2016). Attachment 156.
61

B. Interviews with Regional and Local Planners Revealed High Growth
Expectations
As part of the investigation into the indirect and cumulative effects of Complete 540, the
Transportation Agencies interviewed local authorities in a series of ineetings. The summaries of
these meetings provided in Appendix B to the "Memorandum on Local Jurisdiction Outreach
and Methodology Updates (Quantitative ICE Assessment Memo #1)" (hereinafter ICE Memo 1)
reveal high expectations for growth.
Representatives from Angier "hope to improve commutes to Raleigh and RTP."386 Its
town board is "trying to encourage quality growth and manage the wave of growth coming from
the north."387 Representatives expected that the "Old Stage Road corridor could have more
mixed use/commercial under the Complete 540 Build Scenario" and that "East Wimberly will
3s6 ICE Memo 1 at PDF 141. For convenience, page citations to ICE Memo 1 are to the page in the full document.
The page number is preceded by "PDF" in these citations.
387 Id. at PDF 141.
62

likely develop under Build perhaps with some mixed use and commercial."388 Furthermore, "NC
55 will be more commercial at nodes under Build."389 More broadly,
Local planners and the Town Mayor feel that completing NC 540 will make a
significant difference in development. Under the Complete 540 No Build, NC 55
may need widening to handle traffic to 540. There would be pressure to increase
the number of lanes on US 401. Piney Grove Wilbon may be expanded and NC
210 and Old Stage Road may be multi-lane.390
Representatives from Apex believed that some parcels in the eastern extraterritorial
jurisdiction (ETJ) section of town could be "developed more densely as townhomes or
apartments."391 Apex representatives noted that there "has been development interest in the
area" around the existing NC 540 interchange with South Salem Street (Old US Highway 1) and
mixed use development is planned for the area.392 The Veridea area west of NC 55, which will
be mixed use and light industrial, is "slated for Transit-Oriented Development and mixed use."393
"The mixed use development planned around the existing NC 540 was spurred by the existing
portion of the roadway," although it has been delayed by other factors.394 The town's planning
director believed that the changes discussed in the meeting would occur regardless of the
construction of Complete 540 because of existing access to NC 540.39s
Representatives from Cary also expected growth. "The new Cary land use plan shows a
large commercial area between Ten-Ten Road and I-540 as an employment center and this would
only be likely if Complete 540 were built."396 Two mixed-use centers were recently built or
started in this area.397 Representatives believed that the "I-540 Build alternative would
accelerate development but not change density," although Cary would not be "completely built
out by 2040" under either the build or no-build scenario.39s
Clayton's town planner described the town as a"bedroom community primarily serving
Wake County employers" where development is "driven by low land prices and proximity to
employers in the industrial area of the town."399 Accordingly, representatives believe that the
388 Id. at PDF 141.
389 Id. at PDF 142.
390 Id. at PDF 142.
391 Id. at PDF 144.
39Z Id. at PDF 144.
393 Id. at PDF 144.
39a Id. at PDF 144.
39s Id. at PDF 144.
396 Id. at PDF 145.
397 Id. at PDF 145.
39a Id. at PDF 145.
399 Id. at PDF 149.
63

Complete 540 interchange with Rock Quarry Road will lead to more residential development in
the area.400 They also believed that the "development of Complete 540 could put more pressure
on th[e] area around NC State University property," where "[c]ommercial facilities and
apartments may develop," resulting in "higher density residential development in the north and
commercial development along US 70 Business."4o1
Because Fuquay-Varina's current land use plan was from 2006, representatives believed
it reflected land use without I-540.402 "Town planners said higher density would occur under the
Build scenario but it is hard to predict."4o3 Representatives believed that future development
"will probably be suburban commercial and mixed-use" and will be concentrated around four
nodes, foremost among them the "[v]icinity of I-540/ US 401," where planners anticipated that
"the pace of commercial development would be accelerated with the Complete 540 Build
Alternative" at I-540/ US 401,404 In addition, County representatives believed that development
would be slower at the US 401/Ten-Ten Road intersection under the no-build scenario and that
the build alternative would accelerate growth on the west side of town.4os Representatives
believed that "[d]evelopment will follow infrastructure."4o6
Town of Garner representatives believed that "Some residential growth may result in the
US 401/Swift Creek area under the Build Scenario," with the highest density near the Ten-Ten
Road, although development would be limited by the Swift Creek Land Management Plan.4o�
With Complete 540, "a Suburban Commercial Center may develop" near the interchange with
Old Stage Road that would be smaller without Complete 540.408 At the interchange with Benson
Road, Complete 540 would result in a"suburban commercial center" rather than a
"neighborhood commercial center," and "development along Cleveland School Road would be
bigger and denser."4o9 "Development pressures may increase the density of residential
development" near the Complete 540 interchange with I-40.410 The area near the Complete 540
interchange with Rock Quarry Road could become a"suburban commercial center" whereas it
would "likely be smaller and less dense" under the no-build scenario and a"neighborhood
commercial center" is more likely.411 There would also be residential growth near the high
aoo jd. at PDF 150.
aoi jd. at PDF 150.
aoz jd. at PDF 153.
aos jd. at PDF 154.
aoa Id. at PDF 154.
aos Id. at PDF 154.
ao6 Id. at PDF 155.
ao� Id. at PDF 159.
aoa Id. at PDF 159.
ao9 Id. at PDF 159.
aio Id. at PDF 159.
all Id. at PDF 159.
�'

schoo1.412 "Overall, the Complete 540 project is anticipated to have a positive impact on growth
in Garner" and the "increased development pressure" raises infrastructure questions that would
be "less pressing" otherwise.413
Harnett County planners noted that "substantial development followed 6-8 years" after
construction of NC 87 and "felt that the pace of development associated with Complete 540
could be quicker than the pace of development following the NC 87 project."414 planners
believed that "[b]oth commercial and industrial development may occur under a No Build
scenario, with growth happening sooner if Complete 540 is built."41s They "anticipate some
development pressure for residential uses followed by commercial development would occur
under the Build Alternative" most likely bringing mixed density development to NC 55, Eastern
Parkway, and near Buckhorn-Duncan Road.416 Complete 540 would "increase development
pressure within the FLUSA" by causing construction of a Food Lion just northwest of the
boundary.417 County planners also believed Complete 540 would spur new road projects.
Noting that CAMPO believes NC 55 will need to be widened but the project is unfunded,
planners "feel that NC 55 would score better under NCDOT's prioritization formula if Complete
540 were constructed."418 Furthermore, they believed a widening project on Kennebec Church
Road "will be more likely with Complete 540" and will likely result in higher and mixed density
residential development.419
Holly Springs representatives "indicated that the area currently outside the ETJ to the
west of the interchange would likely be high density residential development under the Build
Scenario and small-lot residential under the No Build Scenario" and two mixed use centers on
Sunset Lake Road "would be more likely to develop to this level of density."420 In addition, a
"Suburban Commercial Center at the junction of Holly Springs Road and Kildaire Farm Road
would likely be a Neighborhood Commercial Center under the No Build Scenario."421 "The
Suburban Commercial Center at the junction of Holly Springs Road and Sunset Lake Road
would likely [be designated] a Neighborhood Commercial Center under the No Build
Scenario."422 Planners believed "the development in this area would be less intense" without
Complete 540.423 Some parcels near the entrance to a mobile home park may "redevelop" and
aiz jd. at PDF 159.
413 Id. at PDF 160.
aia jd. at PDF 164.
ais jd. at PDF 164.
alb Id. at PDF 164.
al� Id. at PDF 164.
aisld. atPDF 165.
a19 Id. at PDF 165.
azo jd. at PDF 166.
azi jd. atPDF 167.
422 Id. at PDF 167.
423 Id. at PDF 167.
65

"[s]ome growth" would be expected in the Northwest Holly Springs area.424 "The Town of
Holly Spring Representatives stated that existing NC 540 has boosted the desirability of Holly
Springs for growth."425 Furthermore, they believed that "[i]f Complete 540 is not built, the
development intensity is not expected to shift to other areas. Instead it is likely to be less
intense."4z6
Johnston County planning representatives believed that the area near the intersection of
NC 42 and NC 50 "is much less likely to experience commercial development under the No
Build Scenario."427 Near the Complete 540 interchange with NC 50, planners were "hoping that
the Complete 540 project will funnel the Pleasant Grove traffic and some of the Smithfield
traffic to the Complete 540 interchange with NC 50" because "[t]his would increase
development potential in the area for the Build Scenario."428 In western Johnston County,
planners expected Complete 540 to reduce traffic "between McGees Crossroads and I-40, which
may spur development south of Middle Creek," which would most likely be small-lot
residentia1.429
Town of Knightdale planners expected that "in general the Build scenario would
accelerate mixed use development east and west of the I-540 alignment."43o At a"primary
activity center" near the Poole Road/ I-540 interchange, "[m]ixed use development would occur
under the No Build and commercial development is more likely under the Build."43'
Raleigh planners expected that the area east of Complete 540 would see commercial
development near the intersection of Poole and Hodge Roads.432 Planners hoped "to keep most
growth inside the Complete 540 corridor."433 They believed that Complete 540 also would likely
create "a couple of Suburban Commercial Centers ... on Auburn-Knightdale Road at Battle
Bridge Road and Rock Quarry Road," also noting that the timing of construction of a few roads
in the area was uncertain, but once built they would "possibly encourage a node of commercial
activity."434 Complete 540 might lead to a suburban commercial center at Grasshopper, and
under a no-build scenario such development was unlikely and would not be redistributed
aza jd. at PDF 167.
azs jd. at PDF 167.
azb jd. at PDF 167.
427 Id. at PDF 171.
aza Id. at PDF 171.
az9 jd. at PDF 171.
a3o Id. at PDF 174.
431 Id. atPDF 174.
a3z Id. at PDF 178.
a33 Id. at PDF 179.
asa Id. at PDF 179-80.
��

elsewhere.435 Planners also believed Complete 540 "might encourage additional growth" in
historically slow-growing southeast Raleigh.436
Town of Smithfield planners noted that the "construction of the US 70 Bypass has
significantly reduced traffic on US 70 Business, leaving the land along this facility ripe for
development."437 "Overall, Complete 540 would improve commutes for Smithfield
residents."438 The planners concluded, somewhat contradictorily, that "[a]lthough the Complete
540 project is unlikely to change the Place Types on parcels in Smithfield's jurisdiction, it may
help development on these parcels come to fruition.i439
Wake County planners were joined by representatives from Fuquay-Varina. Those
representatives expected Complete 540 would cause higher development density in the area
north of the Complete 540 interchange with US 401,4ao Furthermore, "larger undeveloped
parcels and some of the older subdivisions would convert to commercial" under the build
scenario. 441 Growth at the development node would be slower under no-build and "only the big
undeveloped parcels and some of the smaller parcels would be converted to commercial uses."442
Future development in the area of the Complete 540 interchange with Bells Lake Road, which
will likely be annexed by Fuquay-Varina, would be "small scale and more contingent on the
Build Scenario."443
Wake representatives believed that the area in Garner near the Complete 540 interchange
with Old Stage Road "has the potential for major growth with undeveloped large parcels and
redevelopment possibilities" and "might resemble the White Oak area" under a build scenario. 444
By contrast, under no-build, "development would occur at a lower level and be located along
Ten-Ten Road to the south" and "[t]he amount of residential development associated with
commercial development would also decrease."44s Also in Garner, development in the area at
the Complete 540 interchange with NC 50 "may include a Neighborhood Commercial Center
(gas station/dollar store type of development)" if Complete 540 is built.
Town of Wendell planners, like the Town of Smithfield planners, somewhat
contradictorily expected that Complete 540 "would not change place types, [but] it may increase
the pace of development.
a3s jd. at PDF 180.
a36 Id. at PDF 180.
a3� Id. at PDF 183.
438 Id. at PDF 183.
439 Id. at PDF 183.
aao Id. at PDF 186.
a41 Id. at PDF 186.
aaz Id. at PDF 186.
a43 Id. at PDF 186.
aaa Id. at PDF 186-87.
aas Id. at PDF 186-87.
67

C. The Quantitative ICE Study Lacks a Rational Basis and Employs an
Arbitrary Methodology
Despite this 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, the Transportation Agencies assert in the Quantitative ICE analysis attached to the FEIS that
the highway will, in fact, have a fairly negligible impact on growth patterns. The Quantitative
ICE concludes that Complete 540 would only result in 7,000 more households in the study area
by 2040, compared to a"no build scenario" and only a one percent difference in developed
acreage between the two scenarios—equating to just 6,000 additional developed acres if the
highway is constructed. This conclusion is hard to square with the myriad statements from state
and local planners and politicians highlighted above, as well as with the very real experience of
growth and development that has followed the existing segment of the 540 toll highway.
The Quantitative ICE document is difficult to follow. The report 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.446 The
report talks at length about the strong job market in the Raleigh area, the high quality of schools,
and the relatively high median household income and notes that these factors will ensure
continued growth in the FLUSA. This conclusion, however, takes an unjustified leap—
suggesting that the growth that has been seen in the more dense, urban part of the county will
naturally continue at a high pace in the more rural, undeveloped region even without a fast
access toll road in place. This assumption is completely unsupported.
The Transportation Agencies note that MPO forecasts for the region represent a"build"
scenario, i.e., a scenario that reflects how growth would occur if the Complete 540 preferred
alternative was constructed. To assess how much of the growth can be attributed to the highway,
the Agencies were therefore required to create a"No Build" baseline scenario. To do so, the
Transportation Agencies turned to a 2012 study by Duranton and Turner which looks at the
effect of major highways on regional employment over a 20 year period.447 Duranton and Turner
found a relationship between centerline miles of highway miles and changes in employment in a
region. The Transportation Agencies 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.44a
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. Courts have been clear that reliance on
studies that are not specific to the concerns of the particular project fail to satisfy NEPA. See,
a46 See, e.g., Quantitative ICE Report 4.
a4� See generally Gilles Duranton & Matthew A. Turner, Urban Growth and Transportation, REV. OF EC01v.
STu��s, 2012. Attachment 157.
448 Id. at 15. Attachment 157.
�:

e.g., Nat'l Audubon Soc'y v. Dep't of the Navy, 422 F.3d 174, 193-94 (4th Cir. 2005) (holding
that citations to studies that did not correspond exactly to the issue of concern was not sufficient
to demonstrate that the agency had taken a"hard look").
The data in the Duranton/Turner study is primarily very historic, and in any case ends in
2003. As such, the data fails to acknowledge the shifting trends and preferences related to
driving, public transportation and lifestyle preferences noted above that have occurred over the
past 15 years.
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 at all
that this would be the case:
Although it will connect to interstate highways and will 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.449
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
the Transportation Agencies have failed to "take a hard look" at how the highway will impact
growth.4so
Beyond the assumptions and leaps of logic that stem from totals derived from 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 scenario, is
allocated to sub-area zones. This step is critical since it essentially determines the extent to which
the Build scenario increases traffic near the proposed exits of NC 540. Therefore, without 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 the "No-Build" scenarios are converted into acres of development.
The ICE analysis takes a number of arbitrary steps to eliminate almost half the growth
that it had found to be attributable to construction of preferred alternative by arbitrarily excluding
areas of impacted counties that are deemed to be "outside" the study area to arrive at a projection
a49Id. at 14. Attachment 157.
aso E-mail from Brian F. Yamamoto, N.C. Dep't of Transp., to Brian Wert, N.C. Dep't of Transp., and Scott Slusser,
N.C. Dep't of Transp. (May 5, 2016). Attachment 158.
�•

where the preferred alternative has just a one percent impact on development.4s1 This approach
calls into question whether the correct study area has been used—if almost half 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 the local planners noted above.
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. The analysis we have 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 fails the requirement of NEPA that alternatives should be presented in
comparative fashion.
D. The Quantitative ICE Calls Into Question the Purpose of the Project
As noted above in Section IV(1) the Quantitative ICE demonstrates that the preferred
alternative fails to meet one of the two primary purposes of the proj ect�o improve forecast
congestion on existing roads. While the FEIS shows that the project would overall reduce daily
congestion by 8000 VHT, it also shows the project would result in an increase of daily travel
time by 3000 VHT. This means that the project would likely have a small positive impact on
peak hour delay, but at a significant price of increasing delay throughout the remainder of the
day. In other words, if you're a commuter using the full length of the road in the morning peak,
this project would, on average, save some time, but for your spouse or on your return trip, daily
traffic would actually be more congested on local streets, as your fellow residents converge to
use the road and the development it attracts.
The ICE also shows that primary benefits will flow to travelers on parallel routes to the
proposed project, particularly Ten Ten Road, and Auburn-Knightdale Road, each of which
would see traffic drops of about 35%, compared with the "No-Build" scenario. But other roads,
particularly US 1 and NC 55, would see very large increases in congestion. The ICE report
makes this clear, stating:
The changes in traffic volumes show that many east-west roadways would see
reductions in volumes, suggesting that trips will divert to the new facility. At the
same time, many of the north-south roads, particularly those that access the Build
Alternative from the south, would see greater than 10 percent forecasted increases
in volumes. This pattern represents a predictable shift in traffic to the PA from
existing east-west roads, many of which are congested today or forecasted to be
congested in the future, such as NC 42 west of Fuquay-Varina.4s2
These increases in congestion on North-South roads should have been fully addressed
and considered when the Transportation Agencies were screening for alternatives. Instead, the
asi Quantitative ICE Report 18-34.
asz Id. at 80-81.
70

agencies presented the false illusion that the preferred alternative would just generally provide
ubiquitous congestion relief. It is imperative that the public be given the opportunity to study
upgrades to the existing highway system such as ACCESS2040 and other alternative solutions
with information about the full impact of the different project alternatives before them.
In a similar vein, the Transportation Agencies had a duty to provide this more in depth
look at induced growth at an earlier stage in the process and for a full range of alternatives to
meet the requirements of other key federal laws including Section 4( fl of the Department of
Transportation Act, Sections 401 and 404 of the Clean Water Act, the Endangered Species Act
so that the appropriate permitting agencies, and the public could see how different alternatives
and their indirect and cumulative impacts would affect the resources protected under the
applicable statutes.
VII. THE TRANSPORTATION AGENCIES HAVE NOT EXPLAINED HOW THEY
WILL PAY FOR A$2.2 BILLION PROJECT
In their comments on the DEIS, the Conservation Groups noted that the Transportation
Agencies have thus far failed to provide a plan on finance for the project. The Agencies did not
respond to this comment. The FEIS also fails to include any plan of fmance. Indeed, despite
repeat questions, the Transportation Agencies have failed to answer the straight forward question
of how much of the project cost is expected to be covered by toll revenue. Given the
unprecedentedly high cost of the project, this information is key for the public and
decisionmakers looking at alternative solutions.
In responses to comments on the DEIS, the Transportation Agencies also point repeatedly
to their traffic and revenue study to support the fact that the highway will support sufficient
travelers to be economically viable. This document is extremely opaque�t generally lumps
together the existing section of 540 alongside the extension, making it difiicult 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 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 Transportation Agencies' investment in the
$2.2 billion project.
It is also 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
71

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:4s3
Commute; 40-50% of Wage Rate
Personal Travel: 30�0% of Wage Rate
On the Clock Travel: 100% of Wage Rate
For the greater Raleigh area, the overall regional wage rate is about $24.234s4 (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). If Value of Time is, in fact, lower than anticipated in the Traffic and
Revenue
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
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
ass 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.org. Attachment 159.
asa US Dept. of Commerce, Bureau of Labor Statistics, Occupational and Employment Statistics, May 2016. At
https://www.bls.,gov/oes/current/oes_39580.htm. Attachment 160.
72

would be financed by tolls.4ss 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.4s6 Mr. Memory and Mr. Rochelle responded that they did not know
how much of the project would be covered by toll revenue.
The FEIS does not contain a financial plan for the 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. The public and local decisionmakers
do not have the information they need to make an informed decision about advisability of
moving forward with the project, and the resource agencies cannot determine if this project, or
other alterantive solutions are "practicable."
VIII. THE TRANSPORTATION AGENCIES CONTINUED TO ENGAGE IN
PREDETERMINED DECISION-MAHING
NCDOT's public comment period on the DEIS and its 17 new-location highway detailed
study alternatives ("DSAs") closed on January 8, 2016. According to the final Preferred
Alternative Report issued by NCDOT, a total of 1,476 public comments were received during
this DEIS comment period.4s�
Less than a month after the public comment period closed, on Feb 3, 2016, NCDOT
officially announced that it had selected DSA 2, one of the DSAs including the Orange Corridor,
as its recommended preferred alternative for the project—but an NCDOT draft press release
shows that NCDOT had already selected DSA 2 as early as the morning of January 26, barely
two weeks after the close of the public comment period.458 In that draft press release, NCDOT
claims to have considered "public comments made during the public comment period that ran
from Nov. 9, 2015 through Jan. 8, 2016," in reaching its recommendation about the preferred
alternative.4s9
Yet according to a January 19, 2016 e-mail—one week before that January 26, 2016
press release recommending DSA 2 as the preferred alternative—NCDOT staff were still
"compiling the public comments as the comment period ended last week," which were
"staggering" in number.46o Eric Midkiff explained to a concerned citizen that the "decision on
the selection of the preferred route for the Complete 540 project is likely to be made the latter
ass Letter from Kym Hunter and Ramona H. McGee, SELC, to Eric Midkiff, P.E., NCDOT 35 n.171 (Jan. 8, 2016).
Attachment 52.
as6 Attorneys Ramona McGee and Kym Hunter met with Mr. Rochelle and Mr. Memory on January 30, 2018.
as� preferred Alternative Report (Apr. 2016), at 9.
asa E-mail and attachment from Ginny T. Inman, N.C. Dep't of Transp., to Steve Abbott, N.C. Dep't of Transp. and
Mike R. Charbonneau, N.C. Dep't of Transp. (Jan. 26, 2016 9:13 AM). Attachment 161.
as9 E-mail and attachment from Ginny T. Inman, N.C. Dep't of Transp., to Steve Abbott, N.C. Dep't of Transp. and
Mike R. Charbonneau, N.C. Dep't of Transp. (Jan. 26, 2016 9:13 AM). Attachment 161.
abo E-mail from Eric Midkiff, N.C. Dep't of Transp., to Jenny Mcdaniel (7an. 19, 2016 8:36 AM). Attachment 162.
73

part of March." 461 As of February 1, 2016, two days before NCDOT officially announced its
recommended preferred alternative, consultants working for NCDOT were still "working on
responses" to the Conservation Groups' comments on the Complete 540 DEIS by referencing
responses to comments the Groups' counsel had made on an entirely different project.46z
Given it seems unlikely that NCDOT could have reviewed and considered nearly 1,500
comments during the two-week period between the close of the public comment period and when
NCDOT had internally chosen DSA 2 as its preferred alternative (particularly given the fact that
NCDOT was still simply compiling the comments as of January 19). NCDOT either rushed its
decision about selection of the preferred alternative, or had simply predetermined that it would
select DSA 2 without regard to the comments it received.
This is not surprising, s discussed in greater detail in comments on the DEIS, NCDOT
has long favored, pushed for, and planned for a new-location toll highway along the Orange
Corridor as the only real option for the Complete 540 project.463 For example, a collection of
comments and responses on a 2014 draft Indirect and Cumulative Effects Report included a
suggestion to label the Orange Route as having more severe "Future Population Shift" effects
within a table about land use impacts, but the suggestion was rejected because "[w]e want to
make it clear that Red would have a stronger effect in this category and do not suggest putting
Orange/Lilac in this same category."464 A later version of this same document includes a
response to this suggestion, stating "Orange/Lilac would have a stronger attraction for
development than No-Build b/c of the proposed activity center along the corridor, and would
likely be as strong as Red. Please move up one to make this evident."46s And yet the iinal
version of the table in the Indirect and Cumulative Effects Report accompanying the DEIS lists
Orange/Lilac below the Red Route.a66 A 2016 e-mail from NCDOT staff to consultants again
illustrates the persistant bias against the Red Route, suggesting that a bullet point about the Red
Route being disfavored by NMFS and USEPA be removed from a presentation.46'
NCDOT's impossibly quick turnaround between the DEIS public comment period and
the selection of the preferred alternative is another example of NCDOT's ongoing tunnel vision
with regard to the Orange Corridor.
461 E-mail from Eric Midkiff, N.C. Dep't of Transp., to Jenny Mcdaniel (Jan. 19, 2016 8:36 AM). Attachment 162.
a6z E-mail from Jennifer Harris, HNTB, to Christopher Werner, AECOM (Feb. 1, 2016 4:44 PM). Attachment 163.
463 See, e.g., e-mail from Hardin Watkins to Buck Kennedy et aL (Jan. 21, 2011) (reporting that NCTA stated "that
in southern Wake County, the Orange Corridor is likely the only reasonable and feasible corridor"). Attachment
164.
aba Comp540 Response to Comments Matrix (Oct. 31, 2014), at 3. Attachment 165.
a6s Comp540 Response to Comments Matrix CS Comments (Nov. 12, 2014), at 3. Attachment 166.
a66 DEIS Indirect and Cumulative Effects Report (Dec. 2014), 53 at Tbl. 9.
467 E-mail from Eric Midkiff, N.C. Dep't of Transp., to Kiersten Bass, HNTB, and Roy Bruce, HNTB (Feb. 10, 2016
2:03 PM). Attachment 167.
74

IX. CONCLUSION
For the foregoing reasons the Conservation Groups submit that the FEIS for Complete
540 violates NEPA by failing to take a"hard look" at environmental impacts, failing to rationally
analyze a reasonable range of alternatives, failing to adequately consider and respond to public
comments, and illegally predetermining the outcome of the NEPA process. We urge the
Transportation Agencies to go back to the drawing board and publish a Supplemental EIS
looking at a range of less damaging alternatives, including less expensive upgrades to the
existing highway system.
Sincerely,
Kym Hunter
Staff Attorney
���. �;
Ramona H. McGee
Associate Attorney
CC (via e-mail, w/attachments):
Matthew Starr, Sound Rivers
June Blotnick, Clean Air Carolina
Sen. Tamara Barringer
Sen. Chad Barefoot
Sen. Brent Jackson
Sen. Rick Horner
Sen. Jim Davis
Sen. Tom McInnis
Rep. Linda Hunt Williams
Rep. Nelson Dollar
Rep. Darren Jackson
Rep. Jeff Collins
Rep. Kelly Hastings
Rep. Frank Iler
Rep. Phil Shepard
Rep. John Torbett
Rep. Becky Carney
Rep. George Cleveland
Rep. Michael Speciale
75

Commissioner Jessica Holmes
Commissioner Sig Hutchinson
Commissioner Matt Calabria
Commissioner Ery Portman
Commissioner James West
Commissioner Greg Ford
Commissioner John Burns
Mayor Ronnie S. Williams Garner
Mayor Dick Sears of Holly Springs
Mayor Lance Olive of Apex
Mayor Harold Weinbrecht of Cary
Mayor Nancy McFarlane of Raleigh
Mayor Steve Schewel of Durham
Mayor Jody McLeod of Clayton
Mayor James Roberson of Knightdale
Mayor John W. Byrne of Fuquay-Varina
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
Joe Milazzo, RTA
Beau Memory, NCTA
John F. Sullivan, III P.E., FHWA
76