20181598_SELC Request for an SEIS for the Havelock Bypass_20180615

Carpenter,Kristi
From: Wainwright, David
Sent: Wednesday, June 15, 2016 7:08 AM
To: Chapman, Amy; Ward, Garcy
Subject: FW: Request for an SEIS for the Havelock Bypass
Attachments: SELC Request for an SEIS for the Havelock Bypass.pdf
�
From: Kym Hunter [mailto:[e-mail]]
Sent: Tuesday, June 14, 2016 5:23 PM
To:'[e-mail]' <[e-mail]>; Hancock, Richard W
<rwha ncock@ ncdot.gov>
Cc: '[e-mail]' <[e-mail]>; '[e-mail]'
<[e-mail]>; '[e-mail]' <[e-mail]>; Yamamoto,
Brian F <[e-mail]>; McLamb, Carr <[e-mail]>;
'[e-mail]' <[e-mail]>; '[e-mail]' <[e-mail]>;
'[e-mail]' <[e-mail]>; '[e-mail]'
<[e-mail]>; '[e-mail]' <[e-mail]>;
'[e-mail]' <[e-mail]>;
'[e-mail]' <[e-mail]>; Schafale,
Michael <[e-mail]>; Wainwright, David
<[e-mail]>; Wilson, Travis W. <[e-mail]>;
Geoff Gisler <[e-mail]>; Nadia Luhr <[e-mail]>
Subject: Request for an SEIS for the Havelock Bypass
� �
. .� � .� �.� �� #� � � . � �� . . . .
.� �.� . . . .� �.� � _ . . �
�
.
�
Kym Hunter
Staff Attorney
Southern Environmental Law Center
601 VVest Rosemary Street, Suite 220
Chapel Hill, TTorth Carolina 27516m2356
Phone: (919) 967m1450; Fax: (919) 929m9421
S outhernEnviro nment. 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. Thanl� you.

S 4UTHERN ENVIR�NMENTAL LA� CENTER
Telephone S1S-S6?-145� 601 wEST ROSEMARY STREET, SUiTE 22� Facsimile 91S-S29-9421
CHAPEL HILL. NC 27516-2356
June 14, 2016
Via Electronic Mail and USPS
John F. Sullivan, III
Division Administrator
Federal Highway Administration
310 New Bern Avenue, Suite 410
Raleigh, NC 27601
[e-mail]
Richard Hancock
Manager, Project Development and Environmental Analysis Branch
NC Department of Transportation
1548 Mail Service Center
Raleigh, NC 27699
[e-mail]
Re: Request for a Supplemental Environmental Impact Statement for the
Havelock Bvuass
Dear Mr. Sullivan and Mr. Hancock:
In December 2015, the Federal Highway Administration ("FHWA") and the North
Carolina Department of Transportation ("NCDOT") (collectively, the "Transportation
Agencies") published a Final Environmental Impact Statement ("FEIS") for the proposed
Havelock Bypass ("Bypass"). On behalf of the Sierra Club and Sound Rivers, the Southern
Environmental Law Center ("SELC") submitted comments on that document on February 20,
2016.
Our comments expressed significant concerns about the absence of a concrete,
enforceable agreement between NCDOT and the U.S. Forest Service ("USFS") to regularly close
the Bypass and allow prescribed burning of the Croatan National Forest. This agreement is
essential: the United States Fish and Wildlife Service ("USFWS") has indicated that the
guarantee of regular prescribed burning is a pre-requisite for its conclusion that the Bypass "may
affect, but is not likely to adversely affect" the federally endangered Red Cockaded Woodpecker
("RCW"). In addition, our comments noted that while NCDOT has recently expressed a desire
to convert U.S. 70, including the Havelock Bypass, into an Interstate, it has failed entirely to
analyze the impact that that an Interstate designation would have on the agency's ability to close
the road for prescribed burns.
Charlottesville • Chapel Hill • Atlanta • Ashe�ille • Birmingham • Charlestan • Nash�ille • Richmand • Washington. OC
I00% recycled paper

Our concerns about these issues continue to mount. On April 8, 2016, we were invited
by NCDOT to submit comments on a draft burn agreement ("Draft Burn Agreement" or
"Agreement") between NCDOT and USFS that would theoretically commit the agencies to
future road closures and prescribed burns. We outlined the deficiencies of that Agreement in a
letter to NCDOT on Apri121, 2016.1 We noted that the Agreement failed entirely to create a
specific, enforceable plan for prescribed burns that would reliably protect RCW habitat in
perpetuity. Later, on May 20, 2016, we met with NCDOT and USFS to discuss our concerns
regarding the Draft Burn Agreement. In this meeting, USFS stated its position that:
• the Agreement cannot be legally binding;
• the Agreement must be able to be terminated by either party at any time;
• the Agreement cannot last longer than five years;
• the Agreement cannot contain a clause contemplating the future conversion of
U.S. 70 into an Interstate; and
• the Agreement cannot provide any assurance that NCDOT would continue to
close the Bypass in the event that U.S. 70 is converted into an Interstate.
On May 24, 2016, we sent a letter2 to NCDOT and USFS requesting confirmation of the USFS
position as stated during the meeting, but have not yet received a response.
In addition to our general concerns about the Agreement and USFS's commitment to
conduct prescribed burns, we also note that evidence continues to grow regarding the proposal to
designate the Havelock Bypass as an Interstate. When questioned about this issue, however,
NCDOT has failed to articulate what impact the Interstate designation would have on the closure
of the Bypass for prescribed burns.3
Federal regulations require that an agency "shall" prepare an SEIS when "significant new
circumstances or information relevant to environmental concerns and bearing on the proposed
action or its impacts" arise.4 As we have noted, the proposed conversion of U.S. 70 to an
Interstate has not been acknowledged during the NEPA process and must be addressed in a
Supplemental Environmental Impact Statement ("SEIS") in order to "permit[] the public and
other government agencies to react to the effects of a proposed action at a meaningful time."5
� Letter from Geoff Gisler, SELC, to Secretary Nick Tennyson, NCDOT (Apr. 21, 2016) (Attachment 1).
2 Letter from Geoff Gisler, SELC, to Carr McLamb, NCDOT and Karen Compton, USFS (May 24, 2016)
(Attachment 2).
3 May 20, 2016 Meeting with SELC, NCDOT and USFS held in Raleigh, North Carolina.
4 4o c.F.R. § isoz.9����i�.
5 NC Wildlife Fed'n v. NC Dept. of Transp., 677 F3d 596, 601 (4th Cir. 2012) (quoting Marsh, 490 U.S. at 371).
2

Significant New Information Relevant to Environmental Concerns
It is now undeniable that the conversion of U.S. 70 into an Interstate is the ultimate
concrete objective of NCDOT and Governor Pat McCrory. The intent is to create Interstate
access from I-40 to the Global TransPark, Marine Corps Air Station Cherry Point, and Morehead
City Port.6 Much of the support for this Interstate designation is based on theories of economic
development and military connectivity. � Interstate access is touted as a key component for
growth of the Morehead City Port.B
The Interstate designation is part of Governor McCrory's 25-Year Vision for
transportation, which lists the conversion of U.S. 70 into an Interstate as a strategy for
"enhanc[ing] freight movement and reduc[ing] travel time through the region."9 Likewise,
6 See, e.g., NCDOT Board of Transportation, Apri12016 Meeting Minutes (Apr. 7, 2016) ("Improving the U.S. 70
corridor will not only enhance regional mobility, but it will also strengthen military connections and facilitate better
freight movement to and from our ports and the Global TransPark.") (Attachment 3); NCDOT Board of
Transportation, December 2015 Meeting Minutes (Dec. 3, 2015) (recarding Secretary Tennyson's statement that he
was pleased with the future interstate designation for U.S. 70, a"top priorit[y] for Governor McCrory") (Attachment
4); Press Release, Governor McCrory Unveils Future U.S. 70 Interstate Sign (Mar. 30, 2016) (stating that the future
interstate will "better connect Seymour Johnson Air Force Base, the North Carolina Global TransPark, Marine
Corps Air Station Cherry Point and the Port of Morehead City with the rest of North Carolina and the eastern
seaboard") (Attachment 5).
� See, e.g., Highway 70 Corridor Commission, January/February 2016 Director's Report (Feb. 2016) ("The interstate
designation[] will benefit our military interconnectivity, aid in economic development, create jobs and stimulate
growth in travel and tourism.") (Attachment 6); U.S. 70 Corridor Economic Assessment, Executive Summary (Mar.
7, 2014) ("An interstate quality highway could also help the region be more competitive in inducing additional
business and populations.") (Attachment 7); Highway 70 Corridor Commission, September 2014 Meeting Minutes
(Sept. 18, 2014) ("Lack of interstate-quality access to and from the Global TransPark limits the number and type of
businesses we can attract to this facility.") (Attachment 8).
$ See, e.g., Highway 70 Corridor Commission, August 2012 Meeting Minutes (Aug. 23, 2012) ("Years ago the route
of Interstate 40 was determined based on data from the Wilmington port. Now the Highway 70 Corridar
Commission needs to utilize the Morehead City port data to help its case. The Morehead City port has growth
potential.") (Attachment 9); DERPO Presentation to House Select Committee on Strategic Transportation Planning
and Long Term Funding Solutions (Mar. 28, 2016) ("interstate grade highway access is a critical infrastructure
component for ports") (Attachment 10); NCDOT Rail Division, Eastern Infrastructure Improvement Study Report
(Jan. 2015) (noting the importance of highway improvements for access to Global TransPark and Morehead City
Port) (Attachment 11); NCDOT Rail Division, Eastern Infrastructure Improvement Presentation (Jan. 27, 2015)
(stating that "expanded rail and highway capacity will be required to accommodate significant growth" for the
Morehead City Port) (Attachment 12); Maritime Strategy Presentation to the Joint Legislative Transportation
Oversight Committee (Jan. 13, 2012) (discussing need to improve access between inland trade centers and ports)
(Attachment 13); NCDOT, North Carolina Statewide Transportation Plan: 2040 Plan (Aug. 2012) (discussing the
need for continued upgrades of U.S. 70 to improve access to the Morehead City Port) (Attachment 14); NC
Maritime Strategy, Final Report at 83 (June 26, 2012) ("Morehead City ... is at a significant disadvantage to its
peers in terms of landside highway access.") (Attachment 15).
9 Governor Pat McCrory, 25-Year Vision for North Carolina at 19 (Sept. 2014) (Attachment 16). See also Press
Release, supra note 6("Improving the U.S. 70 corridor is a major part of Governor McCrory's 25-year
Transportation Vision."); NCDOT Board of Transportation, Apri12016 Meeting Minutes, supra note 6(stating that
the future interstate designation for U.S. 70 is "part of the Governor's 25-Year Vision and very important to the
future of North Carolina"); NCDOT Presentation to Highway 70 Corridor Commission (Mar. 19, 2015) (listing long
term strategies for NCDOT, including "[i]ncrementally upgrad[ing] US 70 to interstate standards as proposed in
Governor McCrory's 25-Year Vision") (Attachment 17).

conversion of U.S. 70, including the Bypass, into an Interstate is integral to NCDOT's Strategic
Transportation Corridors Vision, which "aims to provide North Carolina with a network of high
priority corridors that will become part of the Interstate system once they are fully built and
upgraded to interstate standards."10 An Interstate designation for U.S. 70 is also actively pursued
by the Highway 70 Corridor Commission, which works with local governments, state agencies,
and Congress to promote upgrades of U.S. 70."11
As a result of the efforts of Governor McCrory, NCDOT, and the Highway 70 Corridor
Commission, the conversion of U.S. 70 into an Interstate has recently taken strides forward.12
U.S. 70 was listed as a High Priority Corridor in December 2015,13 increasing the likelihood that
the highway will be converted into an Interstate in the future and escalating the ongoing efforts
of NCDOT to secure an Interstate designation for the highway. In March 2016, Governor
McCrory unveiled a"Future Interstate" sign for the U. S. 70 corridor,14 and shortly thereafter,
FHWA approved the name "Interstate 42" and the installation of "Future I-42" signs along U.S.
70. is
Given NCDOT's active pursuit of an Interstate designation for U.S. 70, including the
Havelock Bypass, it is imperative that the Transportation Agencies address how the designation
will affect NCDOT's ability to close the Bypass for regular prescribed burns. The stated position
of the USFS that any burn agreement between that agency and NCDOT cannot include
safeguards to ensure that burning would continue once the Bypass transitions to an Interstate
makes this analysis even more urgent. We urge the Transportation Agencies to draft an SEIS
analyzing these issues as well as other concerns highlighted in our earlier comments.
10 NCDOT Board of Transportation, August 2015 Meeting Minutes (Aug. 6, 2015) (stating that the designation of
U.S. 70 as a High Priority Corridor would advance NCDOT's Strategic Transportation Corridors Vision)
(Attachment 18). See also NC Transportation Network and Strategic Transportation Corridors Framework (Aug.
2015) (Attachment 19).
� 1 See, e.g., Highway 70 Corridor Commission, January/February 2016 Director's Report, supra note 7("Although
we have 25 years to upgrade the Corridors to Interstate standards, it is absolutely imperative that we commence the
process and plan for the future Interstates now."); Highway 70 Corridor Commission, March 2013 Meeting Minutes
(Mar. 12, 2013) ("It was decided to adopt resolutions stating as a unified region that our preferred interstate routes
would be US Highway 264 and US Highway 70. ... The resolution would allow North Carolina Department of
Transportation Division 2 Engineer Neil Lassiter and North Carolina Department of Transportation Division 4
Engineer John Rouse to plan to build the US Highway 70 Bypasses to interstate standards now. The interstate
process would be expedited.") (Attachment 20); Kevin Litwin, "Corridor of Possibility: Infrastructure Projects
Extend Transportation in Eastern North Carolina, Eastern North Carolina Regional Economic Development
Review" (Apr. 2016) (quoting Highway 70 Corridor Commission Director Durwood Stephenson as saying "[t]he
goal for Highway 70 ... is to eventually establish a nonstop freeway from I-40 in Raleigh to the Port of Morehead
City.") (Attachment 21).
12 See, e.g., Highway 70 Corridor Commission, January/February 2016 Director's Report, supra note 7("After years
of persistent urging and strong support from NCDOT leadership, the Governor's office and our Congressional
delegation, we will soon be installing Future Interstate signs along U.S. 70 and 795 corridors.").
13 Fixing America's Surface Transportation Act, PL 114-94 at 1416(a)(83) (Dec. 4, 2015).
14 Press Release, supra note 6.
15 Scott Nichols, WCTI News Channel 12, Highway 70 to Get Future Name of Interstate 42 (May 25, 2016)
(Attachment 22).
�

Thank you for your consideration of these comments,
Sincerely,
��.� � ��.�-�
Geoff Gisler
Senior Attorney
_3
Kym Hunter
Staff Attorney
�,���"'�
Nadia Luhr
Associate Attorney
cc via e-mail: Travis Graves, Lower Neuse Riverkeeper
John Fussell, Sierra Club
Michael Murdoch, Sierra Club
Brian Yamamoto, NCDOT
Carr McLamb, NCDOT
James Cherry, U.S. Forest Service
James Melonas, U.S. Forest Service
Karen Compton, U.S. Forest Service
Gary Jordan, U.S. Fish and Wildlife Service
John Hammond, U.S. Fish and Wildlife Service
Cynthia van der Wiele, U.S. EPA
Tom Steffens, U.S. Army Corps of Engineers
Michael Schafale, NCDEQ, Natural Heritage Program
David Wainwright, NCDEQ, Division of Water Resources
Travis Wilson, NCWRC
5