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Home My WebLink About20181598 Ver 1_2015-09-01 Letter re Reevaluation of Draft EIS for Havelock Bypass_20150901Carpenter,Kristi From: Wainwright, David Sent: Tuesday, September 01, 2015 3:43 PM To: Ward, Garcy Cr. Chapman, Amy Subject: FW: Havelock Bypass- Request for a Supplemental EIS Attachments: 2015-09-01 Letter re Reevaluation of Draft EIS for Havelock Bypass.PDF � From: Kym Hunter [mailto:khunter@selcnc.org] Sent: Tuesday, September 01, 2015 3:39 PM To: 'john.sullivan@fhwa.dot.gov'; Hancock, Richard W Cc: Geoff Gisler; Nadia Luhr; Larissa Via; 'gary_jordan@fws.gov'; 'john_hammond@fws.gov'; 'kcompton@fs.fed.us'; 'jmelonas@fs.fed.us'; 'militscher.chris@epa.gov'; 'thomas.a.steffens@usace.army.mil'; Tennyson, Nicholas J; Blake, Shelley R; Devens, Thomas E; Schafale, Michael; Wainwright, David; Wilson, Travis W. Subject: Havelock Bypass- Request for a Supplemental EIS Dear Mr. Sullivan and Mr. Hancock, Please find attached a letter, which we are also sending by U.S. mail, requesting that FHWA and NCDOT prepare a Supplemental EIS for the Havelock Bypass. We have reviewed FHWA's June 2015 reevaluation of the DEIS for the Bypass and strongly disagree that a SEIS is not needed. Rather, in light of the "significant new circumstances [and] information relevant to environmental concerns and bearing on the proposed action" that are expressly noted in the reevalaution document, the transportation agencies have a legal obligation to prepare a SEIS before taking further steps to move forward with the Bypass. 40 C.F.R. § 1502.9(c)(1). We are available to discuss our concerns at your convenience. Kym Hunter Staff Attorney Southern Environmental Law Center 601 West Rosemary Street, Suite 220 Chapel Hill, North Carolina 27516-2356 Phone: (919) 967-1450; Fax: (919) 929-9421 S outhernEnvironment. org This email may contain information that is privileged and confidential. Unless you are the addressee (or authorized to receive email for the addressee), you may not use, copy, or disclose this email or any information therein. If you have received the email in error, please reply to the above address. Thank you. SOUTHERN ENVIRONMENTAL LAW CENTER TelepM1one91496]-Sd50 601WESTROSEMAMSTREEf.SUITE2]0 Facsimile9149]9-94]I CHAPELHILL NC Z]516]356 September 1, 2015 Via E-mail and U.S. Mail John F. Sullivau, III Division Administrator Federal Highway Adminis�ation 310 New Bem Avenue, Suite 410 Raleigh, NC 27601 john.sullivan�a�,/irwa.dot.gov RicLard Haucock Mauager NCDOT - Project Development aud Environmental Analysis Unit 1548 Mail Sexvice Center Raleigh, NC 27699 rwhancock@ncdotgov Re: Reevaluafion af Draft EIS for the Ilsvelock Bvoass Deaz Mr. Siillivau aud Mr. Haucock: In September 2011, the Federal Highway Administration ("FIiWA") aud the North Cazolina Depaz[ment of Trauspor[ation ("NCDOT") published a Draft Envuonmental Impact Statement ("DEIS") for the Havelock Bypass. On beLalf of the North Cazolina Wildlife Federation, the Cypress Group of the North Cazolina Chapter of the Siena Club, aud North Cazolina Coastal Federation, the Southem Envuonmental Law Center ("SELC") submitted comments on tLat doc�ent on November 21, 2011. Because the DEIS failed to contain a rauge of siguiScaut infoxmation key to envuonmental concems, SELC mquested pubGcation of au Supplemental EIS ("SEIS"). As pertinent infoxmation key to auy environmental review of the proposed Bypass continued to emerge SELC submitted additional comments requesting the preparation of a SEIS in March 2012 and October 2012. In June 2015, NCDOT completed a mevaluation of the DEIS for the Havelock Bypass to dete�mine whether a SEIS was needed. In the reevaluation, FHWA concluded tLat "[a] supplemental EIS is not required because there are no ... siguificaut new cucumstances or infoimation relevaut to envuonmental concems." Reevaluatiott ofDraft Envirottmetttallmpact Statement, p25. We disagree. The mevalualion itself makes cleaz tLat a great deal of signi5caut Charlottesville • Chapel Hill • AtlaMa • Asheviile • Birtningham • Charleston • Nashvine • Richmond • Washington. DC 1OG96 �ecycletlpa0ei John F. Sullivan Richard Hancock September 1, 2015 Page 2 new information has come to light since publication of the DEIS, making a SEIS a legal necessity. We therefore urge the transportation agencies to comply with federal law and complete a SEIS and make it available for public review before moving forward with the project. Supplemental Environmental Impact Statement Federal regulations require that an agency "shall" prepare a SEIS where "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts" arise. 40 C.F.R. § 1502.9(c)(1). Likewise, FHWA regulations provide that an agency "shall" prepare a SEIS where "[n]ew information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS." 23 C.F.R. § 771.130(a)(2); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989) ("[I]f the new information is sufficient to show that the remaining action will `affec[t] the quality of the human environment' in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared."). The new information noted in the reevaluation, in addition to the concerns raised in our March 2012 and October 2012 comments, must be addressed in a SEIS in order to "permit[] the public and other government agencies to react to the effects of a proposed action at a meaningful time," as intended under NEPA. NC Wildlife Fed'n v. NC Dept. of Transp., 677 F.3d 596, 601 (4th Cir. 2012) (quoting Marsh, 490 U.S. at 371). "When relevant information `is not available during the impact statement process and is not available to the public for comment, ... the impact statement process cannot serve its larger informational role, and the public is deprived of its opportunity to play a role in the decision-making process." Id. at 604-OS (quoting N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011). Significant new information relevant to environmental concerns The reevaluation discusses a significant amount of new information that has arisen since the publication of the DEIS. Most striking is the list of studies conducted in the intervening years since the publication of the DEIS. Many of these studies and reports should have been included in the DEIS but were not: • Prescribed Burn Plan Agreement • Spring species (Solidago verna) report • RCW Management Plan for CWMB • Geoenvironmental Assessment for Waste Transfer Facility • Updated rare species/PETS report • Stream and Wetland delineation update John F. Sullivan Richard Hancock September 1, 2015 Page 3 • Summer species report • Fall species (Paspalum) report • Indirect and Cumulative Impacts Assessment • Rare Plant Mitigation/Non-native Invasive Analysis • Bryophyte report • RCW Biological Assessment • US 70 Havelock Bypass Biological Evaluation • Biological Evaluation Report • Migratory Bird Evaluation • CNF Management Indicators Species Report • CNF RCW Territory Analysis Reevaluation, p.9. Moreover, the reevaluation also noted substantial errors in the DEIS that resulted in a dramatic underestimation of aquatic impacts. For example, a new analysis now shows that impacts to wetlands were underestimated by "25-31 acres." Reevaluation, p.14. In a new analysis, the estimated wetland impacts for Alternative 3, the Preferred Alternative, increased by 25 acres, or 22 percent of the original estimate. Id. Likewise, total stream impacts for the Preferred Alternative have "increased by 433 feet as a result of stream and wetland delineations conducted in 2013." Id. at 14-15. These are significant increases in devastating environmental impacts that deserve full public scrutiny. The range of new information that has arisen since the publication of the DEIS is without doubt "significant new ... information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1). As such, it is imperative that the transportation agencies prepare a SEIS that makes all the significant new information available for the public review. Until this important legal step has been taken the transportation agencies should refrain from any further action to move forward with the Preferred Alternative in place of other less damaging solutions, such as improvements to existing U.S. 70. We would be happy to meet with you to discuss these concerns at your convenience. Sincerely, �� Geoff Gisler Senior Attorney ggisler@selcnc. org John F. Sullivan Richard Hancock September 1, 2015 Page 4 _ � Kym Hunter Staff Attorney khunter@selcnc. org �� Nadia Luhr Associate Attorney nluhr@selcnc. org cc (via email): Gary Jordan, USFWS John Hammond, USFWS Karen Compton, USFS James Melonas, USFS Chris Militscher, USEPA Tom Steffens, USACE Secretary Nick Tennyson, NCDOT Shelley Blake, NCDOT Ted Devens, NCDOT Michael Schafale, NHP, NCDENR David Wainwright, NCDWQ Travis Wilson, NCWRC