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S O U T H E R N E N V I R O N M E N TA L L AW C E N T E R

Telephone 919-967-1450 601 WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356

May 17, 2019

VIA EMAIL AND FEDEX

John F. Sullivan, II, P.E.


Federal Highway Administration
310 New Bern Avenue, Suite 410
Raleigh, NC 27601-1418
john.sullivan@dot.gov

John Conforti, REM


Senior Project Manager
Project Management Unit
North Carolina Department of Transportation
1598 Mail Service Center
Raleigh, NC 27699-1595
jgconforti@ncdot.gov
capefear@ncdot.gov

RE: Cape Fear Crossing Draft Environmental Impact Statement

Dear Mr. Sullivan and Mr. Conforti:

On behalf of Audubon North Carolina, Cape Fear River Watch, the Cape Fear Group of
the North Carolina Sierra Club, Clean Air Carolina, the North Carolina Coastal Federation, and
the North Carolina Wildlife Federation, the Southern Environmental Law Center (“SELC”)
submits the attached comments on the Draft Environmental Impact Statement (“DEIS”) for the
Cape Fear Crossing project (“the Bridge” or “the Project”) prepared by the North Carolina
Department of Transportation (“NCDOT”).

The DEIS makes clear that this project cannot move forward in its current form. The
DEIS is riddled with errors, omissions, and misrepresentations regarding the Project’s financial
viability, traffic forecasts, and environmental and community impacts. In spite of these
inadequacies, the DEIS clearly demonstrates that the detailed study alternatives (“DSAs”) for
this nearly billion dollar highway and bridge would bring about more harm than good. It is
imperative that NCDOT search for alternative solutions that actually meet the area’s
transportation needs and do not impose such devastation upon the environment and communities
of New Hanover and Brunswick Counties.

Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC
May 17, 2019
Page 2
The following comments detail many flaws of the project and NCDOT’s review of the
project, including the following key shortcomings:

• The project’s high price tag—as much as $1 billion—remains unfunded and


renders the project impracticable.
• NCDOT ignored the most up-to-date sea level rise projections and misrepresented
the impacts of accelerating sea level rise in relation to the project.
• NCDOT failed to look at a range of options that would be substantially less
expensive and cause significantly less destruction to communities and the
environment.
• NCDOT relied on outdated, opaque traffic forecasts that fail to account for the
Project’s likely impacts on land use and socio-economic characteristics in the
study area.
• Each DSA would cause extensive damage to the natural environment, including
direct impacts to dozens of acres of wetlands and several thousand feet of streams,
as well as insufficiently-studied impacts to wildlife habitat, fish, and air quality.
• NCDOT failed to analyze the project’s full range of impacts on endangered and
threatened species, including the Atlantic sturgeon and red-cockaded woodpecker.
• NCDOT failed to provide any information about the likely indirect and
cumulative impacts corresponding to each DSA and omitted any evaluation of the
impacts that would occur if the project is tolled.
• Every single one of NCDOT’s six DSAs would cause “high or adverse” impacts
to low-income and minority communities.

I. LEGAL BACKGROUND

The National Environmental Policy Act (“NEPA”) is the nation’s keystone


environmental law designed to ensure careful decision making and a rational consideration of
impacts and alternatives. It is the foundation of “a national policy of protecting and promoting
environmental quality.” Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443
(4th Cir. 1996). NEPA is intended to be “action-forcing,” and it should provide the public and
decision-makers with the data they need to intelligently make a considered decision about the
best path forward for their communities. N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d
596, 601 (4th Cir. 2012) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350 (1989)). Accordingly, an Environmental Impact Statement (“EIS”) must “serve as the
means of assessing the environmental impact of proposed agency actions, rather than justifying
decisions already made.” 40 C.F.R. § 1502.2(g).

An EIS must detail the environmental impact of the proposed action, any adverse
environmental effects that cannot be avoided if the proposal is implemented, alternatives to the
May 17, 2019
Page 3
proposed action, and any irreversible and irretrievable commitments of resources that would be
involved in the proposed action. Id. § 1508.11; 42 U.S.C. § 4332(C). These effects 1 include
“ecological . . . , aesthetic, historic, cultural, economic, social, [and] health [effects], whether
direct, indirect, or cumulative.” 40 C.F.R. §§ 1508.8; 1508.25(c). Direct effects are those effects
that are “caused by the action and occur at the same time and place.” Id. § 1508.8(a). Indirect
effects are those effects “caused by the [agency] action and . . . later in time or farther removed
in distance, but . . . still reasonably foreseeable” and “may include growth inducing effects and
other effects related to induced changes in the pattern of land use, population density or growth
rate.” Id. § 1508.8(b). Cumulative effects are environmental impacts which “result[] from the
incremental impact of the action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non-Federal) or person undertakes such
other actions.” Id. § 1508.7. Additionally, “[c]umulative impacts can result from individually
minor but collectively significant actions taking place over a period of time.” Id.

The Cape Fear Crossing DEIS fails to fulfill the purposes of NEPA and fails to fairly
assess a reasonable range of alternatives in violation of NEPA requirements. In turn, these
failures have led to only new location highway alternatives progressing to the detailed study
stage, and each of these alternatives correspond to enormous environmental and human impacts
at an impracticable project cost. The many shortcomings of the DEIS are discussed in turn
below.

II. POOR PROJECT PROCESSES

Public participation and transparency are crucial aspects of the NEPA process. See 40
C.F.R. § 1500.2(d) (requiring agencies to “[e]ncourage and facilitate public involvement in
decisions which affect the quality of the human environment”); Id. § 1506.6(a) (requiring
agencies to “[m]ake diligent efforts to involve the public in preparing and implementing their
NEPA procedures”); Id. § 1506.6(d) (requiring agencies to “[s]olicit information from the
public”). By requiring agencies to make public the environmental impact of its actions, NEPA
“ensures that the public and government agencies will be able to analyze and comment on the
action’s environmental implications.” Nat’l Audubon Soc. v. Dep’t of the Navy, 422 F.3d 174,
184 (4th Cir. 2005).

Here, NCDOT failed to properly disclose information to the public during the public
comment period, has not been consistent or forthright about project costs or financing, and has
employed an improper time horizon for its analyses for the Project.

1
“Effects and impacts as used in [the NEPA] regulations are synonymous.” 40 C.F.R. § 1508.8.
May 17, 2019
Page 4
A. Mishandling of Public Comment Period

As an initial matter, the entire DEIS process is tainted by NCDOT’s poor approach to
disclosure and transparency. NCDOT has failed to provide details to the public that informed its
decisionmaking process, and at times, has even misinformed the public.

For example, during the public hearing held on Monday, April 29, 2019 at John T.
Hoggard High School, the PowerPoint presented by NCDOT contained a substantial error in its
presentation of the project costs. The PowerPoint correctly stated that NCDOT’s current cost
estimates show the lowest-cost alternative to be Alternative V-AW, at $619 million. The
PowerPoint incorrectly stated, however, that the highest cost alternative was route M-A, at $995
million. As indicated in the DEIS, this $995 million figure in fact corresponds to Alternative B.
Alternative MA is the third-cheapest option, behind Alternatives V-AW and Q. NCDOT’s
representative at the meeting was unaware of this glaring error as he read through the
PowerPoint, and only acknowledged the error after a member of the audience later called the
inconsistency between the PowerPoint and the Public Hearing Handout to his attention.

Similarly, at the Tuesday, April 30, 2019 public meeting held at North Brunswick High
School, NCDOT staff and consultants were unable to answer questions about the sea level rise
analysis in the DEIS. When asked questions about the methodology used in the Sea Level Rise
Assessment, NCDOT staff referred an SELC attorney to an AECOM consultant who explained
that the Sea Level Rise Assessment was based on 2006 sea level rise rates from the U.S. Army
Corps of Engineers. The consultant was unaware of more recent, 2017 data from the National
Oceanic and Atmospheric Association. When the SELC attorney attempted to follow-up with
NCDOT project manager John Conforti about whether the consultant’s information was correct,
she never received a response. 2

NCDOT also failed to disclose the project’s Screening Indirect and Cumulative Effect
(ICE) Study until after repeated requests from an SELC attorney. On April 29, 2019, the SELC
attorney wrote Mr. Conforti explaining that the DEIS referenced the ICE Study on page 4-63, but
that the study was nowhere listed in the DEIS’s references and was not available on the NCDOT
DEIS website. 3 The attorney specifically requested that NCDOT send her a copy of the study.
After receiving no response, the attorney followed-up on May 3, but again did not receive a
response. 4 Instead, when the attorney visited the NCDOT project website on May 8, she
discovered that as many as 10 previously-undisclosed technical reports had been made available
online, including the requested ICE Study. In light of the volume of newly-disclosed

2
E-mail from Maia Hutt, SELC to John G. Conforti, NCDOT, May 8, 2019 1:51 PM, Attachment 1.
3
Email from Ramona McGee, SELC to John G. Conforti, NCDOT, April 29, 2019 3:19 PM, Attachment 2.
4
Email from Ramona McGee, SELC to John G. Conforti, NCDOT, May 3, 2019 3:40 PM, Attachment 2.
May 17, 2019
Page 5
information, the SELC attorney requested that NCDOT extend the public comment deadline by
30 days. 5

On May 10, the SELC attorney again e-mailed Mr. Conforti about a document missing
from the NCDOT website. The attorney requested a copy of any alternatives analysis report
completed in relation to the Cape Fear Crossing, specifically noting that agency meeting minutes
referred to a draft alternatives analysis report that was exchanged between agencies involved in
the project. 6 The e-mail also noted that NCDOT had not responded to the request for a public
comment period extension.

Mr. Conforti finally responded that day regarding both missing documents. 7 He
explained that the ICE Study was not originally on the website “because the Land Use Scenario
Assessment, which is a more comprehensive analysis, was on the webpage.” 8 As for the
alternatives analysis, Mr. Conforti disclaimed any need to disclose it: “The draft Alternatives
Analysis Report is not on the webpage because it was only a draft and was superseded by the
final alternatives analysis which is in the DEIS itself.” 9 Mr. Conforti then explained that the
newly-added reports were “inadvertently” added to the website, and that NCDOT was “working
on removing these.” Instead, he said that “[a]ny reports mentioned in the DEIS and not on the
webpage can be provided upon request” failing to acknowledge that attempts to request such
documents had been unsuccessful. He then denied the request for an extension to the public
comment period. Ultimately, after further conversation with NCDOT’s general counsel, the
Department agreed to extend the public comment period by a day and a half for SELC and its
clients.

This admission of affirmatively withholding reports related to the DEIS, and confusingly
adding then removing reports to the project website, does not instill confidence in NCDOT’s
transparency and forthrightness with regards to other aspects of this project.

B. Unfunded and Unclear Project Costs and Funding Sources

In the DEIS, NCDOT acknowledges that the project is currently unfunded, but focuses on
how “once a preferred alternative is identified, the project will be reevaluated for its ability to be
funded in the next STIP [State Transportation Improvement Program].” 10 This project has long

5
Email from Ramona McGee, SELC to John G. Conforti, NCDOT, May 8, 2019 3:32 PM, Attachment 2.
6
Email from Ramona McGee, SELC to John G. Conforti, NCDOT, May 10, 2019 9:41 AM, Attachment 3.
7
Email from John G. Conforti, NCDOT to Ramona McGee, SELC, May 10, 2019 2:35 PM, Attachment 3.
8
Id.
9
Id. Despite his earlier explanation about not needing to disclose the Draft Alternatives Analysis Report, Mr.
Conforti sent the SELC attorney the report on May 16—the day the public comment period closed, and not even a
full two business days before the slight deadline extension given by NCDOT general counsel. Email form John G.
Conforti, NCDOT, to Ramona McGee, SELC, May 16, 2019 11:28 AM, Attachment 4.
10
DEIS at xvi.
May 17, 2019
Page 6
languished for lack of funding, as evidenced by the nearly 15-year lag from the start of project
scoping to the recent publication of the DEIS. Toll financing has been considered on and off to
attempt to bolster the project’s chances of actually getting funded, but even those efforts have
largely been unsuccessful. In 2010, Mike Kozlosky of WMPO was planning on meeting with
the state legislature to ask for gap funds in 2013 11—a request necessary only because the project
was not sufficiently meritorious to qualify for full funding without toll revenue. Instead,
however, North Carolina passed the Strategic Transportation Investments law (“STI”) in 2013
which instituted a data-driven process for scoring transportation projects and allocating funds
based on those scores. See N.C. Gen. Stat. § 136-189.11.

When the Cape Fear Skyway project was first scored under the STI in 2014, it scored
poorly, managing scores of only 38.38 at the statewide mobility tier, 25.95 in the regional impact
tier, and 29.51 in the division needs tier. 12 The project was scored as a toll facility, with a total
cost of $901.5 million, assuming that more than a quarter of the project cost, $259.5 million,
would be covered by tolls. WMPO acknowledged that the “high cost of the project was likely
an important factor in its relatively low score.” 13 Apparently in order to circumvent this result, a
WMPO workgroup member, Mike Kozlosky, noted that “there may be potential to split the
project into phases to lower construction costs and raise scores.” 14 In 2016, The project fared
better in the scoring process—60.08 at the statewide mobility tier, 37.98 at the regional impact
tier, and 26.96 at the division needs tier—with a total cost of $921 million, but a smaller share of
funds coming from tolls. 15 The project still did not score well enough to gain funding.

In the latest round of prioritization in 2018, four separate projects identified as the Cape
Fear Crossing were scored. 16 Three of these were considered “carryover” submissions from the
last round of prioritization—even though only a single Cape Fear Crossing project had
previously been submitted and scored in 2014 and again in 2016—and one project was a new
submittal from WMPO. The new submittal was identified as Alternative V, scored with a cost to

11
Memorandum to Attendees from Joanna Harington, Minutes of Meeting held March 29, 2010 at 10:00AM, Apr.
1, 2010 at DEIS App. E.
12
NCDOT, Prioritization 3.0 Workbook, last updated Sept. 24, 2014, available at
https://connect.ncdot.gov/projects/planning/Pages/PrioritizationResources.aspx, Attachment 5 (see data for SPOT ID
H129646).
13
Memorandum to Meeting Attendees from Joanna Rocco, re: Minutes of Meeting held May 29, 2014 at 1:30 PM,
June 19, 2014, at DEIS App. E.
14
Id.
15
NCDOT, Prioritization 4.0 STI Workbook, last updated July 28, 2017, available at
https://connect.ncdot.gov/projects/planning/Pages/PrioritizationResources.aspx, Attachment 6 (see data for SPOT ID
H129646)
16
NCDOT, Prioritization 5.0 STI Workbook, last updated Jan. 8, 2019, available at
https://connect.ncdot.gov/projects/planning/Pages/PrioritizationResources.aspx, Attachment 7. The four Cape Fear
Crossing Projects are identified by SPOT IDs H171924, H129646, H129646-A, and H129646-B.
May 17, 2019
Page 7
NCDOT of $1.152 billion. 17 It scored 63.82 at the statewide tier, 40.18 at the regional tier, and
30.84 at the division needs tier—not well enough to gain funding at any of the three levels. 18

Then, separately, Alternative M was scored as a toll facility, at a total cost to NCDOT of
$838.2 million, or a total project cost of $926.7 million, once toll funding was taken into
account. It scored higher than the V Alternative, with 68.77 at the statewide level, 44.03 at the
regional impact level, and 34.08 at the division needs level—still not well enough to qualify for
funding. 19 Harkening back to Mr. Kozlosky’s suggestion, Alternative M was also submitted
segmented into two separate projects with scores identical to the combined Alternative M
project. The longer, more expensive of these two segments failed to gain funding, but the shorter
segment, which would stretch from US 17 in Brunswick County to NC 133, had an independent
cost of “only” $226,311,400 and scored well enough to receive funding at the Division Needs
level. 20 This segment has not been studied in the current DEIS as an isolated project, which
would have traffic and land use forecasts, as well as environmental impacts, that would differ
and be specific to this isolated section of the overall Cape Fear Crossing.

The project costs used in the STI process do not match the project costs listed in the
DEIS. Alternative V-AW is listed at a total cost of $619.18 million, 21 which is a far cry from the
$1.152 billion project scored in the STI. The cost of Alternative M Avoidance in the DEIS is
“only” $26 million off, with a DEIS cost of $906.64 million.22

Additionally, the DEIS does not evaluate impacts of any of the DSAs as a toll facility, yet
in the financing section, the DEIS is equivocal about whether the project is envisioned as a toll
facility: “In discussions with FHWA and the WMPO tolling will not be precluded from
consideration as a financing tool.” 23 The DEIS explicitly disavows factoring tolls into the
analysis of impacts and selection of a preferred alternative. When questions were raised in 2018
about how to present toll financing in the DEIS, FHWA stated that tolling could be evaluated as
a financing tool in the DEIS, and that the FEIS would simply discuss “any changes made by
tolling the preferred alternative . . . including changes in impacts to jurisdictional resources and
potential impacts on Environmental Justice populations.” 24

17
Id. (see data for SPOT Id H171924).
18
Id.
19
Id. (see data for SPOT ID H129646).
20
The final funding decisions will be memorialized in the 2020-2029 STIP, which is not set to be finalized until
summer 2019.
21
DEIS at 2-29 Tbl. 2-8.
22
Id.
23
Id. at 2-29.
24
Memorandum to Project File from Celia Miars, Stip U-4738, Cape Fear Crossing Tolling Discussion, Aug. 7,
2018, at DEIS App. E.
May 17, 2019
Page 8
Evaluating toll impacts only once an alternative is selected contravenes the purposes of
NEPA to evaluate a full range of alternatives and disclose the impacts of those alternatives.
Whether a project is tolled or not can have significant implications for traffic forecasts, land use
projections, and equity considerations. By impacting the likely volume of users on a roadway,
tolls can also influence the level of air pollution, stormwater runoff, and other environmental
impacts.

NCDOT needs to clarify what the actual project costs are between those displayed in the
DEIS and those used in the STI scoring process. Moreover, NCDOT must be forthright about its
tolling plans for this project at a stage in the planning process that allows for thorough review
and meaningful public participation regarding such a decision.

C. Insufficient Time Horizon

When a transportation agency initiates the planning stages for a project, it establishes the
project’s “design year.” The design year is “the future year used to estimate the probable traffic
volume for which a highway is designed.” 25 Setting an appropriate design year is critical, since
it factors heavily into the scoping process required by NEPA. See 40 C.F.R. § 1501.7. More
general CEQ guidance directs the agency, “[i]n determining how far into the future to analyze
cumulative effects, [to] consider the time frame of the project-specific analysis. If the effects of
the proposed action are projected to last five years, this time frame may be the most appropriate
for the cumulative effects analysis.” 26

NCDOT also offers guidance intended to provide agency planners “with a tool to help in
the identification, analysis and assessment of indirect and cumulative effects of transportation
projects” in the preparation of NEPA documents, including environmental assessments. 27
Preparers of environmental documents are instructed to establish a time frame “short enough in
duration to anticipate reasonably foreseeable events, but . . . long enough in duration to capture
the development and relocation effects that may only transpire over the course of several
business cycles.” Id. at Vol. II, p. III-7. 28 Thus, “[m]ost indirect/cumulative effects studies set a

25
Interim Guidance on the Application of Travel and Land Use Forecasting in NEPA, FHWA, 33, 61 (March 2010),
available at https://www.environment.fhwa.dot.gov/nepa/Travel_LandUse/travel_landUse_rpt.pdf [hereinafter
FHWA Guidance], Attachment 8.
26
Considering Cumulative Effects Under the National Environmental Policy Act, Council on Envtl. Quality, Ch. 2,
p. 16 (Jan. 1997), [hereinafter CEQ Guidance]. https://ceq.doe.gov/publications/cumulative_effects.html,
Attachment 9_.
27
Guidance for Assessing Indirect and Cumulative Impacts of Transportation Projects in North Carolina, Volume
II: Practitioner’s Handbook, NCDOT, Vol. II, p. ES-1 (Nov. 2001),
https://ceq.doe.gov/publications/cumulative_effects.html [hereinafter NCDOT Guidance], Attachment 10 .
28
See also Report 466: Desk Reference for Estimating the Indirect Effects of Proposed Transportation Projects,
Nat’l Highway Cooperative Research Program 34 (2002),
http://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_466.pdf.
May 17, 2019
Page 9
time horizon equal to the design life of a project, usually twenty to twenty-five years.” NCDOT
Guidance at Vol. II, p. III-7.

Federal courts have been clear that agencies must analyze the impacts and alternatives of
a specified project over a sufficient period of time in order to satisfy the requirements of NEPA.
E.g. N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) (Board
violated NEPA by using 5-year period to analyze cumulative impacts when aware of cumulative
impacts over 20-year period); Potomac Alliance v. U.S. Nuclear Regulatory Comm’n, 682 F.2d
1030 (D.C. Cir. 1982) (complete environmental assessment must extend through the period in
which “under reasonably foreseeable circumstances” impacts would occur); Concerned About
Trident v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1976) (7-year timeframe is insufficient, as facility
would generate impacts after initial operation date). After all, “the basic thrust of an agency’s
responsibilities under NEPA is to predict the environmental effects of proposed action before the
action is taken and those effects fully known.” Scientists’ Inst. for Pub. Info., Inc. v. Atomic
Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir. 1973).

Here, NCDOT’s planning horizon for the project extends only to the year 2040, a bare 20
years for a nearly $1 billion bridge project that would typically be expected to have a 75-year
design life. 29 At the same time, the project is currently unfunded, and NCDOT anticipates that
“[o]nce funding for construction is secured, it will take an estimated five years to complete the
project.” 30 Thus, the absolute earliest the project could open to traffic would be sometime in
2025, a mere 15 years off from NCDOT’s 2040 design year. 31 This planning horizon is
inconsistent with standard practice and insufficient to satisfy the purposes of NEPA. Without
analyzing the impact and efficacy of the project in the years after it opens, NCDOT has no
reasonable measure to select the best alternative, or to analyze the impacts of the project.
NEPA’s purpose is thus frustrated and its requirements rendered irrelevant.

III. UNSUPPORTED STATEMENT OF PURPOSE AND NEED

The Statement of Purpose and Need is essential to the NEPA process, as it guides the
agencies’ scope of review. 40 C.F.R. § 1502.13. As noted 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
29
The American Association of State Highway and Transportation Officials (AASHTO) recommends a 75-year
design life for bridges. American Association of State Highway and Transportation Officials, AASHTO LRFD
Bridge Design Specifications 8th Ed., 1-4 (Sept. 2017) available at
https://store.transportation.org/Common/DownloadContentFiles?id=1648, Attachment 11.
30
DEIS at xv.
31
NCDOT states that the “design year” for the Bridge is 2040. DEIS at 4-30. This seems unlikely, generally major
bridges such as this one have a design life of at least 50 years. See, for example, the Mid-Currituck Bridge and the
Marc Basnight Bridge.
May 17, 2019
Page 10
available alternatives.” Webster v. U.S. Dep’t of Agric., 685 F.3d 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).

The Statement of Purpose and Need for the Cape Fear Crossing appears to be nothing
more than a post-hoc justification for an already-conceived project, rather than a prompt for
alternative solutions to meet an established need. Worse, the future impacts of sea level rise call
into question the alleged need for the project—and may prevent the project from being able to
meet its stated purposes and needs.

A. Biased Purpose and Lack of Demonstrated Need

The stated primary purposes of the Cape Fear Skyway are to “improve traffic flow and
enhance freight movements beginning in the vicinity of US 17 and I-140 in Brunswick County,
across the Cape Fear River to US 421 near the Port of Wilmington in southern New Hanover
County.” 32 The DEIS identifies the primary needs for the project as “[t]raffic capacity
deficiencies” and “North Carolina port access.” 33 As to the traffic capacity deficiencies, early
planning documents point to US-17 and the Cape Fear Memorial Bridge as the primary areas of
concern. 34 In the summary section, the DEIS also includes hurricane evacuation as a need
justifying the project. 35

The needs for this project, however, have been under question for more than a decade.
Much of the alleged need for the project seems to be based on a feasibility study prepared by
NCDOT more than 15 years ago. 36 Much has changed in the intervening years including a major
economic recession, ditched plans for an international port at Southport, N.C., and changes in
transportation patterns and technology, all of which call into question whether the project is still
necessary.

Indeed, it appears that the Purpose and Need Statement was crafted to fit the project,
rather than the other way around. As of 2009, the agency representatives were still deliberating
as to why this project was needed and what its purpose would be. At an agency meeting that
year “Rob [Ayers, FHWA] said that, ideally, we want to show the need to construct a new

32
DEIS at 1-3.
33
Id.
34
NCTA, PowerPoint, Cape Fear Skyway Citizens Informational Workshop at slide 10 (2011) (found in DEIS App.
D).
35
DEIS at v.
36
Draft Interagency Merger Process Team Meeting, Concurrence Point 2, July XX, 2013 at DEIS App. E.
May 17, 2019
Page 11
facility that performs the way we define it.” 37 Discussion centered on the importance of
improving traffic flow on US 17, yet agency representatives were concerned about specifying US
17 in the project purpose and need. 38

Around this same time, the “port access” component of the purpose and need statement
was repeatedly questioned as a valid project need. In an August 2009 e-mail, Rob Ayers with
FHWA stated “I’m not convinced at this point that the P&N should mention anything related to
national defense or the ports.” 39 Again in 2009, FHWA expressed doubts about improved port
access as being “used to justify the project need.” 40 At an October 2009 meeting, NCDOT
Consultant Tracy Roberts “noted that access to the Port will be difficult to substantiate as a
project need since there is little existing data demonstrating such a need.” 41 Similarly, with
regards to the alleged need to improve freight movements, representatives at the August 2009
North Carolina Turnpike Authority meeting noted how limited trucking data was and that the
origin-destination study model being used at that time did not separate out truck traffic for
review. 42

Meanwhile, even as the agencies were still deciding on the purpose and need statement
for the project, NCDOT consultants were working on developing possible alternatives. In other
words, the project was treated as a foregone conclusion even before there was an established
purpose and need. The agencies did not settle on a Purpose and Need Statement for the project
until September 2010, when screening of project alternatives was already well under way. 43

The DEIS also lists “[c]onsistency with state and local visions,” improved hurricane
evacuation times, and general improved safety as “secondary benefits.” 44 While cast as
“secondary benefits” in the DEIS, these factors provided early impetus for the project and appear
to have been given improper weight in pushing the project forward. The minutes for the August
2009 NCTA meeting on purpose and need claim “[t]he project still needs to be consistent with
the Strategic Highway Corridor Initiative (SHC) and the North Carolina Intrastate System.” 45
But there is no justification for why this is the case. 46 Consistency with local transportation

37
Memorandum to Attendees from David Griffin, Re: Minutes of Meeting held August 19, 2009 at 1:00 PM, at
DEIS App. E.
38
Id.
39
E-mail to Mike Kozlosky, WMPO, from Rob Ayers, FHWA, Aug. 12, 2009 8:59 AM, at DEIS App. E.
40
Memorandum to Attendees from David Griffin, Re: Minutes of Meeting held August 19, 2009 at 1:00 PM, at
DEIS App. E.
41
Id.
42
Id.
43
Meeting Minutes, Turnpike Environmental Agency Coordination Meeting, Sept. 8, 2010, at DEIS App. E.
44
DEIS at 1-7.
45
Memorandum to Attendees from David Griffin, Re: Minutes of Meeting held August 19, 2009 at 1:00 PM, at
DEIS App. E.
46
Indeed, the Strategic Highway Corridor (SHC) Initiative would not meet applicable federal standards for it to be
adopted into the Cape Fear Crossing planning process. See 23 U.S.C. § 168(d) (a state or local plan can only be
May 17, 2019
Page 12
plans is an improper, circular and self-serving “need” that would allow a line drawn on a map
decades ago to dictate a project, rather than data demonstrating an actual need. As noted later on
in these comments, concern for consistency with local bicycle and pedestrian transportation
plans has not been given the same level of importance.

As to the hurricane clearance times, an NCDOT consultant noted in 2009 that the
projected 19-hour clearance time in 2035 was only one hour over the statewide goal of 18
hours—“so there would only be a very slight need in this regard.” 47 As discussed in greater
detail in the next section, none of the DSAs would substantially alleviate congestion during
evacuations relative to the No Build alternative.

B. Hurricane Evacuation Secondary “Benefits” Cannot Justify the Project

NCDOT claims that the Cape Fear Crossing project is needed in order to improve
hurricane evacuation clearance times in Brunswick and New Hanover Counties, but its own
analysis indicates that none of the proposed alternatives would alleviate congestion at the most
significant bottlenecks during hurricane evacuations. Indeed, when the project was scored in
2016 under the STI, the project was not labeled as a hurricane evacuation route.

NCDOT includes “improved hurricane evacuation clearance time and emergency


evacuation” as a secondary benefit of the project. 48 The DEIS states that a secondary benefit of
the project would be “to reduce hurricane evacuation clearance times for residents and visitors”
to ensure compliance with the State of North Carolina’s statewide hurricane evacuation clearance
time goal of 18 hours. 49 As noted previously, the DEIS also misleadingly mentions hurricane
evacuation times in its summary section regarding needs for the project. 50

NCDOT hired Atkins North America (formerly PBS&J), the same firm that provided the
technical assistance necessary to establish the standard evacuation clearance goal used by the
state of North Carolina, to prepare a Hurricane Evacuation Analysis for the proposed Cape Fear

incorporated into a NEPA process if the plan was developed through a process conducted pursuant to applicable
Federal law and if the plan meets certain other requirements, including consideration of the effects on the human and
natural environment). In this case, the SHC prioritized system connectivity, mobility, and economic prosperity, and
did not consider the effects on the natural environment. In addition, the SHC was developed by state agencies
without meaningful public input, and was not developed as part of the statewide transportation planning or statewide
transportation improvement planning process.
47
Id.
48
DEIS at 1-7.
49
Id. At 1-8. It is worth noting that the state’s 18 hour evacuation time is well below the National Hurricane
Center’s warning and watch timeframes for tropical systems, which are 24 and 36 hours respectively. National
Weather Service, Hurricane and Tropical Storm Watches, Warnings, Advisories and Outlooks,
https://www.weather.gov/safety/hurricane-ww (last visited May 11, 2019).
50
DEIS at v.
May 17, 2019
Page 13
Crossing. 51 The Analysis concludes that for the New Hanover, Brunswick, and Pender County
region of the state, existing clearance times range from 10 to 40 hours, and that for a Category 3
hurricane at 75% tourist occupancy times are approximately 29 hours. 52 The Analysis reports
that due to “the expected large regional population growth over the next 25 years clearance times
escalate by some 11 hours depending on the category of hurricane and tourist occupancy.” 53 The
Analysis concludes that for a Category 3 hurricane, 75% tourist occupancy scenario in the year
2040, clearance times will be 40 hours. 54

The Analysis identifies several “critical roadway segments”, and assigns a “2040
No Build Clearance Time” to each of these segments:

Critical Roadway Segments 2040 Build Clearance


Times (hours)
College Road northbound south of I-40 40.6
Cape Fear Memorial Bridge westbound 21.2
US 74/76 causeway westbound from Cape 13.6
Fear Memorial Bridge to US 17 split
US 74/76 from US 17 split to I-140 20.0
US 74/76 westbound out of Brunswick 34.1
County
US 421 between Shipyard Boulevard and 8.2
Wilmington Central Business District
US 17 in Brunswick between 1-140 and CFX 1.8
Improvement Alternatives

As the table illustrates, only two segments are expected to substantially exceed the state’s 18
hour hurricane evacuation clearance goal: College Road northbound south of 1-40, and US 74/76
westbound out of Brunswick County. 55

The Analysis goes on to identify the clearance time impacts each proposed alternative
would have on these “critical roadway segments.” Instead of presenting this information in
terms of clearance hours, the Analysis designates impacts as: “major positive,” a greater than

51
Hurricane Evacuation Analysis at 2.
52
Id. at 7.
53
Id. at 8.
54
Id.
55
Id. at 10-12.
May 17, 2019
Page 14
25% reduction in segment clearance times; “positive,” 5-25% reduction in segment clearance
time; “neutral,” no substantial reduction or increase in segment clearance time; “negative,” 5-
25% increase in segment clearance time; and “major negative,” greater than 25% increase in
segment clearance time. 56

The Analysis concludes that for the two segments with the highest clearance times—
College Road northbound south of I-40 (40.6 hours), and US 74/76 westbound out of Brunswick
County (34.1 hours)—none of the twelve studied alternatives would have positive impact on
clearance times. 57 Every one of the twelve alternatives studies would have a “neutral” impact
on these segments’ clearance time. 58 The Analysis concludes that:

[w]hile the Cape Fear Crossing improvement alternatives help evacuation


congestion levels on local bottlenecks, they do not solve the area’s worst regional
bottleneck evacuation congestion locations associated with US 74/76 westbound
out of Brunswick County or I-40 northbound out of New Hanover and Pender
Counties. The table reflects this neutral impact for all improvement alternatives”

59
(emphasis in original).

The DEIS misrepresents this noteworthy conclusion, stating that “without the Cape Fear
Crossing project . . . evacuation time is expected to reach 40 hours by 2040.” 60 But the
Hurricane Evacuation Analysis indicates that with or without the Cape Fear Crossing project,
evacuation times would reach 40 hours by 2040. 61 The DEIS continues to obscure the findings
in the Hurricane Evacuation Analysis, focusing exclusively on the positive evacuation impacts
various alternatives would have upon roadway segments that the Analysis found were not
actually that congested. 62 For example, the DEIS dedicates a paragraph to discussing the “major
positive evacuation impacts” Alternatives B, M Avoidance, N Avoidance, Q, and T would have
on US 421 between Shipyard Boulevard and downtown Wilmington. 63 But this segment only
has an 8.2 hour No Build 2040 Clearance time—nowhere near the state’s 18-hour goal. 64 The
DEIS omits any discussion of the College Road northbound south of I-40 and US/76 westbound
out of Brunswick County segments, which have 40.6 and 34.1 hour clearance times respectively
under both the Build and No-Build scenarios. 65 The DEIS also omits the primary conclusion of

56
Id. at 9.
57
Id. at 11-12
58
Id..
59
Id. at 13.
60
DEIS at v.
61
Hurricane Evacuation Analysis at 10-12.
62
See DEIS at 2-21.
63
Id.
64
Hurricane Evacuation Analysis at 10-12.
65
Id.
May 17, 2019
Page 15
the Hurricane Evacuation Analysis: the alternatives “do not solve the area’s worst regional
bottleneck evacuation congestion.” 66

Furthermore, the Hurricane Evacuation Analysis is opaque and does not disclose several
critical assumptions. For example, it is unclear whether Atkins North America assumed that the
same level of development would occur in the region regardless of whether or not the Cape Fear
Crossing project is completed or whether the effects of induced growth and development caused
by the project were accounted for in the Analysis. 67 If the Analysis did not account for induced
growth, and assumed the same level of development for both the 2040 No Build and 2040 Build
Alternatives, then the evacuation benefits, minimal as they are, may have been overstated.

The Hurricane Evacuation Analysis concludes that the Alternatives proposed by NCDOT
do not address the area’s worst regional evacuation congestion. Instead of disclosing this finding
and evaluating the potential evacuation benefits associated with other alternatives—such as the
multi-modal alternative rejected early in the alternatives analysis process—NCDOT instead
published a misleading DEIS that obscures the fact that the proposed nearly billion dollar bridge
will do little to relieve regional congestion during hurricane evacuations.

C. Sea Level Rise Projections Undermine Ability to Meet Purpose & Need

Even if the project’s purpose and need were proper, future impacts from sea level rise call
into question whether the project will actually be needed and useful within the project’s planning
horizon—and whether the project as designed will even be able to meet the stated needs.
NCDOT’s sea level rise analysis for the project relied on outdated data from 2013 instead of the
best available, most recent data from 2017. The DEIS misleadingly references the more recent
data—indicating NCDOT knew of its existence—but the analysis itself only used the outdated
data. The more recent data indicate that sea level rise is happening much faster than was thought
back in 2013.

1. NOAA’s Sea Level Rise Projections

The best-informed, most up-to-date sea level rise projections were published by the
National Oceanic and Atmospheric Association (“NOAA”) in January 2017 to inform the 4th
National Climate Assessment. 68 NOAA’s projections include six different sea level rise
scenarios. The NOAA 2017 Low scenario represents the current rate of sea level rise as well as

66
Id. at 13.
67
See id. at 8 (“with the expected large regional population growth over the next 25 years…”).
68
National Oceanic and Atmospheric Administration. 2017. Global and Regional Sea Level Rise Scenarios for the
United States. US.. Department of Commerce.
https://tidesandcurrents.noaa.gov/publications/techrpt83_Global_and_Regional_SLR_Scenarios_for_the_US_final.p
df, Attachment 12.
May 17, 2019
Page 16
subsidence and other local factors, and is possible only if emissions are drastically reduced in the
next decade or so. The Intermediate-Low scenario represents a slight increase in the current rate
and also depends upon emission reductions. The Intermediate scenario includes acceleration
caused by ice sheet melt and is possible in a future with continued high emissions or moderately
reduced emissions. The Intermediate-High scenario is likely under continued high emissions,
and accounts for an increase in ice melt caused by crossing certain ice sheet tipping points. The
High scenario is the most amount of sea level rise likely to happen if these ice sheet tipping
points are crossed. And finally, the Extreme scenario is consistent with current estimates of the
physically possible worst case scenario.

Based on probabilities produced by NOAA and in the 4th National Climate Assessment,
the low scenario’s projections of sea level rise are no longer plausible, as there is over a 94%
chance that reality will exceed the lowest projection of sea level rise. There is also a substantial
chance (17%) that the Intermediate scenario underestimates future sea level rise, as the emissions
reductions necessary for this scenario to occur have not materialized. 69The latest findings on ice
sheet instability and glacial melt make NOAA’s Intermediate-High and other similar scenarios
even more realistic. Once ice sheet instability tipping points are crossed, rapid ice melt will
significantly contribute to and accelerate sea level. In late 2018, reports from a NASA and
European Space Agency collaboration revealed that Antarctic ice melt is tracking close to the
IPCC’s worst case scenario. 70 New research in early 2019 shows that both the Greenland 71 and
Antarctic 72 ice sheets are melting faster and in greater volume than expected and that the ocean is
also warming more rapidly than predicted. 73 In fact, NASA scientists recently discovered that
the Thwaites glacier in Antarctica is more unstable than previously thought, and the collapse of
this ice mass alone could increase global sea levels by 2 feet. 74 Another international study

69
See United Nations Environment Programme, Emissions Gap Report 2018, at xiv, Attachment 13_. Meilan Solly,
Carbon Dioxide Levels Reach Highest Point in Human History, Smithsonian (May 15, 2019),
https://www.smithsonianmag.com/smart-news/carbon-dioxide-levels-reach-highest-point-human-history-
180972181/. [hereinafter “UN Gap Report”].Attachment 14.
70
Ice Sheet Mass Balance Inter-Comparison Exercise (IMBIE) team. 2018. Mass balance of the Antarctic Ice Sheet
from 1992 to 2017. Nature 558, 219-22, https://www.nature.com/articles/s41586-018-0179-y Attachment 15
71
Box, J., Colgan, W., Wouters, B., Burgess, D., O’Neel, S., Thomson, L., Mernild, S. 2018. Global sea level
contribution from Arctic land ice: 1971-2017. Environmental Research Letters 13(12),
https://iopscience.iop.org/article/10.1088/1748-9326/aaf2ed, Attachment 16 See also
https://www.nytimes.com/2019/01/21/climate/greenland-
ice.html?action=click&module=Well&pgtype=Homepage&section=Climate%20and%20Environment, Attachment
17.
72
Rignot, E., Mouginot, J., Scheuchl, B., Broeke, M., Wessem, M., Morlighem, M. 2019. PNAS 116(4), 1095-1103,
https://www.pnas.org/content/116/4/1095 , Attachment 18.
73
Cheng, L., Abraham, J., Hausfather, Z., Trenberth, K.E. 2019. How fast are the oceans warming. Science
363(6423), 128-29, http://science.sciencemag.org/content/363/6423/128 , Attachment 19.
74
Milillo, P., Rignot, E., Rizzoli, P., Scheuchl, B., Mouginot, J., Bueso-Bello, J., Prats-Iraola, P. 2019.
Heterogeneous retreat and ice melt of Thwaites Glacier, West Antarctica. Science Advances 5(1),
http://advances.sciencemag.org/content/5/1/eaau3433/tab-pdf , Attachment 20. See also
https://www.nbcnews.com/mach/science/hole-opens-under-antarctic-glacier-big-enough-fit-two-thirds-ncna965696 ,
Attachment 21.
May 17, 2019
Page 17
recently concluded that a third of the Himalayan glaciers will melt by the end of the century,
even if ambitious climate change targets are met. 75 These recent studies and others demonstrate
that the more optimistic sea level rise scenarios are extremely unlikely to be realistic. Therefore,
it would be unreasonable to assume sea level rise projections less than the Intermediate High
Scenario.

With a long-term infrastructure project like the Cape Fear Crossing, it is unreasonable to
factor in a sea level rise less than the Intermediate High given the probabilities produced by
NOAA and recent research on observed climate change trends. And yet NCDOT has done
precisely that.

2. NCDOT’s Misleading and Inaccurate Sea Level Rise Assessment

The Cape Fear Crossing DEIS itself acknowledges that “many of the proposed
alternatives that bound the Cape Fear River, Brunswick River, Town Creek, and/or Alligator
Creek are vulnerable to inundation. All DSAs would likely experience inundation or be at-risk
for inundation.” 76 The main DEIS document provides no detail as to which road segments or
alternatives are vulnerable to sea level rise impacts. The accompanying Cape Fear Crossing Sea
Level Rise Technical Assessment, prepared for NCDOT by AECOM, provides some of those
details—and also reveals the shortcomings of NCDOT’s analysis and projections.

Although the Cape Fear Crossing Sea Level Rise Technical Assessment (the
“Assessment”) was completed in 2019, the sea level rise projections it relies on were published
in 2013 by the U.S. Army Corps of Engineers (“USACE”). 77 These scenarios were novel at the
time they were released because they were some of the first to assess relative, localized sea level
rise. However, since then two major federal reports have superseded and improved upon the
2013 work. One report was co-authored by USACE in 2016. 78 More recently in 2017 NOAA
released new scenarios of sea level rise to inform the 4th National Climate Assessment. 79 This

75
International Centre for Integrated Mountain Development (ICIMOD). 2019. The Hindu Kush Himalaya
Assessment. https://www.springer.com/la/book/9783319922874 ; See also https://www.reuters.com/article/us-
climatechange-himalayas/thaw-of-himalayas-set-to-disrupt-asias-rivers-crops-study-
idUSKCN1PT157?mc_cid=8bdbcc6db4&mc_eid=5f6f2ff30f , Attachment 22.
76
DEIS at 4-30.
77
US Army Corps of Engineers. 2013. Incorporating Sea Level Change in Civil Works Programs. Department of the
Army. Accessed at
https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1100-2-8162.pdf ,
Attachment 23.
78
Hall, J.A., S. Gill, J. Obeysekera, W. Sweet, K. Knuuti, and J. Marburger. 2016. Regional Sea Level Scenarios for
Coastal Risk Management: Managing the Uncertainty of Future Sea Level Change and Extreme Water Levels for
Department of Defense Coastal Sites Worldwide. U.S. Department of Defense, Strategic Environmental Research
and Development Program. Accessed at https://www.serdp-estcp.org/Program-Areas/Resource-Conservation-and-
Resiliency/Infrastructure-Resiliency/Regional-Sea-Level-Scenarios-for-Coastal-Risk-Management , Attachment 24.
79
National Oceanic and Atmospheric Administration. 2017. Global and Regional Sea Level Rise Scenarios for the
United States. U.S. Department of Commerce.
May 17, 2019
Page 18
effort incorporated and improved upon previous work from NOAA, USACE, EPA, USGS, and
academia. The USACE Sea Level Change Curve Calculator, cited in the Assessment as a
primary source for sea level rise data, allows the user to select a “Scenarios Source,” which
includes the most recent NOAA 2017 data. 80 The USACE Sea Level Change Curve Calculator
also allows the user to select older sources, including the USACE2013, which is apparently what
NCDOT did. The website interface makes it difficult for the user to overlook the option to use
the updated NOAA 2017 data. 81

NCDOT’s decision to use outdated data to generate the inundation rates and maps used in
the Assessment has significant repercussions for the Assessment’s reliability. As previously
noted, NOAA’s 2017 projections predict an acceleration in sea level rise. The difference
between the 2013 USACE projections and NOAA’s more recent 2017 projections is significant:

Figure 1. Relative sea level rise plot from the USACE Sea Level Change Curve Calculator. 82
The USACE 2013 scenarios considered in the Cape Fear Crossing Sea Level Rise Assessment
are shown as dotted lines, with the NOAA 2017 scenarios superimposed in solid lines.

https://tidesandcurrents.noaa.gov/publications/techrpt83_Global_and_Regional_SLR_Scenarios_for_the_US_final.p
df , Attachment 12.
80
US Army Corps of Engineers. Sea Level Change Curve Calculator. Version 2019.21. Accessed at
http://corpsmapu.usace.army.mil/rccinfo/slc/slcc_calc.html
81
See screenshot, Attachment 25.
82
Id.
May 17, 2019
Page 19

Table 1. Relative sea level rise table from the USACE Sea Level Change Curve Calculator. 83

As illustrated in Figure 1 and Table 1, which are outputs from the USACE Sea Level
Change Curve Calculator, the USACE 2013 Scenarios—USACE Low, USACE Int, and USACE
High—project substantially less sea level rise than the NOAA 2017 scenarios. By 2040, the
design year of the project, even NOAA’s Low scenario predicts over half a foot of sea level rise,
while the Intermediate and Intermediate-High scenarios predict estimate between 1 foot and 1.5
feet. These forecasts are all nearly double the amount of predicted sea level rise corresponding
to each scenario under the 2013 USACE data relied on by NCDOT, which show a Low scenario
of .27 feet, Intermediate scenario of .47 and High scenario of 1.10 respectively by 2040. Under
the USACE data, the Low scenario for 2100 predicted only .68 feet, while the updated NOAA
2017 Low scenario predicts projects 1.31 feet of sea level rise by 2100 relative to the year 2000.
The Intermediate-High scenario projects over 6 feet of sea level rise over the same time period.

As the world holds off on aggressive action to address climate change, the lower
scenarios of sea level rise are becoming less attainable, and the latest research and trends indicate
that we are on track with the Intermediate and Intermediate-High NOAA 2017 scenarios. 84 As
such, NCDOT should have based its analysis of sea level rise impacts on updated more likely
projections over the outdated scenarios it instead relied on.

Not only are the scenarios used by NCDOT outdated, but the way in which they were
used is incorrect and misleading. In the Assessment, the USACE 2013 curves for Low,
Intermediate, and High scenarios are presented in Figure 1. 85 In the analysis and mapping
throughout the Assessment, NCDOT refers to a Low, Intermediate, and High scenario, however,
the scenarios NCDOT refers to do not match the USACE 2013 scenarios. Rather, the Assessment
methodology explains that the authors made their own scenarios by choosing years—2019, 2040,

83
Id.
84
Supra notes 69-75.
85
Sea Level Rise Assessment at 1-3 Fig. 1.
May 17, 2019
Page 20
and 2100—along the USACE 2013 High curve. 86 Therefore these are not scenarios, but
snapshots in time of expected impacts based on a scenario curve—and an outdated one at that.
For example, the chosen “Low” scenario used in the Assessment is 0 feet of rise because it
represents sea level rise today. Throughout the report, it would have been more accurate to label
the chosen “Low, Intermediate, and High” comparisons as “2019, 2040, and 2100.”
Mischaracterizing these snapshots in time as scenarios in the context of the Assessment makes it
seem as if 0 feet of sea level rise is a feasible possibility within the life span of the bridge under
NCDOT’s so-called “low” scenario. As illustrated above, both the USACE 2013 and NOAA
2017 data make apparent that this is not the case. In fact, even just the current observed rate of
sea level rise in Wilmington extrapolated out to 2100 would give a minimum of 7.6 inches of sea
level rise without additional acceleration. 87

As illustrated by the photos used in the Assessment, the effects of sea level rise are
already visible along the Cape Fear River in the form of tidal marshes that have replaced stands
of trees. 88 This visual further demonstrates that 0 feet of sea level rise is not a viable scenario to
consider for this project as suggested by the Assessment.

Because of the Assessment’s misleading and erroneous use of the outdated scenarios, in
the mapping exercise used to compare the length of potential inundation for each alternative, the
“Existing Conditions” maps and the “Low” maps both show today’s conditions. The “Low’ data
shows 0 feet of sea level rise and therefore represents today’s mean higher high water
(“MHHW”), 89 while the “Existing Conditions” maps show the general banks of the river.
Notably, this means that today, under existing conditions, two of the proposed alternatives—MA
and NA—include stretches already at risk to inundation in existing MHHW conditions, without
even taking abnormally high tides, storm surge, or rainfall into account. 90 As such, this
Assessment is meant to address future risk from rising seas but does not even appropriately
address present day risk from high tides.

An appropriate use of scenarios would be choosing a year, or range of years, and


summarizing the federally-produced scenarios for that year or range. Considering each USACE
scenario in 2100, for example, would mean analyzing 0.6 feet, 1.7 feet, and 5 feet of sea level
rise. The design date for the project has already been set at 2040, therefore it would be prudent
to consider sea level rise projections starting at that date. Labeling the 2040 projection as
“Intermediate” masks the fact that the inundation figures presented in NCDOT’s “Intermediate”
86
Id. at 2-1.
87
NOAA. Sea Level Trends: Wilmington Gauge. Accessed at
https://tidesandcurrents.noaa.gov/sltrends/sltrends_station.shtml?id=8658120, Attachment 26.
88
Sea Level Rise Assessment at i & ES-2,
89
The MHHW is calculated as “the average height of each tidal day observed over the National Tidal Datum
Epoch.” Sea Level Rise Assessment at 2-1 to 2-2.
90
Alternatives MA and NA have 0.42 and 0.21 miles inundated under today’s high tide, respectively. Sea Level
Rise Assessment at 3-2.
May 17, 2019
Page 21
snapshot depicts the level of inundation the project begins with, rather than an Intermediate
possibility of rise along the project’s lifetime. Choosing a “Low” scenario based on today’s sea
level rise also does not accurately portray the full risk to the proposed alternatives. NCDOT’s
“High” snapshot, depicting the year 2100, is likewise erroneous. Since the proposed bridge
would be expected to operate, and likely generate toll revenue, far beyond the 2040 design date,
it is critical that the true impacts of accelerated sea level rise be considered even at this later date.
Instead of coming to terms with this reality, NCDOT obliquely acknowledges the “risks and
uncertainty in the future regarding sea level rise” 91 and pushes forth with a project that all
updated, accurate sea level rise projections indicate will experience significant and accelerating
risks of inundation upon completion.

An attorney for the Conservation Groups attended NCDOT’s public meeting for the Cape
Fear Crossing project in Leland on April 30th, 2019, and sought to clarify the methodology and
assumptions NCDOT made in the Assessment. The attorney spoke to several NCDOT
employees who were unable to discuss the details of the Assessment, and was directed to an
AECOM consultant who had worked on the Assessment. In response to questions about the
methodology underling the Assessment, consultant stated—incorrectly—that the sea level rise
projection used in the Assessment were based on 2006 sea level rise rates from USACE, and that
the data was “the same” as the data used to evaluate impacts of sea level rise on the proposed
Mid-Currituck Bridge. Notably, the FEIS for the Mid-Currituck Bridge was published in 2012,
while the Sea Level Rise Assessment for the Cape Fear Crossing project was published in 2019.
The consultant stated that they were unaware of the NOAA 2017 sea level rise data, and that this
data could be incorporated into the FEIS. The attorney emailed John Conforti, the project
manager for the Cape Fear Crossing project, asking that he clarify the AECOM consultant’s
statements. 92 The email also included a link to the NOAA 2017 data than the AECOM
consultant was unaware of. To date, Mr. Conforti has not responded to this email.

Tellingly, even with its flaws, the Assessment shows that the No Build Alternative is at
less risk to inundation than the proposed alternatives. 93 The main DEIS document fails to
mention this important fact, altogether failing to consider whether this project is an appropriate
endeavor under our current understandings of future sea level rise. Spending as much as a
billion dollars on a road project that will be covered by water in a few decades makes little
sense—and will certainly not meet the project’s purposes to improve traffic flow and enhance
freight movements.

3. Unstudied Impacts Related to Sea Level Rise

91
DEIS at 4-30.
92
E-mail from Maia Hutt, SELC, to John Conforti, NCDOT (May 8, 2019 1:51 PM). Attachment 1.
93
Sea Level Rise Assessment at 3-22.
May 17, 2019
Page 22
NCDOT’s inadequate Sea Level Rise Assessment and DEIS fail to consider a number of
impacts that sea level rise and climate change will have on the study area and alternative
concepts. NCDOT did not analyze the impacts of tidal flooding and increasingly severe storms
and hurricanes. Furthermore, NCDOT failed to consider the impacts each alternative would
have on the ability of marshes to adapt and migrate inland in response to rising sea levels.

Tidal Flooding

Tidal flooding, which was not specifically considered in the Assessment, blocks roads
and causes disruption for those living in and passing through low lying areas. This type of
flooding affects roadways adjacent to tidal coastal waters. The areas along the alternatives
marked as at risk for inundation would be subject to tidal flooding before they are inundated on a
more regular basis.

The Cape Fear Crossing Sea Level Rise Assessment merely mentions a “potential”
increase in flooding caused by sea level rise, yet an increase in flooding caused by tides alone is
already occurring. 94 In 2016, Wilmington experienced 8 days of moderate high tide flooding. 95
Before 1995, the city saw this type of flooding no more than one day each year. 96 Under the
NOAA’s 2017 Intermediate 97 sea level rise scenario, Wilmington would experience significant
tidal flooding on half the days of the year by 2060. By 2060, today’s abnormally high tide
becomes the average high tide. According to NOAA’s 2017 Intermediate scenario by the end of
the century, flooding in these areas would be guaranteed every day. 98

Intensifying Storms

The DEIS and Assessment also fail to consider the impacts of storm surge from
increasingly frequent and more severe storms. The impact of rising seas becomes even more
powerful when storm surge or rainfall is added on top of a higher tide, therefore it’s crucial to
consider storm surge and rainfall vulnerabilities in addition to sea level rise. Storms are already
becoming more intense as a result of changing climate, 99 and New Hanover and Brunswick
Counties have recently experienced the flooding associated with intensification.

94
Sea Level Rise Assessment at 4-1.
95
Refer to supporting data for Sweet, W.V., G. Dusek, J. Obeysekera, J. Marra (2018). Patterns and Projections of
High Tide Flooding Along the U.S. Coastline Using a Common Impact Threshold. NOAA Tech. Rep. NOS CO-
OPS 86, 44p, Attachment 27.
96
Id.
97
This is roughly equivalent to the USACE 2013 High used in the Assessment, but is actually lower by the end of
the century (see figure).
98
Id.
99
Easterling, D.R., K.E. Kunkel, J.R. Arnold, T. Knutson, A.N. LeGrande, L.R. Leung, R.S. Vose, D.E. Waliser,
and M.F. Wehner, 2017: Precipitation change in the United States. In: Climate Science Special Report: Fourth
National Climate Assessment, Volume I [Wuebbles, D.J., D.W. Fahey, K.A. Hibbard, D.J. Dokken, B.C. Stewart,
May 17, 2019
Page 23

Figure 3. Historical tide levels at the Wilmington, NC NOAA gauge. 100

During Hurricane Florence in September 2018, even as the storm made landfall as a
Category 1 on the Saffir-Simpson scale, the storm surge of 3.6 feet over MHHW broke the
Wilmington storm surge record going back to the 1930s. This beat the record that Hurricane
Matthew’s 3.48 foot storm surge set just two years before in 2016. 101 The flooding associated
with Hurricanes Florence and Michael can be visualized in the NOAA Sea Level Rise Viewer by
adding 3 feet to today’s MHHW (which was labeled in the Assessment as the “Low” scenario).
Observed rainfall in and around Wilmington during Florence totaled between 20 and 30
inches. 102 As many as 6 days after the storm made landfall, routes going in and out of
Wilmington were still blocked by water.

and T.K. Maycock (eds.)]. U.S. Global Change Research Program, Washington, DC, USA, pp. 207-230, doi:
10.7930/J0H993CC.
100
Masters, J. 2018. Florence’s 1-in-100 Year Storm Surge Breaks All Time Records. Weather Underground.
Accessed at https://www.wunderground.com/cat6/Florences-1-100-Year-Storm-Surge-Breaks-All-Time-Records,
Attachment 28.
101
Id., Attachment 28.
102
National Weather Service, Hurricane Florence, https://www.weather.gov/ilm/HurricaneFlorence, Attachment 29.
May 17, 2019
Page 24

Figure 4. Screenshot from the NOAA Sea Level Rise Viewer, accessed on 5/2/19.

There is a consensus among researchers that climate change will continue to make storms
and the floods that follow more intense, as warmer air can hold more moisture and add more fuel
to storm systems. 103 These impacts will be felt particularly acutely throughout the Southeast, 104
where extreme rainfall has already become more frequent and intense. 105 North Carolina is
particularly vulnerable, 106 as it ranks second behind Florida among US states for the number of
storms and hurricane that affect its shore. 107 While climate change will not increase the number
of hurricanes that form, it will make it easier for tropical systems to grow stronger, resulting in
more large hurricanes. The Atlantic basin has already seen an increase in the number of Category
4 and 5 hurricanes since the 1980s. 108

103
https://www.gfdl.noaa.gov/global-warming-and-hurricanes/ , Attachment 30 and
https://nca2018.globalchange.gov/chapter/19/ , Attachment 31.
104
Prein, A.F., Liu, C., Ikeda, K., Trier, S.B., Rasmussen, R.M., Holland, G.J., Clark, M.P. 2017. Increased rainfall
volume from future convective storms in the US. Nature Climate Change 7, 880-884, Attachment 32. By 2100
extreme summer thunderstorms that are typically 100-year flood events will drop 40-805 more raid than they do
today. Id.
105
Easterling, D. R., J. R. Arnold, T. Knutson, K. E. Kunkel, A. N. LeGrande, L. R. Leung, R. S. Vose, D. E.
Waliser, and M. F. Wehner, 2017: Precipitation Change in the United States. Climate Science Special Report:
Fourth National Climate Assessment, Volume I. Wuebbles, D. J., D. W. Fahey, K. A. Hibbard, D. J. Dokken, B. C.
Stewart, and T. K. Maycock, Eds., U.S. Global Change Research Program, Washington, DC, USA, 207–230.
doi:10.7930/J0H993CC. For example, the Southeast has already experienced a significant increase in extreme
rainfall from 2-day storms, which form in the region 50 percent more often than they did last century. Id.
106
Keim, B.D., Muller, R.A., Stone, G.W. 2004. Spatial and temporal variability of coastal storms in the North
Atlantic Basin. Marine Geology 210, 7-15, Attachment 33.
107
https://weather.com/storms/hurricane/news/2018-06-05-map-shows-how-many-tropical-storms-hurricanes-
struck-each-state; https://www.nhc.noaa.gov/climo/, Attachment 34.
108
Webser, P.J., Holland, G.J., Curry, J.A., Chang, H.R. 2005. Changes in tropical cyclone number duration and
intensity in a warming environment. Science 309, 1844-1846, Attachment 35.
May 17, 2019
Page 25
Marsh Migration

Finally, NCDOT has not considered marsh migration in its alternatives analysis. Marshes
provide important ecosystem services to communities in the form of flood storage and wave
buffering, 109 and provide wildlife habitat, fish nurseries, water purification, erosion control, food
supply, and carbon storage. 110 Tidal wetlands provide habitat for over 75% of the region’s
fishery species at some point in their lifecycle. 111 The role these wetlands play in community
protection is especially valuable given the region’s recent exposure to storm hazards and the
projected increased storm intensity associated with climate change. 112

Sea level rise threatens marshes and the ecosystem services they provide, as the plants
making up this habitat have adapted to live at very specific water levels and can drown from
higher water. Without man-made barriers, however, these marsh systems are able to migrate to
higher ground as seas rise. Marshes naturally respond to rising seas by gradually migrating
inland along with the water. As sea levels rise, tidal waters reach further in to formerly dry land,
creating new habitat space for marsh grass. Through a process of plant colonization, the marsh
grasses send out new shoots from their roots and shift into the new tidal area. As the marsh
grasses and other plants shift, the lowest lying patches of marsh grass become open water.
Evidence of marsh migration can already be observed up and down the coast along natural
shorelines as marsh grass replaces trees. 113 Development along the shoreline including roads and
bulkheads in potential marsh migration spaces cuts off the marsh’s evacuation route, and through
time can result in the loss of the marshland and its benefits. 114

109
Arkema, K., et al. 2013. Coastal habitats shield people and property from sea level rise and storms. Nature
Climate Change, 3. https://www.nature.com/articles/nclimate1944, Attachment 36. See also Shepard, C.C., Crain,
C.M., Beck, M.W. 2011. The protective role of coastal marshes: A systematic review and meta-analysis. Plos One,
6(11), Attachment 37, https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0027374 .
110
Sanger, D., & Parker, C. 2016. Guide to the Salt Marshes and Tidal Creeks of the Southeastern United States.
South Carolina Department of Natural Resources. Accessed at http://www.saltmarshguide.org/wp-
content/uploads/2016/11/SaltMarshTidalCreekGuide.pdf , Attachment 38.
111
South Carolina Department of Natural Resources. 2016. Guide to the Salt Marshes and Tidal Creeks of the
Southeastern United States. Page 23. Accessed at http://www.scseagrant.org/pdf_files/Salt-Marsh-Tidal-Creek-
Guide.pdf, Attachment 38.
112
Hayhoe, K., D.J. Wuebbles, D.R. Easterling, D.W. Fahey, S. Doherty, J. Kossin, W. Sweet, R. Vose, and M.
Wehner, 2018: Our Changing Climate. In Impacts, Risks, and Adaptation in the United States: Fourth National
Climate Assessment, Volume II[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K.
Maycock, and B.C. Stewart (eds.)]. U.S. Global Change Research Program, Washington, DC, USA, pp. 72–144.
https://nca2018.globalchange.gov/chapter/2/ , Attachment 39.
113
Smart, L. 2017. Unraveling Mysteries of Ghost Forests. North Carolina Sea Grant. Accessed at
https://ncseagrant.ncsu.edu/coastwatch/previous-issues/2017-2/holiday-2017/unraveling-mysteries-of-ghost-forests/
, Attachment 40.
114
Northeast Regional Ocean Council. 2015. Make Way for Marshes. Accessed at
https://www.northeastoceancounci.o lrgmmi/cottees/coastal-hazards-resilience/resilient-shorelines/make-way-for-
marshes/ , Attachment 41; see also
https://www.apcc.org/saltmarshrestoration/cape_cod_marsh_%20migration_report_2015.pdf, Attachment 42.
May 17, 2019
Page 26
As sea levels rise, the low-lying forested wetlands within the Cape Fear Basin could
provide valuable marsh migration space. Based on an elevation analysis, a majority of the
alternatives would pass through a large forested wetland that is already being converted to marsh
along the Southern extent of the project area on the river. 115 This space is necessary to ensure the
survival of the tidal marshland and the ecosystem services it provides to the region’s fisheries,
and the long-term health of the marsh system could be jeopardized if this space is cut off. Due to
the value that tidal marshes provide to the character and functioning of the Cape Fear Basin,
NCDOT must consider the impacts various alternatives would have on marsh migration.

IV. INADEQUATE ALTERNATIVES ANALYSIS

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.” 40 C.F.R. § 1502.24. The alternatives analysis, supported by
thorough scientific, expert, and public review, is intended to be the “heart” of the impact
statement. 40 C.F.R. § 1502.14. Despite this mandate, the DEIS only offers one true alternative:
a new location highway and bridge.

A. The DEIS Fails to Consider a Reasonable Range of Alternatives

The agencies’ methodology undercuts the very purpose of the NEPA process, which is to
fully and fairly evaluate a reasonable range of alternatives and to do so in a manner that involves
the public. The NEPA process, including the EIS, is designed to “serve[] as an environmental
full disclosure law, providing information which Congress thought the public should have
concerning the particular environmental costs involved in a project.” Silva v. Lynn, 482 F.2d
1282, 1285 (1st Cir. 1973). Additionally, a detailed EIS “helps to insure the integrity of the
process of decision by precluding stubborn problems or serious criticism from being swept under
the rug.” Id.; see Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1285–86 (1st Cir. 1996)
(“Thus, the EIS helps satisfy NEPA’s ‘twin aims’: to ensure that the agency takes a ‘hard look’
at the environmental consequences of its proposed action, and to make information on the
115
Preliminary TNC data on marsh migration feeding into the Resilient Coastal Sites for Conservation in the
Southeast analysis was also used to identify marsh migration areas in the Cape Fear basin. The Nature Conservancy.
2017. Resilient Coastal Sites for Conservation in the Northeast and Mid-Atlantic. Early access to data granted
through correspondence.
May 17, 2019
Page 27
environmental consequences available to the public, which may then offer its insight to assist the
agency's decision-making through the comment process.”).

The EIS must contain sufficient and necessary information to allow the public to
scrutinize the agency’s review and examine the “basis for a comparison of the problems involved
with the proposed project and the difficulties involved in the alternatives.” Silva, 482 F.2d at
1285 (quoting Monroe Cnty. Conservation Council v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972)).
Because the Merger Team eliminated the majority of alternatives from consideration prematurely
and without formal documentation, the transportation agencies deprived the public and local
decision-makers of the opportunity to meaningfully participate in the alternatives selection
process and contravened NEPA. See N.C. Wildlife Fed’n, 677 F.3d at 601-02 (quoting Marsh v.
Or. Natural Res. Council, 490 U.S. 360, 371 (1989)) (internal quotation marks omitted).

1. The DEIS Used an Unclear, Undisclosed Alternatives Screening Process.

The DEIS contains only the barest summaries of early alternative screenings. An initial
Qualitative Screening evaluated alternatives according to the project purpose and need. The
transportation demand management, transportation system management, and mass
transit/multimodal alternatives were all eliminated after a “Qualitative First Screening.” The
arbitrary elimination of these alternatives is discussed in greater detail below. The nature of this
qualitative first screening, including what if any criteria were applied to the alternatives, was not
disclosed with the DEIS or accompanying materials. It is not clear whether the qualitative
screening is memorialized in any written report or if it took place solely in agency meetings.

A Quantitative Second Screening followed, which according to Merger Team minutes


was “based on potential impacts to natural resources, the human environmental and cultural
resources, as well as the cost and other physical features associated with each corridor.” 116 Like
the Qualitative First Screening, this second-tier screening does not appear to have been
memorialized in any publicly-disclosed report. The undocumented second-tier screening then
employed a quartile-ranking system to eliminate alternatives 117—but such a method can result in
arbitrary elimination of alternatives that performed only marginally worse in a single parameter.

As further evidence of the arbitrary nature of the first and second screenings, in 2013,
two new alternatives were inserted into the screening process—without subjecting them to the
same first and second tier reviews as all other alternatives. 118 The explanation given was that the
first and second screenings “were not necessary, as [the new alternatives] were added later in the
planning phase of the project and would not present an accurate comparison.” This justification
116
Draft Interagency Merger Process Team Meeting, Concurrence Point 2, July XX, 2013 at DEIS App. E.
117
Draft Interagency Merger Process Team Meeting, Concurrence Point 2, July XX, 2013 at DEIS App. E.
118
Memorandum to Meeting Attendees from Joanna Rocco, RE: Minutes of Meeting held July 22, 2013 at 1:00pm,
July 26, 2013, at DEIS App. E.
May 17, 2019
Page 28
would seem to counsel in favor of redoing the initial screenings with all alternatives, including
the new ones, so as to “present an accurate comparison” between all alternatives considered.

Traffic operations were only analyzed at the Quantitative Third Screening. 119 This
invites the question of how the mass transit, TDM, and TSM alternatives could have been
determined to not meet the purpose and need of the project if their traffic operations impacts
were never analyzed.

2. NCDOT Prematurely Eliminated Reasonable Alternatives.

Agencies have a “duty under NEPA . . . to study all alternatives that appear reasonable
and appropriate for study at the time of drafting the EIS, as well as significant alternatives
suggested by other agencies or the public during the comment period.” Roosevelt Campobello
Int’l Park Comm’n. v. U.S. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982) (internal quotation marks
omitted). Only unreasonable alternatives can be eliminated. 40 C.F.R. § 1502.14(a). NCDOT
prematurely eliminated mass transit, TDM, and TSM alternatives without adequate analysis, and
arbitrarily eliminated two upgrade existing roadway alternatives prior to the DEIS’s publication.

a. Bias Against Increased Public Transportation

Notes from an interagency meeting in 2010 demonstrate an early bias against this
alternative. When the EPA asked whether such an alternative would be included for study,
NCDOT’s consultant completing the alternatives analysis stated such an alternative would be
analyzed “but would likely be screened out early because it will not meet the Purpose and Need
of the project.” 120 Yet the purpose and need statement for the project was still not finalized at
that time. The alternative appears to have been eliminated during a Tier 1 screening with the
scant explanation that “this alternative could provide minor improvements,” but “they are not
enough to be an acceptable solution to the projected future traffic capacity issue.” No
explanation is provided as to how much mass transit would be “an acceptable solution”, and in
turn, why such improvements would be insufficient. Instead, the reasoning offered was that
“[t]here are also no notable plans in the region with respect to mass transit, such as a commuter
rail plan, that would suggest mass transit would increase capacity to an acceptable level.” 121 In
essence, the alternative was rejected because it does not already exist. Instead, the
Transportation Agencies should have evaluated how a project for commuter rail and other mass
transit improvements could meet the project purpose and need.

119
Draft Interagency Merger Process Team Meeting, Concurrence Point 2, July XX, 2013 at DEIS App. E.
120
Meeting Minutes (Draft), Turnpike Environmental Agency Coordination (TEAC) Meeting, Feb. 16, 2010, at
DEIS App. E.
121
Meeting Minutes, Turnpike Environmental Agency Coordination (TEAC) Meeting, Jan. 20, 2011, at DEIS App.
E.
May 17, 2019
Page 29
b. Transportation System Management and Transportation Demand
Management

The reasoning that led to elimination of TSM and TDM strategies is largely
undocumented. Both of these alternatives were determined to not meet the purpose and need of
the project, apparently because the degree of improvements from either alternative was not
considered to be sufficient. The DEIS was apparently rejected because “it was determined that
due to the magnitude of the traffic deficiencies (many intersections having a delay twice the
threshold for Level of Service F) that TSM type improvements would not alleviate the traffic
operations problems.” 122 The purpose and need statement, however, contains no threshold
amount of necessary improvement.

The DEIS points to the existing Wave Transit Wave Pool Program in relation to TDM,
noting that current participation in that program would not be sufficient to provide “noticeable
improvement in traffic conditions in the project study area.” 123 But the status quo TDM
measures are not alternative to be considered, rather, the point is for NCDOT to consider new,
expanded, TDM opportunities.

c. Combination

The DEIS states that “four different scenarios were evaluated that included TSM
measures with varying degrees of TDM concepts and mass transit.” 124 No additional details are
provided as to the four scenarios or how they were evaluated. NCDOT again appears to be
holding this alternative to an undisclosed, arbitrary threshold of necessary improvement in
relation to the purpose and need, dismissing it as not achieving enough transportation
improvements without disclosing what would be considered a sufficient level of improvement.
The DEIS claims that such an alternative was “unlikely” to “be reasonable due to the
unlikelihood of travelers to change their behavior or use mass transit to that degree.” 125 No
support is provided for this assumption.

d. Upgrade Existing Roadways

Failure to give “substantial treatment” to this reasonable alternative—improving existing


highways—without providing “adequate justification for its omission” is necessarily arbitrary
and a violation of NEPA. Southeast Alaska Conservation Council v. FHWA, 649 F.3d 1050,
1059 (9th Cir. 2011). Yet, that is precisely what NCDOT has done here.

122
Meeting Minutes, Turnpike Environmental Agency Coordination (TEAC) Meeting, Jan. 20, 2011, at DEIS App.
E.
123
DEIS at 2-3.
124
DEIS at 2-4.
125
DEIS at 2-4.
May 17, 2019
Page 30
In 2014, the Merger Team agreed upon 12 DSAs, consisting of six paired similar routes,
including the upgrade existing alternatives F and P. 126 The DEIS collapsed each pair into a single
DSA—except for the F/P pair, which mysteriously is not included as a DSA in the DEIS despite
the Merger Team’s previous concurrence. The F and P alternatives were allegedly eliminated
due to potential 4(f) impacts—however, the alternatives never reached a late enough stage of
review to determine the exact location of the affected 4(f) properties, whether impacts to those
properties could be adequately minimized, and how these alternatives compared to other
alternatives in terms of costs and impacts. The USACE raised concerns about eliminating these
alternatives prematurely “without knowing where the Historic properties exist and what impacts
may be requested at these locations.” 127 It is not clear whether this concern was ever addressed.
Indeed, as of the Concurrence Point 2 in the Merger Team process, 12 alternatives—including F
and P—had progressed for further study. Indeed, a 2014 WMPO Transportation Advisory
Committee Workgroup Meeting presentation indicates that twelve alternatives, including F and
P, were still under review. 128

Rather, at a May 30, 2017 meeting, a Concurrence Point 2A Meeting was held. The
meeting minutes claim that “Alternatives F, P, VA, and VF have impacts to Section 4(f)
resources and therefore FHWA would not be able to select any of these alternatives as the
preferred alternative since there are alternatives that meet the purpose and need that do not use
Section 4(f) resources.” 129 Notably, at this same meeting, a table comparing the 12 DSAs
indicated that six other alternatives—Alternatives B, G, NA, T, VA, and VF—also had Section
4(f) land within the proposed right of way, and Alternatives B, T and NA were retained in the
DEIS.

No explanation is provided, as to the nature of these impacts on 4(f) properties for any of
the alternatives—indeed, there is no evidence that any additional review was conducted since the
USACE raised concerns about the prematurely elimination of Alternatives F and P back in 2013.
The meeting summary also points to how Alternatives F and P are “controversial”—but that is
not a reason to eliminate an alternative, especially for a project where arguably every single DSA
is “controversial” as evidenced by local opposition. A discussion was held regarding whether or
not “it was appropriate” to eliminate Alternatives F, P, VA, and VF at such an early stage due to
their Section 4(f) impacts, but a decision was tabled because USEPA, which had suggested
Alternatives VF and VA, was not present at the meeting.

126
E.g. Memorandum to Project File from Joanna Rocco, Re: Minutes of Meeting held November 12, 2015 at
10AM, Dec. 11, 2015, at DEIS App. E.
127
E-mail from Brad E. Shaver, U.S. Army Corps of Engineers, to Joanna Rocco, Dec. 19, 2013 2:42 PM, at DEIS
App. E.
128
DEIS App. E.
129
Meeting Summary, U-4738 Concurrence Point 2A Meeting, May 30, 2017 at DEIS App. E.
May 17, 2019
Page 31
Alternatives F and P were finally eliminated from consideration at a Concurrence Point
2A Follow-Up meeting in August 2017. USEPA was not present at the meeting. USACE again
expressed concerns about eliminating the alternatives without “additional documentation of the
adverse effects.” FHWA offered to draft a letter to the Corps “documenting the fact they cannot
select either Alternatives F and P based on adverse effects to Section 4(f) resources as well as
there being other feasible and prudent avoidance alternatives.” 130 The Corps eventually
acquiesced to eliminating Alternatives F, P and VF based on an October 18, 2017 FHWA letter.

The October FHWA letter, however, merely selectively quotes Section 4(f) regulations
and states that Alternatives F, P, VA, and VF have “right of way impacts to a Section 4(f)
resource,” and that, as such FHWA had determined that the alternatives could not be approved
by FHWA because prudent and feasible alternatives that avoid the Wilmington Historic District
existed. 131

Completely undercutting its all-or-nothing approach to Section 4(f) resources, FHWA


then declared that it was “willing to concur on continuing to study Alternative VA with the
understanding that NCDOT will seek to reduce impacts of this alternative on the Wilmington
Historic District” because NCDOT and the Corps were interested in continuing to study that
alternative. No explanation is given as to why FHWA could make an exception for the VA
alternative, but not for any of the other alternatives that allegedly violated Section 4(f). Indeed,
FHWA had previously indicated that that it had “the same stance on Alternatives VF and VA as
previously described for Alternatives F and P due to adverse effects to Section 4(f) resources . . .
.” 132

The FHWA letter failed to mention the rubric for analyzing a “prudent and feasible
alternative,” which can in fact be an alternative that does have some Section 4(f) impacts. Title
23 C.F.R. Section 774.17 defines feasible and prudent avoidance alternative and specifically
enumerates several reasons an alternative is not prudent, including that

(iii) After reasonable mitigation, it still causes:

(A) Severe social, economic, or environmental impacts;

(B) Severe disruption to established communities;

(C) Severe disproportionate impacts to minority or low income


populations; or

130
Meeting Summary, U-4738 Concurrence Point 2A Follow-up Meeting, Aug. 17, 2017, at DEIS App. E.
131
Letter to Brad Shaver, U.S. Army Corps of Engineers, from John F. Sullivan, Fed. Hwy. Admin., Oct. 18, 2017,
at DEIS App. E.
132
Meeting Summary, U-4738 Concurrence Point 2A Follow-up Meeting, Aug. 17, 2017, at DEIS App. E.
May 17, 2019
Page 32
(D) Severe impacts to environmental resources protected under other
Federal statutes;

23 C.F.R. § 774.17. Given the severe environmental impacts of the remaining DSAs, they
may in fact not be prudent, thus allowing FHWA to authorize the F or P Alternatives. These
alternatives should have been carried forward to be analyzed in the DEIS, with a proper 4(f)
analysis applied to all alternatives.

Alternatives F and P were the lowest-cost alternatives and had some of the greatest travel
time benefits. Alternative F was projected to decrease travel time by 44.28 percent compared to
the No Build, putting it as the top time-saving alternative, and Alternative P came in third with a
35.9% decrease in travel time. 133 Division of Coastal Management also had noted that these two
alternatives “have the least open water impacts and least impacts for essential fish habitat and
migratory fish species.” 134

e. Unconsidered rail options

To the extent that enhancing freight traffic and port accessibility are purposes of this
project, NCDOT should have considered an alternative incorporating rail components. Indeed,
in 2013 EPA requested that “an upgrade existing alternative in combination with multi-modal,
notably rail, be studied further,” but there is no evidence of such an alternative ever being
evaluated during the NEPA process. 135 A few months later, the N.C. State Port Authority
acknowledged that “Wilmington is primarily a truck market due to lack of intermodal rail
facilities,” and that “from the Port and the community perspective, there is a need for an
additional rail crossing over the Cape Fear River and new arrival/departure tracks.” 136 Despite
these comments during the Merger process, there is no evidence that a rail option was ever
considered by the agencies.

B. The DEIS Relies on Flawed, Insufficient Traffic Forecasts.

As alluded to above, the DEIS fails to include any traffic forecast analysis data for
alternatives that were discarded early on, despite the fact that the agencies state that alternatives
including TSM, TDM, multi-modal alternatives, and a combination of these solutions were
discarded based on data.

133
Presentation, Cape Fear Crossing Concurrence Point 2A, May 30, 2017, slide 19, at DEIS App. E.
134
Meeting Summary, U-4738 Concurrence Point 2A Follow-up Meeting, Aug. 17, 2017, at DEIS App. E.
135
Meeting Minutes, U-4738 Concurrence Point 2 Meeting, Sept. 18, 2013 at DEIS App. E.
136
Memorandum to Meeting Attendees from Joanna Rocco, Re: Minutes of Meeting held November 20, 2013 at
10:00AM, Dec. 16, 2013, at DEIS App. E.
May 17, 2019
Page 33
For example, while the DEIS refers to traffic forecasts in its brief two paragraphs
dispensing with the multi-modal alternative, there appears to be no forecasting associated with
any of these alternatives. 137 The statement that “it is unreasonable to expect 2,100 vehicles to
shift from vehicle use to mass transit” is completely unsupported and arbitrary. A shift of 2,100
vehicle trips a day is not many, and the agencies have made no attempt to investigate this claim
in any real way. Moreover, the agencies have failed to examine whether transit use would
increase once congestion became more severe. Worse, the agencies failed entirely to make any
informed analysis of whether a combination of different alternatives including TSM, TDM and
multi-modal could work to meet the purpose and need. Rather, the agencies state vaguely that
“[t]hrough examination of the four scenarios, it was determined to be unlikely that any of the
scenarios would be reasonable due to the unlikelihood of travelers to change their behavior or
use mass transit to that degree.” 138 Again this conclusory statement is not supported by any data
or analysis. While the agencies have determined that it would only require 2,100 vehicle trips to
shift to multi-modal to meet the project need, they have included no data as to how many fewer
trips would need to shift if TSM and TDM solutions were set in place. A vague statement is
given that the “TSM forecasts” were used as a baseline for this analysis, but the analysis itself is
not presented to the public in any of the technical reports. 139

The traffic forecasts for the alternatives that were considered are also replete with
errors. First, like many NCDOT traffic forecasts before them, the forecasts suffer from a
fundamental error because all “build” and “no build” forecasts are based on identical projections
of growth and land use. Both Build and No Build Forecasts for 2040 were based on socio-
economic data from the 2035 WTDM without any apparent adjustment for the changes in land
use and socio-economic characteristics that the project may produce. 140

It is unclear from the Traffic Memorandum whether or not the Cape Fear Crossing was
factored into the WTDM socio-economic data. As a primary matter, this is something that
should have been disclosed to the public. N.C. Wildlife Fed’n, 677 F.3d 596 at 603. Assuming
that the project was factored into the socio-economic data, its inclusion means that the agencies
failed to include the accurate no-build baseline essential for a satisfactory NEPA review. Id.
(citing Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1037-38 (9th Cir. 2008)); see
also Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 588 (4th Cir. 2012) (“A
material misapprehension of the baseline conditions existing in advance of an agency action can
lay the groundwork for an arbitrary and capricious decision.”); Openlands v. USDOT, No. 1:13-
cv-04950, 2015 WL 4999008, at *10 (N.D. Ill. June 16, 2015) (holding that without a true “no
build” scenario, it is “impossible to determine the extent to which building the Corridor will

137
DEIS at 2-3, 2-4.
138
DEIS at 2-4.
139
Id.
140
See Traffic Forecast Technical Memorandum at 25, 27.
May 17, 2019
Page 34
increase traffic on existing roads and the impact such increased traffic may have on the study
area).

If the project was NOT factored into the underlying socio-economic data, the error is just
as severe. The project and its likely impact on socio-economic growth and development patterns
should have been incorporated in the “Build” forecasts. Guidance for properly including socio-
economic development changes into traffic forecasts is set out in a FHWA guidance
document. 141

In addition to this fundamental flaw underpinning the traffic forecasts, the forecasts
suffer from the simple problem of being significantly outdated. The Traffic Forecast Technical
Memorandum includes “interim” projections for 2020, disregarding the fact that today it is 2019,
and that by 2020 it is doubtful environmental review will have even been completed. Given that,
and the funding status of the project, it would be impossible for the project to advance to
construction as early as 2020. Baseline forecasts are from 2013 (interpolated from 2008 model
data) and thus severely out of date. There is nothing in the technical reports to show if the
predictions made in 2013 have panned out, and how models should be recalibrated. Indeed, the
Traffic Simulation Technical Report notes that NCDOT specifically declined to recabilbrate the
model based on up to date information. 142 Similarly, the 2035 and 2040 build forecasts, in
addition to being outdate, do not look at far enough. Given that this massive project is currently
unfunded, it seems highly unlikely that it could be constructed before 2025. As such, the traffic
forecasts only look out 15 years in the future—an insufficient time horizon for a project of this
cost and magnitude.

Federal courts have been clear that agencies must analyze the impacts and alternatives of
a specified project over a sufficient period of time in order to satisfy the requirements of NEPA.
After all, “the basic thrust of an agency’s responsibilities under NEPA is to predict the
environmental effects of proposed action before the action is taken and those effects fully
known.” Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1092
(D.C. Cir. 1973); Northern Plains Resource Council v. Surface Transportation Board, 668 F.3d
1067 (9th Cir. 2011); Potomac Alliance v. U.S. Nuclear Regulatory Commission, 682 F.2d 1030
(D.C. Cir. 1982).

Similarly, Federal and State guidance documents require agencies implementing NEPA
to study impacts and alternatives well into the future. For example, FHWA guidance for
preparation of environmental documents for highway projects identifies a number of “typical

141
FHWA, Instructions for Reviewing Travel and Land Use Forecasting Analysis in NEPA Documents (Feb. 21,
2018) available at:
https://www.environment.fhwa.dot.gov/nepa/Travel_LandUse/forecasting_reviewer_guidance.pdf, Attachment 43.
142
Traffic Simulation Technical Report at 9.
May 17, 2019
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direct effects that have their basis in travel and/or land use forecasting.” 143 These direct effects
that should be forecasted include those relating to congestion/delay, travel choices, revenue (e.g.
toll revenue), and environmental/social effects such as air quality, traffic diversion, noise, and
“[t]ravel benefits for different socioeconomic groups.” 144 The FHWA guidance also speaks to
indirect and cumulative effects such as land use changes. Generally, “[f]or transportation
investments that are regionally important in scale, such as new or substantially improved
highway facilities, it is more likely that the future land use patterns will be different if the
alternative is built.” 145 As such, FHWA recommends the use of 20 to 30-year time horizons for
long-range transportation planning purposes to satisfy NEPA’s effects forecasting
requirements. 146

Guidance put forth by the Center for Environmental Excellence of the American
Association of State Highway and Transportation Officials (“AASHTO”) 147 also recognizes
longer planning horizons for road projects and toll projects in particular. AASHTO’s Guidance
on indirect and cumulative impacts asserts that “[t]he time frame for the indirect effects
assessment should be long enough to include reasonably foreseeable events,” typically, 20-25
years. 148 Specifically, AASHTO assumes designation of a design year 20-25 years into the
future for NEPA compliance for toll roads or lanes. 149 Additionally, the AASHTO toll guidance
recognizes traffic diversion as a probable consequence of tolled lanes. See id. at 7. AASHTO
recommends “present[ation of] data (level of service, traffic volumes, etc.) at selected points on
the local road network, in addition to presenting traffic data showing operations on the toll road
itself.” Id.

V. SEVERE ENVIRONMENTAL IMPACTS

The DEIS presents six DSA, each of which is environmentally destructive. All of the
DSAs would impact thousands of feet of streams and dozens of acres of wetlands. The DSAs
would also impact habitat critical to endangered and rare species, and would lead to degradation
of air quality in the study area. Despite the project’s capacity to cause such severe
environmental degradation, NCDOT has conducted only a cursory review of the project’s direct,
143
FHWA, Interim Guidance on the Application of Travel and Land Use Forecasting in NEPA (Mar. 2010)
available at: https://www.environment.fhwa.dot.gov/nepa/Travel_LandUse/travel_landUse_rpt.pdf, Attachment 8.
144
Id.
145
Id.at 26.
146
See id. at 4, 61.
147
Membership State by State, AASHTO (2013), https://meetings.transportation.org/overview-benefits/membership-
state-by-state/, Attachment 44; About the Center, Center for Envtl. Excellence by AASHTO (2013),
http://environment.transportation.org/center/about/.; Attachment 45.
148
Assessing Indirect and Cumulative Impacts under NEPA, AASHTO 8, 13 (2011),
http://environment.transportation.org/pdf/programs/practitioners_handbook_12.pdf.; Attachment 46.
149
Managing the NEPA Process for Toll Lanes and Toll Roads, AASHTO Center for Envtl. Excellence 6 (2006),
http://environment.transportation.org/pdf/programs/PG03.pdf.; Attachment 47.
May 17, 2019
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indirect and cumulative impacts; overlooked numerous water and air quality impacts; failed to
thoroughly evaluate impacts to endangered sturgeon species and the red cockaded woodpecker;
and altogether failed to consider impacts to the rare Venus flytrap. These omissions and
oversights mean that NCDOT has failed to take a “hard look” at environmental impacts as
required by NEPA.

A. Nearly Nonexistent Indirect and Cumulative Impacts Analysis

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.

The DEIS contains a brief 4 paragraph “summary” of indirect impacts which essentially
dismissed all impacts as being limited by state and federal regulations. 150 There is a brief note
that the Build alternatives may increase impervious surfaces, but this concern is dismissed noting
in a conclusory way that “water quality concerns will be avoided and/or mitigated through
compliance with regulations covering watershed protection, floodplain protection, stream and
river buffers, and stormwater management.” 151 These is no evidence to show that existing
regulations can eliminate water quality concerns to this extent.

A slightly more detailed analysis of Indirect and Cumulative Effects is contained in the
“Land Use Scenario Assessment Technical report.” This report however focuses primarily on
land use, and does not take the second step of identifying in any detail how water quality, air
quality, habitat, endangered species, environmental justice communities, and other concerns may
be impacted by the different project alternatives. Instead, brief statements are given in a very
general way to note that increased development can increase impacts to environmental resources.
For example, the report notes “[i]nduced growth and development would increase stormwater
runoff and turbidity which would negatively impact habitat,” and “[i]ncreased surface water
runoff from induced growth could further contribute poor water quality.” 152 This vague analysis
gives the reader no sense of the magnitude of the indirect impacts, and does not provide any way
to make a reasoned choice between alternatives.

The temporal scope of the Land Use Scenario Assessment is also insufficient. The time
horizon used as with the time horizon for traffic forecasts noted above) is 2040. As discussed

150
DEIS at 4-64
151
Id.
152
Land Use Scenario Assessment at 75-76.
May 17, 2019
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above this time horizon is insufficiently short for a project of this cost and magnitude, and
particularly if the project is anticipated to be paid for by tolls over several decades. The review
period set for indirect impacts of the project is set for between 2010 and 2040 and ignores
entirely that today, in 2019, we are already almost a third of the way through this “study” period.
As noted above, the project is not yet funded, and it remains highly unlikely that it will be
constructed before 2025. A fifteen year time horizon is wholly insufficient to review the indirect
and cumulative impacts a project like this will generate.

A further flaw in the analysis is the failure to make any analysis of how the project may
impact the Port of Wilmington and result in additional indirect effects on the environment. In
the stated project purpose and need for the project it is noted that “[f]uture growth projections
suggest that congestion levels on the local transportation network could hamper the Port’s
growth plans and competitiveness,” and that “[d]eficiencies in the existing transportation
network diminish the ability to efficiently distribute goods and services from the Port of
Wilmington.” 153 The Land Use Scenario Assessment similarly states that “[w]ithout
improvements to the existing transportation and distribution network, the Port of Wilmington
may not be able to capitalize on the opportunity for increased shipping and cargo volumes,” 154
and that the project is “is necessary to accommodate growth.” 155

Given this stated connection between the project and expansion of the Port, NEPA
requires an analysis of the impact that the Port expansion would have on the environment—it is
an indirect impact of the Project. While the Land Use Scenario Assessment includes the Port of
Wilmington in the FLUSA and notes the impact it has on jobs and growth in a general way, 156
there is not, however, any assessment of how land use or environmental impacts may change as a
result of Port expansion. While the Land Use Scenario Assessment does suggest that trucks at
the Port will increase in the future, it admits no connection between that increase and
construction of the project. No other environmental impacts of the Port expansion are examined.

More generally, the analysis of indirect and cumulative impacts is contradictory, both
internally and with statements contained in the DEIS. While the Land Use Scenario Assessment
admits that each of the Build alternatives will “further improve transportation efficiencies in the
FLUSA, making this area more attractive to residential and commercial growth” it also states
that there is “little divergence between the Build Scenarios and the No‐Build Scenario.” 157 The
DEIS states that “local planners indicated that overall the developable areas of the FLUSA are
likely to be developed with or without the project based on other contributing factors and growth

153
DEIS at 1-3.
154
Land Use Scenario Assessment at 6
155
Id.
156
Id. at 20.
157
Id. at 77
May 17, 2019
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trends.” 158 Interviews with these local planners are not disclosed in the DEIS or available for
review in technical documents. Moreover, there is insufficient information provided at this time
to determine whether the project has been factored into data underlying the “No Build” land use
scenario created for the project. NCDOT has made such an error before, and it appears likely
here.

In sum, it is entirely unclear after reading the two documents whether the different
project alternatives are expected to result in induced growth and associated impacts, what those
impacts will be, how different project alternatives will differ in their impacts, and how much
these impacts may be controlled and mitigated. The analysis fails to comply with NEPA’s
strictures to disclose indirect and cumulative impacts to the public. 40 C.F.R. § 1508.8(b).

B. Water Resources

The Cape Fear Crossing would have enormous impacts on water resources throughout the
project study area. The DEIS estimates that anywhere from 1,667 to 8,779 linear feet of
streams 159 would be directly and permanently impacted, and anywhere from 39.7 to 140.2 acres
of wetlands 160 would be directly impacted. Each DSA would also impact Coastal Area
Management Act designated wetlands. 161 These impact numbers, however, are likely severely
underestimated. The DEIS arbitrarily omits impacts to wetlands and streams that will be
“bridged over,” 162 Despite the fact that at a t May 8, 2017 project team meeting, “[i]t was noted
at all bridge crossings, impacts should be calculated for wetlands as well.” 163

According to the 2015 Hydraulics Analysis Report, 18 bridge crossings were considered
across all the different alternatives, 164 with as many as 7 considered for a single alternative
(DSA B). 165 Even this report, however, fails to make clear how many additional acres of
wetlands and streams would be impacted by the project if the DEIS appropriately considered
impacts to these bridged-over resources. Regardless, the Hydraulics Analysis itself is further
flawed. In evaluating all the different hydraulic crossings for design purposes, NCDOT looked
to flood frequency data from 2001. As previously noted, this data is seriously outdated and
likely no longer accurate given accelerating sea level rise and increasingly frequent flood events

158
DEIS at 4-64.
159
DEIS at 4-44, Tbl. 4-17.
160
Id. at 4-46, Tbl 4-20.
161
Id.
162
Id. at 4-43 (“The linear feet show in Table 4-17 and 4-18 do not include areas where bridges would be placed
over larger stream systems. The bridged areas have been removed from the analysis.”); 4-46 (“The acreages shown
do not include areas where bridges would be placed over larger wetland systems. The bridged areas have been
removed from the analysis.”).
163
Memorandum to Project File from Celia Foushee, re: Pre-CP2A Meeting, May 8, 2017, DEIS at App. E.
164
Hydraulic Analysis Report (2016) at 3 Tbl 1.
165
Id. at 5-6, Tbl 2.
May 17, 2019
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in the study area. 166 NCDOT’s use of outdated data could lead to a need to dramatic changes in
project design in order to make the project viable in the face of increased flooding. These
differences in design would affect environmental impacts and costs.

The DEIS lists possible impacts to water resources as including pollution from
stormwater runoff, increased sedimentation and turbidity from construction activities, substrate
destabilization, bank erosion, increased turbidity altered flow rates, and temperature
fluctuations. 167 These disturbances in turn can carry soils and toxic compounds into downstream
waters, and removal of streamside vegetation may cause higher water temperatures due to
increased light penetration. 168 Despite acknowledging these general, possible impacts from such
an infrastructure project as the one considered here, neither the DEIS nor any of the technical
reports provide any detail as to the nature of the impacts from the proposed project to the
specific wetlands and streams in the project study area. While one stream might be able to
withstand some increased sedimentation, another stream might be susceptible to the slightest
change so as to severely harm its overall water quality. NEPA requires that an EIS fully and
fairly discuss adverse environmental impacts of a proposed project, including “effects on natural
resources and on the components, structures, and functioning of affected ecosystems,” as well as
“aesthetic, historic, cultural, economic, social or health [effects].” 40 C.F.R. § 1508.8(b).
NCDOT’s bare quantification of impacted resources, without any elaboration so the actual
“effects on natural resources,” violates NEPA.

The impacts noted by NCDOT are also likely outdated, given that according to the
Natural Resources Technical Report, the majority of original field work was completed in 2013
and 2014, with supplemental field surveys for “extended study areas added to the project”
completed in 2015 and 2016. 169 As noted above, sea level rise is already happening along the
North Carolina coast—and with that, wetlands are migrating, all of which impacts water
resources in the project study area. A wetland observed in 2013 may now be larger, or may have
migrated slightly in the intervening years, so that the impacts are slightly different than before.

Moreover, as discussed above, wetlands and water quality are likely to be indirectly
harmed in significant ways by the project.

C. Undocumented Impacts to Biotic Resources

166
Supra notes 96-110.
167
DEIS at 4-42.
168
Id. at 4-42.
169
Natural Resources Technical Report at 2.
May 17, 2019
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NCDOT’s cursory review of environmental impacts omits any meaningful discussion of
the project’s impacts to wildlife and to essential fish habitat. NCDOT’s failure to adequately
identify and consider these impacts violates NEPA.

1. Unanalyzed Impacts to Wildlife

NCDOT’s review of impacts to wildlife and biotic communities suffers from the same
shortcomings as their review of water resources—namely, a failure to document the nature of
any impacts. The DEIS dedicates less than three pages to discussing impacts to wildlife and
“biotic communities, almost exclusively limiting its discussion to tables quantifying the acres of
particular biotic communities impacted. The DEIS concludes that “[i]mpacts to terrestrial
communities resulting from land clearing are unavoidable,” but the document fails to explain
where such land clearing is likely to occur, or what impacts would then follow. 170 Similarly, the
DEID makes the generalized observation that construction activities “in or near terrestrial
resources have the potential to impact the biological function of these resources.” 171 Given
NCDOT’s projections about the quantity of terrestrial community impacts—475.18 to 752.79
acres—and forest impacts—113 to 380 acres—these impacts are not insignificant, despite being
unexplained. 172 Moreover, NCDOT’s breakdown of different types of terrestrial communities
highlights the likely diversity of wildlife and habitat in the project study area, identifying 15
different types of terrestrial communities that would be impacted by the project. 173

NCDOT provides the barest amount of additional detail about wildlife impacts, noting
that “[a]ny of the detailed study alternatives would result in direct impact to both natural and
altered terrestrial communities through clearing of vegetation, grading, and paving.” 174 The
DEIS also acknowledges some effects from displacement, habitat reduction, and habitat
fragmentation—but fails to name a single specific species in doing so. While the Natural
Resources Technical Report does list terrestrial and aquatic species observed in the project area,
it provides no more information about how any of these species would be impacted by the
project. 175 Moreover, neither the DEIS nor the Natural Resources Technical Report provides any

170
DEIS at 4-40.
171
Id. at 4-40.
172
Id. at 4-40 at Tbl 4-15; id. at 4-41 at Tbl 4-16.
173
Id. at 4-40 Tbl 4-15.The different communities are Coastal Plain Bottomland Hardwood – Blackwater Subtype,
Coastal Plain Small Stream Swamp – Blackwater Subtype, Cutover, Cypress/Gum Swamp – Blackwater Subtype,
Estuarine Woody Wetland, Maintained/Disturbed, Mesic Pine Flatwoods, Nonriverine Swamp Forest, Nonriverine
Wet Hardwood Forest, Pine Plantation, Pocosin, Salt/Brackish Marsh, Small Depression Pocosin, Wet Pine
Flatwoods, and Xeric Sandhill Scrub.
174
DEIS at 4-41.
175
Natural Resources Technical Report at 15.
May 17, 2019
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analysis of the specific impacts to wildlife from specific DSA. This lack of detail prevents any
reasoned choice between the DSAs.

2. Inadequate analysis of Essential Fish Habitat

The discussion of impacts to Essential Fish Habitat in both the DEIS and the supporting
two-page Essential Fish Habitat Assessment Memorandum is sorely inadequate. The Cape Fear
Crossing project would require bridges to be constructed over the Cape Fear and Brunswick
Rivers and adjoining streams and wetlands, which are part of the area identified by the National
Marine Fisheries Service (“NMFS”) as Essential Fish Habitat for multiple species, including
bluefish, coastal pelagics, and species in the snapper-grouper complex. 176 Essential Fish Habitat
is defined by statute to mean “those waters and substrates necessary to fish for spawning,
breeding, feeding or growth to maturity.” 16 U.S.C. § 1853(a)(7) and § 1802(10). As used in
this definition, “waters” include “aquatic areas and their associated physical, chemical, and
biological properties that are used by fish and may include aquatic areas historically used by fish
where appropriate;” and “substrate” includes “sediment, hard bottom, structures underlying the
waters, and associated biological communities.” 50 C.F.R. § 600.10.

Neither the DEIS nor the supporting Essential Fish Habitat Assessment Memorandum
provide any information or maps on where precisely the designated Essential Fish Habitat areas
occur for each species within the project area. In fact, the DEIS’s limited discussion does not
even list the specific species at issue. The Essential Fish Habitat Assessment Memorandum does
list the species, but for location, it merely gives general areas of “the Cape Fear River,
Brunswick River, and Alligator Creek.” 177 As can be seen from the attached maps, 178 the
designated Essential Fish Habitat in fact extends beyond the main river bodies into abutting
streams and wetlands.

Moreover, neither the DEIS nor the supporting Essential Fish Habitat Assessment
Memorandum acknowledge that the study area includes not only Essential Fish Habitat, but also
NMFS-designated Habitat Areas of Particular Concern for the snapper-grouper complex. 179
Habitat Areas of Particular Concern are discrete subsets of Essential Fish Habitat that provide

176
Calyx Engineers + Consultants, Essential Fish Habitat Assessment for the Proposed Cape Fear Crossing Project
in New Hanover and Brunswick Counties; TIP Project U-4738 [hereinafter EFHA Memo] (Aug. 15, 2017).
177
EFHA Memo at 1.
178
See Attachment 48, produced from NOAA Essential Fish Habitat Mapper at
https://www.fisheries.noaa.gov/resource/map/essential-fish-habitat-mapper.
179
See map of Snapper-Grouper Complex Habitat Areas of Particular Concern, Attachment 48, p. 3.
May 17, 2019
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extremely important ecological functions or are especially vulnerable to degradation. 50 C.F.R. §
600.815(a)(8). Habitat Areas of Particular Concern should be taken into account when
considering the conservation needs of a species and the impacts of a project upon it.

The documents also fail to discuss what the habitat needs are for species in the area or
what effect bridge pilings and construction will have on these habitat needs. Id. Instead, the
Essential Fish Habitat Assessment Memorandum merely concludes that these piles are small in
comparison to the size of the identified waterbodies and their water column, so their impacts will
be “minimal.” Id. at 2 This conclusion is flawed because, as discussed above, the Essential Fish
Habitat includes not only the main rivers identified as water bodies in the Memorandum, but also
smaller abutting streams and wetlands. The impact of the project may be quite large in relation
to these smaller areas. The DEIS is even more conclusory. It does not make this size
comparison and instead simply states that no substantial impacts to EFH are anticipated. Both
documents state that best management practices will be implemented, but fail to state what those
practices are or where applicable guidelines can be found. Both documents additionally fail to
analyze or discuss any indirect or cumulative impacts to the Essential Fish Habitat Areas.

Both documents also state that NCDOT will provide compensatory mitigation if the
chosen alternative results in fill impacts to coastal marsh. As the project currently stands,
however, all of the alternatives being considered would result in such fill impacts—but the DEIS
fails to provide any DSA-specific impacts or mitigation analysis to help inform the selection of a
preferred alternative. Moreover, it is unclear how the loss of “essential” habitat could possibly be
compensated with habitat of unknown quality at an unknown location. This superficial and
wholly inadequate discussion and lack of information evidences that NCDOT has failed to fulfill
its NEPA obligation to consider the impacts of this project on these protected habitat areas.

Furthermore, FHWA is required under the Magnuson-Stevens Fisheries Conservation Act


to “consult with [NMFS] with respect to any action authorized, funded, or undertaken, or
proposed to be authorized, funded, or undertaken . . . that may adversely affect
any essential fish habitat.” 16 U.S.C. § 1855(b)(2). No mention of consultation has been made
in the DEIS, and FHWA has failed to comply with this statutory requirement. FHWA must
undertake this required consultation and actually evaluate the impacts to Essential Fish Habitat
before reaching conclusions on the extent of those impacts.

3. Failure to Acknowledge and Analyze Impacts to Venus Flytraps

Neither the DEIS nor the supporting Natural Resources Technical Report make any
mention of Venus flytraps (Dionaea muscipula), which are endemic to the study area, protected
under state law, and may be detrimentally impacted by the project. See 2 N.C. Admin. Code. 48F
.0301. Furthermore, Venus flytraps are currently being considered for federal listing as an
May 17, 2019
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endangered or threatened species and thus may become subject to federal ESA protections before
NCDOT completes its environmental analyses of the project.

Venus flytraps are one of the most unique and widely recognized carnivorous plant
species in the world, and are the official state carnivorous plant of North Carolina. N.C. Gen.
Stat. § 145-22. They are the only terrestrial plant known to have evolved rapidly closing snap
traps. 180 Despite this wide recognition, the Venus flytrap is extremely limited in its geographic
range. It is endemic only in the Carolina coastal plain with most sites within 90 km of
Wilmington, NC. 181 This range until recently extended from Beaufort County, NC, to
Charleston County, SC, but the species has now been extirpated in the wild south of Horry
County, SC. 182

Venus flytraps are listed as a protected plant species in North Carolina, with a listing
status of “Special Concern, Vulnerable.” 2 N.C. Admin. Code. 48F .0301. They are threatened
by the dramatic loss, degradation, and fragmentation of their habitat, as well as exploitation for
commercial purposes. 183 Venus flytraps’ popularity has long made them susceptible to poaching
from the wild. To address this, in 2014 the North Carolina legislature made the taking of Venus
flytraps from private or public land without a permit a Class H felony. Venus flytraps are also
listed under Appendix II to the Convention on International Trade in Endangered Species,
requiring permits for their export. 50 C.F.R. § 24.12. Despite these anti-poaching measures,
Venus flytrap populations have continued to dwindle due to drastic changes in their habitat as a
result of fire suppression, various agricultural practices, and residential or commercial
development which may involve logging, bedding, ditching, and draining. 184 In October 2016, a
large group of highly regarded botanists from universities across the country petitioned the U.S.
Fish and Wildlife Service to list the Venus flytrap as endangered. 185 In December 2017, USFWS
determined the petition presented sufficient information to warrant further review of the species’

180
Waller, et al., Petition to List the Venus Flytrap (Dionaea muscipula Ellis) as Endangered Under the 1973
Endangered Species Act (Oct. 21, 2016) [hereinafter Listing Petition], Attachment 49.
181
See Listing Petition, supra note 180, at 7.
182
U.S. Fish and Wildlife Service, Venus Flytrap: Under Endangered Species Act Review (June 2017),
https://www.fws.gov/southeast/pdf/fact-sheet/venus-flytrap.pdf., Attachment 50. The species has also been
extirpated from Lenoir, Moore, and Robeson Counties in North Carolina. Id.
183
See Listing Petition, supra note 180, at 7, 18-19, 27-30; see also “90-Day Findings for Five Species,” 82 Fed.
Reg. 60362, 60363 (Dec. 20, 2017).
184
See U.S. Fish and Wildlife Service, supra note 182.
185
Listing Petition, supra note 180, see also U.S. Environmental Protection Agency eRulemaking Program, Docket
Folder Summary: Petition to List the Venus Flytrap (Dionaea muscipula Ellis) as Threatened or Endangered Under
the Endangered Species Act, REGULATIONS.GOV, https://www.regulations.gov/docket?D=FWS-R4-ES-2017-0041
(last visited May 16, 2019).
May 17, 2019
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status, 186 and as such, the Venus flytrap is currently under consideration for listing under the
federal Endangered Species Act. 187

Venus flytraps are habitat specialists that are adapted to very specific conditions in which
they have an advantage over non-carnivorous plants. Thus, they are highly dependent on the
limited habitat types in which they are known to grow. The species inhabits flat, damp to wet,
and open to semi-open habitats in the coastal plains of southeast North Carolina and a small area
in northeastern South Carolina, usually on sandy nitrogen- and phosphorus-poor substrates of
low pH, such as bogs, pocosins, and wet savannas. 188 In the lower Coastal Plain of North
Carolina, most plants occur in wet longleaf pine savannas or wet pine flatwoods. They are also
occasionally found in the transitional habitat between Carolina bays and adjacent plant
communities. In the middle and upper Coastal Plain they occur on the narrow transitional
habitats around Carolina Bays, streamhead pocosins (linear, evergreen shrub bogs along small
creeks and their headwaters), and sandhill seeps. The Venus flytrap is extremely sensitive to
small changes in moisture conditions, and its growth is dependent on micro-topography as well
as overall soil conditions. 189

Many of the terrestrial communities and wetlands in the study area are classified as
habitat types that are suitable to Venus flytraps. 190 Half of all known Venus flytrap populations
have disappeared over the last 60 years, and only 16% of those remaining in the wild are
considered to have minimum viable population numbers. 191 Furthermore, data from the North
Carolina Natural Heritage Program shows that as of 2015, one of the few, if not the only,
remaining healthy populations in the Wilmington area occurs near the Cape Fear Memorial
Bridge. 192 Considering that habitat loss and degradation represents the greatest threat to the
species, it is imperative that NCDOT takes the Venus flytrap into consideration in its DEIS,
documenting where it occurs in the study area, and analyzing the potential impacts of the project
on it. Likewise, given that the species may be listed in the future in light of USFWS’s ongoing
review, NCDOT should have included impacts to the Venus flytrap in its DEIS, and must do so
in any FEIS for the project.

D. Harmful Impacts to Endangered Species and Their Habitat

186
“90-Day Findings for Five Species,” 82 Fed. Reg. 60362, 60363 (Dec. 20, 2017).
187
This listing decision should be expected soon, since FWS is legally required to make such a decision “[w]ithin 12
months after receiving a petition that is found under subparagraph to present substantial information indicating that
the petitioned action may be warranted.” 16 U.S.C. § 1533 §(b)(3)(B).
188
Listing Petition, supra note 180.
189
For example, where conditions are dryer, flytraps will grow in wetter ruts, but where conditions are wetter,
flytraps will grow in drier soils adjacent to, but not in, the ruts. See Petition at 12.
190
Natural Resources Technical Report at 14-15 (terrestrial communities), 18-22 (wetlands).
191
Listing Petition, supra note 180, at 20-21.
192
See Listing Petition, supra note 180, at 20.
May 17, 2019
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Under section 7 of the Endangered Species Act (“ESA”), federal agencies must consult
with the U.S. Fish and Wildlife Service (“USFWS”) or NMFS to ensure that “any action
authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the destruction or adverse
modification of habitat of such species which is determined . . . to be critical.” 16 U.S.C. §
1536(a)(2). Agencies are expected to concurrently comply with both section 7 of the ESA and
NEPA. See; 50 C.F.R. § 402.06 (“Consultation, conference, and biological assessment
procedures under section 7 may be consolidated with interagency cooperation procedures
required by other statutes, such as the National Environmental Policy Act (NEPA).”); see also
Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006) (“If the wildlife service
determines that listed species may be present in the affected area, the agency preparing to act
must produce a “biological assessment” in accordance with the National Environmental Policy
Act for the purpose of identifying any endangered species or threatened species which is likely to
be affected by such action.”).

Here, NCDOT has failed entirely to adequately document and review likely impacts to
endangered species. It has provided no information or assessment to support its biological
conclusions for listed species and has failed to meet the requirements of both the ESA and
NEPA. As an initial matter, NCDOT should have completed surveys for all endangered and
threatened species likely to be found in the project area. NCDOT only did very limited surveys
for red-cockaded woodpeckers, and failed to conduct any surveys for endangered and threatened
aquatic species. This omission is particularly egregious in the case of endangered Atlantic
sturgeon, for which the Cape Fear River is designated as critical habitat.

1. Nonexistent Analysis of Endangered Sturgeon and Critical Habitat

The endangered Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) is a prehistoric fish


that can reach 14 feet in length and live up to 60 years, returning periodically to its natal streams
to spawn. 193 The endangered shortnose sturgeon (Acipenser brevirostrum) is smaller, reaching
only up to 4.5 feet in length and living up to 30 years. 194 As anadromous species, both species of
sturgeon are dependent upon rivers and estuaries for the critical life stages of reproduction and
early juvenile development. 195 Atlantic sturgeon, however, tend to spend more of their adult
lives in the ocean, while shortnose sturgeon largely remain in estuaries and do not stray far from
the shoreline in marine waters. 196 Historically, Atlantic sturgeon were present in 38 rivers along

193
Proposed Listings for Two Distinct Population Segments of Atlantic Sturgeon in the Southeast as Endangered
under the ESA, 75 Fed. Reg. 61904, 61905 (Oct. 6, 2010).
194
Shortnose Sturgeon: Overview, NOAA Fisheries Species Directory, U.S. Department of Commerce,
https://www.fisheries.noaa.gov/species/shortnose-sturgeon (last visited May 16, 2019)(“NOAA Species Directory”),
Attachment 51.
195
75 Fed. Reg. at 61905.
196
NOAA Species Directory, supra note 194.
May 17, 2019
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the Eastern seaboard, ranging from Labrador south to the St. Johns River in Florida. 197 In the
past, sturgeon thrived with large populations in many of these rivers along the Atlantic coastline,
but by the early 1800s, both Atlantic and shortnose sturgeon had dwindled to a fraction of their
previous levels due to overfishing. 198 Despite this, in the late 1800s, the Cape Fear River had the
largest landings of both Atlantic and shortnose sturgeon in the United States. 199

Prior to the collapse of the sturgeon fishery, southeastern rivers were estimated to support
tens of thousands of sturgeon. 200 In 1998, the Atlantic States Marine Fisheries Commission
(“ASMFC”) shut down the entire coast to Atlantic sturgeon fishing, with stock assessments
indicating that only “remnant populations” remained along the East Coast. Despite this decades-
long fishing moratorium, and the absence of a modern shortnose sturgeon fishery, both species of
sturgeon continue to suffer negative impacts from a range of factors throughout their habitat.

The shortnose sturgeon was listed as federally endangered on March 11, 1967. 201 On
February 6, 2012, NMFS listed four distinct population segments (“DPSs”) of the Atlantic
sturgeon as endangered and one DPS as threatened under the Endangered Species Act. 202 In
particular, the Carolina DPS was designated as endangered, and encompasses Atlantic sturgeon
found within the Cape Fear and Brunswick Rivers (considered to be a tributary of the Cape
Fear).

On August 17, 2017, NMFS finalized critical habitat designations for each Atlantic
sturgeon DPS. 203 In the critical habitat designation, NMFS concluded that “each of these DPSs
is at a low level of abundance and that successful reproduction and recruitment, which are
essential to the conservation of the species, occur in a limited number of rivers for each DPS.” 204
The critical habitat designation for the Carolina DPS includes the Cape Fear River System,
which includes both the Cape Fear River and Northeast Cape Fear River. 205 Both the Cape Fear
River and Northeast Cape Fear River are identified as important spawning rivers for Atlantic
sturgeon, meaning that both juvenile and adult sturgeon are present in the rivers at different times
of the year. NMFS’s Atlantic sturgeon critical habitat designation also identified certain physical

197
75 Fed. Reg. at 61906. See also Eric J. Hilton et al. Review of the Biology, Fisheries, and Conservation Status of
Atlantic Sturgeon, 32 J. Appl. Ichthyol. 30, 32 (2016), Attachment 52.
198
Hilton et al., supra note 197, at 32-33.
199
89 Fed. Reg. at 39221.
200
Threatened and Endangered Status for Distinct Population Segments of Atlantic Sturgeon in the Northeast
Region, 77 Fed. Reg. 5880, 5882 (Feb. 6, 2012). See also Hilton et al., supra note 197, at 47 (noting that U.S.
records from 1890 show over 3200 metric tons of Atlantic sturgeon were harvested).
201
32 Fed. Reg. 4001 (March 11, 1967).
202
77 Fed. Reg. at 5880; 77 Fed. Reg. at 5914
203
Designation of Critical Habitat for the Endangered New York Bight, Chesapeake Bay, Carolina, and South
Atlantic Distinct Population Segments of Atlantic Sturgeon and the Threatened Gulf of Main Distinct Population of
Atlantic Sturgeon, 82 Fed. Reg. 39160 (Aug. 17, 2017).
204
Id. at 39161.
205
Id. at 39221-39222.
May 17, 2019
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or biological features (“PBFs”) that are “essential to the conservation of the [Atlantic sturgeon]
and that may require special management considerations or protection.” 82 Fed. Reg. 39,217.
NMFS explained that “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 39,219.

Both endangered Atlantic sturgeon and endangered shortnose sturgeon are present in the
study area, and suitable habitat for both species also exists in the study area, including in the
Cape Fear River, Brunswick River, and Alligator Creek. This includes designated Critical
Habitat for Atlantic sturgeon in the Cape Fear River, as well as habitat on both sides of the
Brunswick River that is identified by the N.C. Marine Fisheries Commission as Primary Nursery
Areas.

The DEIS indicates that NCDOT reached a biological conclusion of “May Affect-Not
Likely to Adversely Affect” for both of these species. However, the DEIS includes absolutely
no discussion of the project’s impacts on these species and no rationale of how these conclusions
were reached. The DEIS Section on “Environmental Consequences” only notes that suitable
habitat for each of these species is present in the study area. It does not provide any detailed
discussion of designated critical habitat, nursery areas, or conservation considerations that arise
from these designations.

As for population numbers, the DEIS provides no discussion of population trends or


efforts made to survey the study area for these species. Instead, it only states that as of August
2017, the most recent occurrence entry on the North Carolina Natural Heritage Program Data
Explorer for Atlantic sturgeon was in 2012, and for shortnose sturgeon was in 1993. NCDOT
has made no effort to actually survey the project area and obtain up-to-date information about
these endangered species. Agencies may not rely on stale data in their NEPA analyses. See,
e.g., N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1086-87 (9th Cir. 2011)
(holding that agency failed to meet NEPA’s “hard look” requirement where it “relied on stale
data during the [EIS] analysis…and failed to properly update the data with additional studies and
surveys”). NCDOT has an obligation to obtain up-to-date information on the populations that
would be impacted by the proposed project so that it can accurately analyze the impacts to those
populations. It has not done so here.

The staleness of NCDOT’s occurrence data is made blatant by the fact that NMFS’s
critical habitat designation for the Atlantic sturgeon included a lengthy discussion of telemetry
studies of sturgeon done in the Cape Fear River since 2013, after the last NCNHP reported
occurrence. 206 In fact, studies since 2015 have reported Atlantic sturgeon further upstream in the
Cape Fear than Lock and Dam #1, which is more than 25 miles northwest of the Cape Fear

206
Id.
May 17, 2019
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Memorial Bridge by land (and even further by river). Not only do these studies post-date the
2012 occurrence, but they provide enlightening information on the extreme importance of the
Cape Fear River to Atlantic sturgeon. For example, the text accompanying the 2017 Critical
Habitat designation for Atlantic sturgeon reported:

The high inter-annual return rates of tagged fish to the system demonstrate that
Atlantic sturgeon have fidelity to these rivers; this implies that the Cape Fear
River system may be the natal system for these fish (Loeffler and Collier in Post
et al., 2014).

82 Fed. Reg. at 39,222. The Critical Habitat designation concluded that “that both the Northeast
Cape Fear and Cape Fear Rivers may be important spawning areas.” Id.

Rather than evaluating or describing projected impacts to the sturgeon, the DEIS states
that the Transportation Agencies will coordinate with USFWS to determine whether formal
consultation is required under section 7 of the Endangered Species Act, 16 U.S.C. §§ 1531 et
seq. DEIS at 4-47. 207 This instills little confidence since the appropriate consulting agency for
marine species such as sturgeon is NMFS, not USFWS.

A host of likely harmful impacts could result against 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 and induced land changes, and temporary or permanent changes in water flow. 208
These impacts must be disclosed by NCDOT in its DEIS and any biological analyses it
undertakes for ESA purposes.

2. Insufficient Review of Impacts to Endangered Red-Cockaded Woodpeckers

For the red-cockaded woodpecker (Picoides borealis), the DEIS explains that suitable
foraging and nesting/roosting habitat in the form of open, mature stands of longleaf pine is
present throughout the study area. However, NCDOT reached a biological conclusion of “May
Affect, Not Likely to Adversely Affect” for the species. 209 This conclusion was based on ground
and aerial surveys conducted in March 2014, 210 followed by a foraging habitat analysis for one

207
See also DEIS at xiii (14/1009) (again claiming sturgeon consultation will occur with USFWS, not NMFS).
208
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.”).
209
DEIS at 4-51.
210
NCDOT, Updated Red-Cockaded Woodpecker Aerial and Ground Survey Report, Cape Fear Crossing,
Brunswick and New Hanover Counties, North Carolina, STIP Number U-4738 (Nov. 2015).
May 17, 2019
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cluster, Brunswick Cluster 1 or BRU 1, in July 2018. 211 Eleven cavity trees were identified and
evaluated in the cluster in 2014, but only nine were evaluated in 2018. At the time that the 2018
surveys were conducted, however, all suitable cavities appeared to be inactive. This inactive
status appears to be the primary rationale behind NCDOT’s biological conclusion. 212 Given the
tendency for cavities and clusters to oscillate between stages of activity, 213 and given that
construction on this project could not be expected to commence any sooner than 2021, it is
imperative that NCDOT undertake additional red-cockaded woodpecker population surveys
throughout the study area (including a one mile radius) and additional foraging habitat analyses
at potentially active cluster sites to ensure that this project does not result in section 9 takings
prohibited by the Endangered Species Act.

As an initial matter, the impacts examined in the DEIS should not be limited only to
direct take and loss of current nest cavities as NCDOT has done here. NCDOT has so far
completely failed to consider indirect and cumulative impacts to red-cockaded woodpeckers.
Other nesting and foraging habitats and active clusters are present throughout and adjacent to the
study area. Even if an area of suitable habitat is not currently being used by nesting
woodpeckers, the destruction of that habitat further contributes to the fragmentation and isolation
of other woodpecker populations nearby. 214 The current limited and isolated state of the BRU-1
cluster is the result of indirect and cumulative effects from rapid development in the surrounding
area. The cumulative effects of building a bridge in an area that has already been subjected to
rapid habitat changes provide more reason FWS to consider these impacts seriously, not less. It
is imperative that these issues are analyzed and discussed fully in the DEIS before NCDOT can
make conclusions on effects to the species.

Additionally, further surveys and analyses should be undertaken because the Biological
Conclusion was based on an analysis of habitat that has since undergone potentially significant
alterations. Though the foraging habitat analysis for BRU 1 was published in September 2018,
the ground studies were conducted in July 2018—prior to Hurricane Florence’s destructive
landfall in the area. This analysis concluded that the cluster “meets the [Regional Standard for
Managed Stability (RSMS)] Guidelines (Carter 2012) post-project, assuming that potentially
suitable habitat is made suitable” (emphasis in original). This habitat had the necessary pine

211
NCDOT, Red-Cockaded Woodpecker Foraging Habitat Analysis Report, Cape Fear Crossing, Brunswick and
New Hanover Counties, North Carolina, STIP Number U-4738 [hereinafter FHA] (Sep. 20, 2018).
212
DEIS at 4-51.
213
Inactive clusters are important to maintaining extant populations of RCWs and may provide a short-term
opportunity to enhance habitat available to RCWs, and thus increase the number of groups in populations. See
Doerr, P. D., J. R. Walters and J. H. Carter, III. 1989, Attachment 53. Reoccupation of abandoned clusters of cavity
trees (colonies) by red-cockaded woodpeckers. Proceedings of the Annual Conference of the Southeastern
Association of Fish and Wildlife Agencies 43:326-336.
214
For example, “Military Ocean Terminal Sunny Point, located approximately 10 miles (mi.) south of the survey
area, is listed as a Significant RCW Support Population for the Mid-Atlantic Coastal Plain Recovery Unit (US Fish
and Wildlife Service (USFWS) 2003).” FHA at 5.
May 17, 2019
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basal area but exceeded the limits for pine basal area in certain dbh (tree diameter at breast
height) classes, hardwood midstory density/height and/or overstory hardwood density. Thus
these stands could be altered from “potentially suitable” to “suitable” by midstory removal,
prescribed burning, and/or thinning. The analysis went on to conclude that this habitat would
likely never be made suitable because it is on private property. However, these surveys were
conducted months before Hurricane Florence made landfall and felled trees throughout
Brunswick County. 215 It is very possible that the stand composition has changed as a result of
this, and further surveys should be conducted to determine if a larger proportion of BRU 1 is
now “suitable habitat.”

Presumably, if potentially suitable habitat is not made suitable then the partition will not
meet the RSMS Guidelines post-project. If the RSMS standards are not maintained, then the
project could result in incidental take. 216 Based on the DEIS, ability of the habitat area to meet
the RSMS standards appeared to play no role at all in NCDOT’s biological conclusion. Rather,
the biological conclusion and limited statement of impacts in the DEIS seems to be based only
on the foraging habitat analysis report’s findings that: (1) there is only one suitable cavity in the
cluster, which is currently inactive, and (2) none of the nine currently identified cavity trees will
be directly removed. The DEIS must explain the significance of the foraging habitat analysis
and whether or not habitat will meet RSMS guidelines after the project. Even if it appears that
the cluster is currently inactive, this does not give NCDOT and FHWA legal cause to assume
permanent abandonment within this red-cockaded woodpecker recovery area. Thus, the DEIS
must still explain and consider impacts to foraging habitat, rather than assuming their
insignificance.

Finally, even if foraging habitat is maintained post-project and the RSMS standards are
met, the project could still result in incidental take through harassment, for example by
disturbing the cluster during nesting season or disrupting foraging activity due to nearby
construction or road activity. 217 The DEIS fails to discuss or analyze any potential for incidental
take caused by harassment, presumably because it relies on the assumption that all nest cavities
are inactive. This does not, however, address whether woodpeckers nesting beyond the half-mile
survey radius use this foraging habitat for feeding. If so, then these birds may be impacted by
the construction and loss of habitat. These issues need to be discussed in the DEIS, and further
surveys need to be conducted if necessary.

215
FHA at 7.
216
See U.S. Fish and Wildlife Service, Recovery Plan for the Red-cockaded Woodpecker (Picoides borealis) Second
Revision (Jan. 2003), at 187 (“If a private landowner follows the standard for managed stability, the U.S. Fish and
Wildlife Service will not recommend that the landowner needs, or applies for, an incidental take permit, based on
the amount of foraging habitat remaining post-project. However, other project-related impacts, for instance,
disturbance in the cluster during the nesting season, may require an incidental take permit.”), Attachment 54.
217
Id.
May 17, 2019
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E. The DEIS Contains an Insufficient and Inaccurate Analysis of Air Quality.

Like many aspects of the DEIS, NCDOT’s cursory analysis of air quality suffers from
insufficient information. While the Air Quality Report documents the relevant Clean Air Act
(“CAA”) standards and suggests that this project would not lead to violations of those standards,
the Report fails to provide a complete analysis of how the project might affect the quality of air
for those living and working in the project area. Worse still, the analysis relies on outdated
regulatory information.

1. Unacknowledged Harmful Increases in Ambient Pollution

Pollutants from cars include harmful carbon monoxide (“CO”), nitrogen oxides (“NOx”),
and volatile organic compounds (“VOCs”). 218 In turn, NOx and VOCs emissions are precursors
to ozone, which is associated with a variety of detrimental human health and ecological
effects. 219 NOx are also a precursor to nitrogen dioxide (“NO2”). The CAA regulates certain air
pollutants, called “criteria pollutants”, including CO, NO2, and ozone, through National Ambient
Air Quality Standards (“NAAQS”). Attainment of these NAAQs is assessed on a region-by-
region basis.

The DEIS and accompanying Air Quality Report fail to document the deleterious effects
associated with any of the criteria pollutants. In particular, the Air Quality Report fails to discuss
future criteria pollutants levels because the project would be “in an attainment area,” and “[t]he
proposed project is not anticipated to create any adverse effects on the air quality of this
attainment area.” 220 NCDOT does not provide any support for this claim. The claim is
particularly questionable given the project’s alleged purpose of enhancing freight mobility—
suggesting that an increase in industrial truck traffic, and a corresponding increase in pollution,
would be likely with the project. Indeed, localized ozone levels would almost certainly increase
along the new bridge and highway. Given the smog-causing nature of ozone, as well as its severe
impacts on human health, the Air Quality Report needs to provide more information about the
Cape Fear Crossing project’s impacts on ozone and other criteria pollutants, and not just the
current attainment status of the affected region.

2. Outdated Mobile Source Air Toxics Assumptions

218
EPA, Transportation, Air Pollution, and Climate Change , https://www.epa.gov/transportation-air-pollution-and-
climate-change (last updated Apr. 20, 2019), Attachment 55; EPA, Greenhouse Gas Emissions: Transportation
Sector Emissions, http://www3.epa.gov/climatechange/ghgemissions/sources/transportation.html (last updated Apr.
29, 2019), Attachment 56.
219
EPA, Ground-Level Ozone Pollution, https://www.epa.gov/ground-level-ozone-pollution / (last updated Nov. 7,
2018), Attachment 57.
220
Air Quality Report at 3.
May 17, 2019
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The CAA authorizes EPA to regulate emissions of toxic air pollutants emitted by motor
vehicles that are associated with significant adverse health effects, known as mobile source air
toxics (“MSATs”). 42 U.S.C. § 7521(a)(1). The Air Quality Report reviews the Cape Fear
Crossing project’s possible increases in MSATs in a cursory, qualitative fashion, and the Report
fails to then explain the corresponding health impacts from such an increase in tail pipe
pollution. MSATs include chemical compounds such as benzene, 1,3-butadiene, formaldehyde,
acetaldehyde, polycyclic organic matter (“POM”), naphthalene, and diesel particulate matter. 221
MSATs can cause cancer and a variety of harmful health effects, including respiratory,
neurological, cardiovascular, liver, and kidney effects. 222

The DEIS acknowledges that with each alternative, “there may be localized areas where
VMT [vehicle miles traveled] would increase, and other areas where VMT would decrease,” and
therefore “it is possible that localized increases and decreases in MSAT emissions may
occur.” 223 The DEIS and the accompanying technical report conclude that “even if these
increases do occur, they too will be substantially reduced in the future due to implementation of
EPA’s vehicle and fuel regulations.” 224 This conclusion is based on the finding that “even if
VMT increases by 45 percent from 2010 to 2050 as forecast, a combined reduction of 91 percent
in the total annual emissions for the priority MSAT is projected for the same time period.” 225

This claim is misleading and inaccurate.

As an initial matter, the estimated 45 percent increase in VMT and 91 percent reduction
in total annual emissions is not specific to the project area and is instead based on national
data. 226 NCDOT does not appear to have attempted to actually model the localized MSAT
impacts in anyway. This optimistic analysis fails to provide the basis for a meaningful
assessment of the DSAs’ environmental impacts, as required by NEPA. The DEIS should
catalogue the schools, hospitals, public parks and other locations in the project area where
sensitive populations would likely suffer exposure to MSATs generated by the toll road.

Though neither the DEIS nor the Community Impact Assessment currently discusses the
location of vulnerable community resources such as schools relative to the proposed highway,
the Community Context Diagrams in Appendix C of the Assessment indicate the presence of
several schools in the vicinity of each alternative. North Brunswick High, New Jerusalem
Christian Academy, Leland Christian Academy, and Belville Elementary are all located in close
221
EPA, Gasoline Mobile Source Air Toxics, https://www.epa.gov/gasoline-standards/gasoline-mobile-source-air-
toxics (last updated Dec. 5, 2015), Attachment 58.
222
See, e.g., EPA, How Mobile Source Pollution Affects Your Health, https://www.epa.gov/mobile-source-
pollution/how-mobile-source-pollution-affects-your-health#smog (last updated Dec. 15, 2015), Attachment 59.
223
DEIS at 4-25; Air Quality Report at 10.
224
DEIS at 4-25; Air Quality Report at 10.
225
DEIS at 4-26; Air Quality Report at 5.
226
Air Quality Report at 7.
May 17, 2019
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proximity to Alternative V-AW. 227 Isaac M Bear High and JC Roe Elementary School are
practically within the right of way for alternatives B, T, and N-A, and Alternative M-A would
pass close to the Coastal Christian High School and Pine Valley Elementary. 228 The Community
Context Diagrams also reveal the presence of several communities of elderly individuals, who
are particularly vulnerable to MSAT exposure, in the study area. For example, Alternatives B
and T cut through Brunswick Forest, a large retirement community in Leland. 229

The DEIS should estimate the likely emissions exposures at these and other important
community locations—such daycare centers—using accepted testing methods, relate these
estimates to findings in contemporary, peer-reviewed health studies of MSAT exposures, and
discuss specific mitigation measures that could safeguard the identified sensitive populations.
Finally, the DEIS should compare these dollar and human health costs with those associated with
a plausible alternative that does not involve a new-location road and bridge, such as upgrades to
existing highways, transit, and TDM and TSM strategies in the study area.

Even worse, however, the DEIS and Air Quality Report completely omit the fact that
EPA has proposed to roll back the standards upon which the Air Quality Report’s optimistic
national projections are based, making the analysis even more invalid.

NCDOT relied on emissions projections for MSATs and climate-changing CO2 that
anticipate future, tighter standards as proposed under the Obama Administration. Such
projections note that as cars are set to become more efficient, there would be an overall reduction
of emissions over time. This was the premise of the EPA’s MOVES2014 models, which
NCDOT used for its Cape Fear Crossing Air Quality Report. The MOVES2014 models
specifically projected future car emissions levels based on the 2012 CAFE and CO2 standards. 230

As of August 2018, however, the MOVES2014 models—and documents relying on the


models—will be rendered obsolete and inaccurate under proposals from the National Highway
Traffic Safety Administration (“NHTSA”) and Environmental Protection Agency (“EPA”). Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and
Light Trucks, 83 Fed. Reg. 42,986, 42,986 (Aug. 24, 2018) (to be codified at 49 C.F.R. pt. 523,
531, 533, 536, 537, 40 C.F.R. pt. 85, 86). The proposals would reverse course on the current
Clean Car Rules, which were crafted to reduce greenhouse gas emissions and increase fuel
efficiency, and would result in dramatic changes to projections of future greenhouse gas
emissions and other air quality concerns. The current standards, which were finalized in 2012,

227
Community Impact Assessment at App. C. Alternative V-AW is identified as “V-A” on the community context
diagram.
228
Id.
229
Id.; see Community Impact Assessment at 17.
230
Official Release of the MOVES2014 Motor Vehicle Emissions Model for SIPs and Transportation Conformity,
79 Fed. Reg. 60,343, 60,344 (Oct. 7, 2014).
May 17, 2019
Page 54
were estimated “to save approximately 4 billion barrels of oil and to reduce GHG emissions by
the equivalent of approximately 2 billion metric tons over the lifetimes of these light duty
vehicles produced in MYs 2017-2025.” 231 By contrast, the NHTSA and EPA current proposals
would result in an increase in petroleum consumption of .5 million barrels per day by the early
2030s 232—in other words, a substantial increase in likely dirty tailpipe emissions and greenhouse
gas emissions anticipated based on the current standards. 233

In addition to the erroneous assumptions about future car emissions, NCDOT completed
only a qualitative analysis for project-specific impacts for MSATs. As explained in the Air
Quality Report, FHWA requires only a qualitative analysis for “projects with low potential
MSAT effects.” 234 FHWA lists as examples of such projects “minor widening projects; new
interchanges, replacing a signalized intersection on a surface street; and projects where design
year traffic is projected to be less than 140,000 to 150,000 annual average daily traffic
(AADT).” 235 By contrast, projects with higher potential MSAT effects, which then necessitate a
quantitative MSAT analysis, include projects that would “[c]reate or significantly alter a major
intermodal freight facility that has the potential to concentrate high levels of diesel PM in a
single location, involving a significant number of diesel vehicles for new projects or
accommodating with a significant increase in the number of diesel vehicles for expansion
projects.” 236 In many ways, these distinctions seem arbitrary and an attempt by FHWA to avoid
conducting project-specific MSATs analyses. But even under this questionable categorizing of
projects, NCDOT should have completed a quantitative analysis.

Here, NCDOT determined that the Cape Fear Crossing project warranted merely a
qualitative analysis because “the project’s Design Year traffic ranges from 21,100 to 121,200
ADT.” NCDOT fails to acknowledge, however, that per the alleged purpose for the project to
enhance freight mobility, and the alleged need to improve port access, much of the new traffic
would likely be freight traffic—so likely diesel vehicles. The project would certainly “have the
potential to concentrate high levels of diesel PM” along the project’s route. As such, NCDOT
should have completed a quantitative, rather than quantitative analysis under FHWA’s own
guidelines given the likely freight impacts of this project.

3. No Review of Greenhouse Gas Emissions

231
77 Fed. Reg. 62,624, 62,627.
232
83 Fed. Reg. 42,986, 42,955.
233
In NHTSA’s and EPA’s announced proposals, the Agencies call into question several assumptions upon which
the current standards were based, ultimately concluding that the current standards are unreasonable and would result
in increased vehicle prices, which would in turn “keep consumers in older, dirtier, and less safe vehicles.” Thus, the
Agencies in essence state that regardless of the instant proposals, projections premised on current standards (and
employed in numerous existing NEPA documents) are fundamentally flawed and inaccurate.
234
Air Quality Report at 6.
235
Id.at 8.
236
Id. at 9.
May 17, 2019
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In the United States, the transportation sector and electricity sector are the two leading
contributors of greenhouse gas (“GHG”) emissions. 237 In North Carolina, the transportation
sector is the second leading contributor to GHG emissions, and poised to quickly become the
first. 238 Therefore “integrat[ing] climate change mitigation and adaptation” into NCDOT’s
operations requires a meaningful evaluation of the indirect impacts that projects like the Bridge
will have on sprawl, development, and transportation choices. Locking in carbon-intensive
infrastructure like the Bridge, which will accelerate development and sprawl and re-entrench a
culture reliant on personal vehicles, will make it increasingly difficult to reduce emissions in the
future. 239

Despite this fact, the DEIS and its corresponding Air Quality Analysis Report fail to
include any reference to possible impacts on GHGs. Courts have repeatedly held that an analysis
of GHG impacts must legally be part of the agencies’ “hard look” at environmental impacts
likely to result from the 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 Traffic Safety Admin., 538 F.3d 1172, 1223–24 (9th Cir. 2008) (holding NHTSA
was arbitrary and capricious when EA did not take a hard look at climate change impacts of
NHTSA Final Rule); High Country Conservation Advocates v. U.S. Forest Serv., 52 F. Supp. 3d
1174, 1189-1190 (D. Colo. 2014) (FEIS violated NEPA by failing to quantify costs associated
with GHG emissions from expanded mining operations); see also WildEarth Guardians v. Zinke,
No. 16-1724, 2019 WL 1273181, at *26 (D.D.C. March 19, 2019) (BLM violated NEPA by
failing to quantify GHG emissions that were reasonably foreseeable effects of oil and gas
development on public land).

State policy also dictates that NCDOT properly analyze GHG impacts from the Cape
Fear Crossing project. In recognition of the serious threat posed by climate change, North
Carolina Governor Roy Cooper issued Executive Order No. 80 (“the Executive Order”) on
October 29, 2018, which commits the state of North Carolina to address climate change. 240 The
Executive Order requires cabinet agencies, including NCDOT, to comply with several general
directives in assessing and addressing climate change. 241 Specifically, NCDOT must “evaluate
the impacts of climate change on agency programs and operations and integrate climate change

237
EPA, Fast Facts on Transportation Greenhouse Gas Emissions, https://www.epa.gov/greenvehicles/fast-facts-
transportation-greenhouse-gas-emissions (last updated Aug. 27, 2018)., Attachment 60.
238
NC DEQ, NC Greenhouse Gas Inventory 5 (Jan. 2019) https://files.nc.gov/ncdeq/climate-change/ghg-
inventory/GHG-Inventory-Report-FINAL.pdf, Attachment 61.
239
See UN Gap Report at 21-22, Attachment 13.
240
N.C. Executive Order 80 (Oct. 29, 2018), https://governor.nc.gov/documents/executive-order-no-80-north-
carolinas-commitment-address-climate-change-and-transition, Attachment 62.
241
Id. ¶ 2.
May 17, 2019
Page 56
mitigation and adaptation practices into their programs and operations.” 242 NCDOT is also
required to “integrate climate adaptation and resiliency into [its] policies, programs, and
operations.” 243

Furthermore, the Executive Order requires that NCDOT “evaluate the impacts of climate
change” upon the proposed Bridge, and “integrate climate adaptation and resiliency” into its
evaluation of alternatives under NEPA. Since the project would be located in an area of the state
that is particularly vulnerable to climate change, conformance with these requirements is critical.

Despite significant evidence that climate change will seriously impact the project,
NCDOT has failed to reevaluate the project based on up-to-date data regarding global warming,
sea level rise, and coastal flooding, and there is no mention of the Executive Order or recent
climate studies in the DEIS or Air Quality Report NEPA requires that agencies discuss “possible
conflicts between the proposed action and Federal, regional, State, and local land use plans,
policies and controls for the area involved.” 40 C.F.R. § 1502.16. NCDOT’s failure to evaluate
the impacts of climate change upon the project through consideration of current climate change
reports and data is at odds with the Executive Order and violates NEPA.

VI. THE DEIS FAILS TO PROVIDE AN ADEQUATE ANALYSIS OF COMMUNITY


AND PUBLIC INTEREST IMPACTS.

NCDOT relies on an inadequate and error-laden Community Impact Assessment to fulfil


its legal obligation to consider the “cultural, economic, social, [and] health [effects]” of each
alternative, 40 C.F.R. §§ 1508.8; 1508.25(c), and comply with Executive Order 12898. As an
initial matter, the Community Impact Assessment relies on demographic data contained in
Appendix B that is rife with glaring errors.

For example, the table NCDOT uses to describe the racial composition of the study area,
states that New Hanover County Block Group 2, Census Tract 113 is 102.6% non-white. 244 This
error is the result of NCDOT incorrectly stating that there are 207 Native Hawaiian/Pacific
Islanders in this Census Block, when in fact the U.S. Census Bureau 2009-2013 5-Year
American Community Survey that NCDOT’s table cites to states that there are 20 people
identifying as Native Hawaiian and Other Pacific Islander in the Census Block. 245 NCDOT’s
table includes two additional block groups with 207 native Hawaiian/pacific islanders in three
separate Census Tracts—Brunswick County Block Group 3 Census Tract 201.04, and New
Hanover Block Group 1, Census Tract 113. However, the original Census data indicates New
Hanover Block Group 1, Census Tract 113 does not have any people identifying as Native
242
Id.
243
Id. ¶ 9.
244
Community Impact Assessment at App. B.
245
U.S. Census Bureau, American FactFinder, B02001 New Hanover County at 15, Attachment 63.
May 17, 2019
Page 57
Hawaiian or Other Pacific Islander. The only block group analyzed that actually is home to 207
people identifying as Native Hawaiian/Pacific Islanders according to the 2013 Census data is
Brunswick County Block Group 3, Census Tract 201.04. 246 This mistake could have skewed
NCDOT’s determination of which Block Groups qualify as environmental justice
communities. 247

NCDOT’s table detailing the number of zero-car households in the study area also
contains several errors. As an initial matter, NCDOT states that the source for the data is the
American Community Survey 5-year Estimates (2009-2013) “Household Size by Vehicles
Available.” 248 The data NCDOT references in their Community Impact Assessment actually
comes from the U.S. Census Bureau’s data for “Tenure by Vehicles Available.” 249
Additionally, NCDOT has incorrectly transcribed some of the data contained in “Tenure by
Vehicles Available”. For example, NCDOT’s table indicates that 84 out of 169 total households
(49.7%) in New Hanover County, Block Group 2, Census Tract 120.08 have no vehicles
available. 250 However, US Census Table B25044 indicates that this Block Group has 1,153
households, and only 28 of them have no vehicle available. 251 It appears that NCDOT mis-
assigned some of the data from Block Group 1, Census Tract 110 to Block Group 2, Census
Tract 120.08. 252 Block Group 1, Census Tract 110 is a predominantly minority (80.5%), low-
income community located near some of the DSAs—which means that this minority, low-
income community is actually the one with a large proportion of zero-car households. 253
Therefore NCDOT’s error minimized the appearance of impacts to an environmental justice
community that would be affected by destruction of pedestrian and bicycle resources.
Furthermore, this error suggests that NCDOT may not have a clear understanding of the location
of communities with a high percentage of zero-car households who would therefore have their
mobility most impacted by the project.

NCDOT’s wide-spread misuse of data to support its error-laden Community Impacts


Analysis fails to accurately describe the communities in the study area, and in turn, fails to fully
and properly analyze impacts of the proposed project on these communities. Furthermore,
instead of taking a “hard look” at these impacts the Community Impact Assessment was
supposed to help identify, NCDOT turned a blind eye on impacts to low-income and minority

246
U.S. Census Bureau, American Fact Finder, B02001 Brunswick County at 4. Attachment 64.
247
See Community Impact Assessment at 57.
248
Community Impact Assessment at App. B.
249
Id.
250
Community Impact Assessment at App. B. Using the term “households” here for ease of understanding, but
technically B25044 shows “occupied housing units.”
251
US Census Bureau, American FactFinder, B25044 at 37, Attachment 65.
252
See id. at 12, Attachment 65.
253
U.S. Census Bureau, American FactFinder, B02001 New Hanover County at 12, Attachment ___; U.S. Census
Bureau, American FactFinder, C17002 at 12, Attachment ___.
May 17, 2019
Page 58
communities; omitted cumulative impacts from recent hurricanes; and ignored the lack of
harmony with state and local plans developing bicycle and pedestrian infrastructure.

A. All Alternatives Would Disproportionately Impact Minority and Low-Income


Communities

NCDOT recites the environmental justice principles it is legally required to adhere to, but
fails to adequately fulfill its obligations pursuant to Title VI of the Civil Rights Act and
Executive Order 12898. Every one of the six detailed study alternatives (“DSAs”) proposed by
NCDOT disproportionately impacts majority-minority and low-income communities.
Furthermore, NCDOT fails to consider how the strong likelihood that the project would be a toll-
road would impact these communities. Finally, NCDOT’s poor public participation practices,
discussed above, means that these communities have not had a full and fair opportunity to
participate in the transportation decision-making process as required by NEPA.

1. NCDOT must comply with federal law and guidance regarding Environmental
Justice

Environmental justice concerns the application of the principle of non-discrimination in


the context of environmental threats. Environmental justice is “the fair treatment and meaningful
involvement of all people regardless of race, color, national origin or income, with respect to the
development, implementation, and enforcement of environmental laws, regulations, and
policies.” 254

Title VI of the Civil Rights Act of 1964 states that “[n]o person in the United States shall,
on the ground of race, color or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.” 255 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 VI. See Ratliff
v. Wake Forest Baptist Med. Ctr., No. 1:13CV991, 2014 WL 197809, at *2, *2 n.3 (M.D.N.C.
Jan. 14, 2014) 256 NCDOT is a North Carolina state agency 257 and is a recipient of federal
funds. 258

254
Environmental Justice: Learn About Environmental Justice, EPA,
https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last visited May 9, 2019); Attachment
67.
255
42 U.S.C. § 2000d.
256
See also U.S. DEP’T OF JUSTICE, TITLE VI LEGAL MANUAL § V(C) (2017), available at
https://www.justice.gov/crt/fcs/T6manual5. Attachment 68.
May 17, 2019
Page 59
In 1994, President Clinton issued Executive Order 12898, which addresses the federal
government’s responsibility to carry out its activities in keeping with environmental justice
principles. 259 Executive Order 12898 mandates that:

Each Federal agency shall conduct its programs, policies, and activities that
substantially effect human health or the environment, in a manner that ensures
that such programs, policies, and activities do not have the effect of excluding
persons (including populations) from participating in, denying persons (including
populations) the benefits of, or subjecting persons (including populations) to
discrimination under, such programs, policies, and activities, because of their
race, color, or national origin. 260

Executive Order 12898 also mandates that each Federal agency “identify[] and address[],
as appropriate, disproportionately high and adverse human health or environmental effects of its
programs, policies, and activities on minority populations and low-income populations.” 261 The
Presidential Memorandum accompanying Executive Order 12898 emphasized the importance of
using the NEPA review process to promote environmental justice, and directed Federal agencies
to analyze the environmental effects, including human health, economic, and social effects, of
their proposed actions on minority and low-income communities when required by NEPA. 262

Transportation projects elicit environmental justice concerns when they


disproportionately impact or fail to benefit minority or low-income communities. 263 FHWA
guidance defines the “adverse effects” broadly, to include:

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;

257
See N.C. Gen. Stat. § 136-18.
258
FEIS 5 (stating that Complete 540 project would include federal funding); see 49 C.F.R. § 21.23(f).
259
Exec. Order No. 12,898, Federal Actions to Addressed Environmental Justice in Minority Populations and Low-
Income Populations, 59 Fed. Reg. 7,629 (Feb. 16, 1994).
260
59 Fed. Reg. 7,631.
261
Id.
262
phttps://www.epa.gov/sites/production/files/2015-02/documents/clinton_memo_12898.pdf.
263
See JOLANDA PROZZI, ET AL., CTR. FOR TRANSP. RES. AT THE UNIV. OF TEX. AT AUSTIN, ASSESSING THE
ENVIRONMENTAL JUSTICE IMPACTS OF TOLL ROAD PROJECTS 2 (2010), available at http://ctr.utexas.edu/wp-
content/uploads/pubs/0_6544_1.pdf (produced in cooperation with the Texas Department of Transportation and the
Federal Highway Administration), Attachment 69; 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.georgetown.edu/cgi/viewcontent.cgi?article=1537&context=facpub.
Attachment 70.
May 17, 2019
Page 60
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. 264

In keeping with Executive Order 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.]

265
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
environmental justice strategies. 266 USDOT released an updated strategy in November 2016. 267
According to USDOT’s updated environmental justice strategy, the agency incorporates the
following environmental justice and equity principles into all transportation planning and
decision-making processes and project-specific environmental reviews:

264
FED. HIGHWAY ADMIN, ORDER 6640.23A, FHWA ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY
POPULATIONS AND LOW-INCOME POPULATIONS § 5(f) (2012) (defining “adverse effects”), available at
https://www.fhwa.dot.gov/legsregs/directives/orders/664023a.pdf, Attachment 71. See also NAT’L ACADEMY OF
SCI., EFFECTIVE METHODS FOR ENVIRONMENTAL JUSTICE ASSESSMENT (2004), available at
http://www.trb.org/Publications/Blurbs/152430.aspx. Attachment 72.
265
U.S. DEP’T OF TRANSP., DOT-OST-2012-044, DEPARTMENT OF TRANSPORTATION UPDATED ENVIRONMENTAL
JUSTICE ORDER 5610.2(a) , available at
https://www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/orders/order_56102a/dot56102a.pdf,
Attachment 73.
266
ERIC H. HOLDER, ET AL., MEMORANDUM OF UNDERSTANDING ON ENVIRONMENTAL JUSTICE AND EXECUTIVE
ORDER 12898, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-mou-2011-08.pdf,
Attachment 74.
267
Environmental Justice Strategy, U.S. DEP’T OF TRANSP. (Nov. 15, 2016),
https://www.transportation.gov/policy/transportation-policy/environmental-justice-strategy, Attachment 75.
May 17, 2019
Page 61
To ensure the full and fair participation of all potentially affected communities in
the transportation decision-making process.

To avoid, minimize or mitigate disproportionately high and adverse human health


or environmental effects, including social and economic effects, on minority or
low income populations.

To fully evaluate the benefits and burdens of transportation programs, policies,


and activities upon low-income and minority populations. 268

USDOT’s responsibility to ensure compliance with EO 12898 is not affected by NCDOT’s


assumption of primary responsibility for a project. 269 In addition, FHWA maintains a separate
directive on environmental justice in order to carry out its “longstanding policy to actively ensure
nondiscrimination in federally funded activities.” 270 Recipients of federal funds, 271 including
NCDOT, 272 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. 273

2. Failure to avoid, minimize or mitigate impacts to environmental justice


communities

NCDOT’s Community Impact Assessment for Brunswick and New Hanover Counties
recognizes the agency’s legal obligation to carry out its activities in keeping with environmental
justice principles, 274 yet fails to do so. None of NCDOT’s current alternatives avoid, minimize,
or mitigate high and adverse human health or environmental effects on minority and low income
populations. Every step NCDOT has taken, from scoping to the selection of the six DSAs,

268
U.S. Dep’t of Transp., Environmental Justice Strategy (Nov. 15, 2016),
https://www.transportation.gov/policy/transportation-policy/environmental-justice-strategy. (last visited May 9,
2019).
269
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/projects/Roadway/RoadwayDesignAdministrativeDocuments/FHWA%20and%20NCDO
T%20Oversight%20Agreement.pdf, Attachment 76. See 23 U.S.C. § 106(c).
270
FED. HIGHWAY ADMIN, ORDER 6640.23A, FHWA ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY
POPULATIONS AND LOW-INCOME POPULATIONS (2012), available at
https://www.fhwa.dot.gov/legsregs/directives/orders/664023a.pdf, Attachment 71.
271
See Brenda C. Kragh, et al., FHWA-HRT-16-003, Environmental Justice: The New Normal for Transportation,
79 PUB. ROADS 5 (2016), https://www.fhwa.dot.gov/publications/publicroads/16marapr/02.cfm. Attachment 77.
272
Title VI Nondiscrimination Program, N.C. DEP’T OF TRANSP., https://www.ncdot.gov/initiatives-policies/access-
for-all/nondiscrimination-program/Pages/default.aspx (last visited May 10, 2019), Attachment 78.
273
Toolkit Resources, N.C. DEP’T OF TRANSP.,
https://connect.ncdot.gov/projects/toolkit/Lists/ToolKitResources/DispForm.aspx?ID=85108&ContentTypeId=0x01
004BE04D804D0A8A49BA2BEDFA43E08771 (last visited May 10, 2019), Attachment 79.
274
Community Impact Assessment at 57.
May 17, 2019
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results in the impacts of the proposed bridge disproportionately falling upon low income and
minority communities.

NCDOT’s selection of a study area where low-income and minority communities are
overrepresented relative to the regional average guarantees that any alternative selected will
disproportionately affect minority and low-income communities. The study area is made up of a
region of Brunswick and New Hanover Counties where the percentage of the population in the
study area that identifies as a minority or low-income is significantly higher than the Counties’
average. The Community Impact Assessment states that Brunswick County’s population is
18.9% minority, and that New Hanover County population is 23.3% minority. 275 According to
the Community Impact Assessment, the Detailed Study Area selected by NCDOT during the
scoping process is 28.5% minority. 276 The study area also has higher poverty rates than the
average of Brunswick and New Hanover Counties. 16.6% of the population of Brunswick
County and 16.9% of New Hanover County is below the poverty level, while up to 18.1% of the
population in the study area is below the poverty level. 277 Therefore, the project’s study area
includes a higher proportion of minority and low-income population than Brunswick County and
New Hanover County as a whole, increasing the likelihood that impacts caused by the proposed
bridge would disproportionately impact environmental justice communities.

Indeed, NCDOT’s analysis of block group level data within the study area indicates that
every alternative currently under consideration would have serious impacts on low-income and
minority communities. Within the study area, NCDOT analyzed block group level data from the
U.S. Census American Community Survey data from 2009-2013 to determine the presence of
low-income and minority communities. 278 NCDOT used thresholds based on the percent of
minority and low-income populations living in Brunswick and New Hanover counties to
determine the presence of environmental justice communities at the block group level. In
addition, NCDOT used block-data to identify census blocks within the study area with high
minority rates. NCDOT used this data to analyze the impacts each of the original twelve study
alternatives would have on low-income and minority communities, and found that every one of
those alternatives would impact these communities. 279 NCDOT then went on to narrow
consideration to six DSAs, each of which would have “high or adverse” impacts on
environmental justice communities. 280 The Community Impact Assessment concludes: “impacts
to populations identified as minority and/or low-income are anticipated with this project.” 281
NCDOT has appeared to largely take for granted that this project will impact low-income and

275
Id. at 41.
276
Id.
277
Id. at 46.
278
Community Impact Assessment at 57.
279
Id. at 58, tbl 19.
280
Id. at vii.
281
Id. at 58.
May 17, 2019
Page 63
minority populations, plowed ahead with planning alternatives known to have such impacts, and
as such has made no attempt to avoid, minimize, or mitigate harms to such communities.

NCDOT has been aware of the project’s potential impacts to low-income and minority
communities for over a decade, and has seemingly disregarded these communities in selecting
the DSAs. As early as 2006, Dave Timpy from the U.S. Army Corps of Engineers raised
concerns about environmental justice impacts to the Spring Hill community in an early agency
scoping meeting. 282 Later that year, the Director of Brunswick County’s Planning Department,
Leslie Bell, flagged multiple possible environmental justice communities, including the Dark
Branch community, Easy Hill, Clairmont Woodlawn, Central Boulevard, and Snowfield. 283 In
September 2013, EPA sought to eliminate all alternatives that begin on the Wilmington Bypass
(A, B, C, and D) due to impacts to the community of Spring Hill, and the “the isolation effect
that would potentially be had on this environmental justice community.” 284 However, WMPO
was in favor of keeping these alternatives since they would mitigate impacts to Snee Farm and
Stoney Creek. 285 Potential impacts to the Spring Hill community were raised again in December
2013, when there was discussion,

regarding Alternatives A through D and their potential impacts to the


environmental justice community of Spring Hill. During planning and design of
the Wilmington Bypass, it was found that certain designs disrupted community
cohesion and caused isolation of the community. These factors are likely to be
issues for the Cape Fear Crossing project as well for Alternatives A through D,
and they will need to be assessed as detailed studies progress.

286
Despite being notified of these potential impacts, and having access to census data which
confirmed the severity of these impacts NCDOT has stayed the course, exclusively selecting
alternatives that impact low-income and minority communities.

The point of Executive Order 12898 and associated agency guidance concerning
environmental justice is not to simply identify impacts an action would have on environmental
justice communities, and then perform that action anyway.

Upon determining, as NCDOT has, that the study area is disproportionately made up of
environmental justice communities, and that each proposed route would have “high or adverse

282
Memorandum, Final Report of Meeting, Jan. 23, 2006 1:30, North Carolina Turnpike Authority (NCTA) – Cape
Fear Skyway Project Agency Scoping Meeting, at DEIS App. E.
283
Memorandum to Project File from Shannon Cox, July 12, 2006, at DEIS App. E.
284
Meeting Minutes, U-4738 Concurrence Point 2 Meeting, Sept. 18 2013, at DEIS App. E.
285
Id.
286
Meeting Minutes, U-4738 Concurrence Point 2 Meeting, Dec. 12 2013, at DEIS App. E.
May 17, 2019
Page 64
impacts” upon these communities, NCDOT is legally obligated to “avoid, minimize, or mitigate”
these impacts. Instead, NCDOT merely promises to determine,

the severity of effects and potential of those effects to fall disproportionately on


those communities identified . . . through future public involvement. Any
identified moderate to severe impacts may then be assessed to determine if
avoidance, minimization, or mitigation can be proposed. 287

But if the extent of potential impacts upon environmental justice communities is not evaluated
until after a recommended alternative is selected, the opportunity to avoid impacts to these
communities has been largely missed. Furthermore, NCDOT is required to avoid, minimize, or
mitigate impacts, not merely to “determine if avoidance, minimization, or mitigation can be
proposed.” NCDOT’s vague commitment to consider and possibly address impacts to
environmental justice communities at some unspecified future time is insufficient to satisfy the
principles of environmental justice it claims to conform to, and insufficient to satisfy Executive
Order 12898.

3. Failure to fully evaluate the benefits and burdens of the proposed bridge upon
environmental justice communities

NCDOT has failed to fully and accurately evaluate impacts the proposed bridge would
have upon low-income and minority communities. Instead of fully evaluating the benefits and
burdens of the proposed bridge upon low-income and minority communities, as FHWA guidance
requires, NCDOT repeatedly attempts to put off this obligation until some unspecified later date.
For example, as discussed above, NCDOT identifies “high or adverse” impacts to low-income
and minority communities for each DSA, but states that the severity and potential of those effects
to fall disproportionately upon these communities “will be determined through future public
involvement.” 288 NCDOT may not make its obligation to fully evaluate these burdens
contingent upon the future involvement of low-income and minority communities.

Furthermore, NCDOT fails to evaluate the impacts that several alternatives would have
on community resources located in census blocks with high minority rates. Some of these
community resources, such as the Isaac M Bear High School, are located in the right-of-way of
particular alternatives (in this case Alternative N-Avoidance). 289 Other schools, like Sunset Park
Elementary, are located directly adjacent to some alternatives (in this case, Alternative V-A). 290
These impacts, despite being easily ascertainable from the Community Context Diagram in
Appendix C of the Community Impact Assessment, are not disclosed in the DEIS or the text of
287
Id.
288
Id.
289
Id. App. C Fig. 12: Community Context Diagram (PDF p. 114).
290
Id. App. C Fig. 12: Community Context Diagram (PDF p. 106).
May 17, 2019
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the Community Impact Assessment. The omission of such details regarding the impacts that the
proposed alternatives would have on minority and low-income community resources violates the
principle that benefits and burdens upon environmental justice communities must be evaluated in
full.

In addition, NCDOT has not considered how the bridge’s likely designation as a toll road
would uniquely disadvantage low-income communities. NCDOT has repeatedly indicated that
the proposed Cape Fear Crossing may be financed through tolls.

Toll roads are problematic from an environmental justice perspective because the tolls
themselves disproportionately impact minority or low-income communities. FHWA has
recognized for over a decade that tolls have inequitable impacts that should be analyzed as
environmental justice impacts under NEPA. 291 Nevertheless, the DEIS fails to consider how the
possibility that the proposed bridge would be a toll bridge impacts environmental justice
communities in the study area. Without an analysis of the impact of tolls, NCDOT has failed to
fully evaluate the benefits and burdens of the proposed bridge upon environmental justice
communities.

4. Failure to ensure full and fair participation for environmental justice


communities

The Community Impact Assessment identifies several environmental justice communities


that would be impacted by one or more DSAs. However, there is no documentation indicating
that NCDOT has made efforts to ensure full and fair participation for any of these communities.
The Community Impact Assessment and the Agency Meeting Notes appended to the DEIS
indicate that NCDOT is aware of at least the following environmental justice communities
within the study area:

• Spring Hill
• Dark Branch
• Easy Hill
• Clairmont Woodlawn
• Central Boulevard
• Snowfield Road (East of US 17, South of 1-140 interchange)
• Highway 87 (Maco Road)
• Lanvale Road (Northwest of US 17 and Lanvale Road)

291
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_justice/resources/ej_and_nepa/case_studies/case05.cfm (last
visited Feb. 13, 2018), Attachment 80.
May 17, 2019
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• US 421 (3rd Street) and US 76 (Wooster Street and Dawson Street)
• US 421 (Carolina Beach Road) and North Carolina Avenue/Tennessee Avenue
• US 421 (Carolina Beach Road) and US 117 (Shipyard Boulevard)

The Community Impact Assessment anticipates changes in access and barrier effects and
substantial relocations and impacts to community cohesion for Snowfield Road, Goodman Road,
Lanvale Road, US 421 (South US 421 (3rd Street) and US 76 (Wooster Street and Dawson
Street), US 421 (Carolina Beach Road) and North Carolina Avenue/Tennessee Avenue, US 421
(Carolina Beach Road) and US 117 (Shipyard Boulevard). 292 Despite documenting substantial
potential impacts to these communities, NCDOT has not documented any efforts to ensure full
and fair participation for these communities. Appendix A of the Community Impact Statement,
which contains records of meetings, is six pages long, and does not document any interactions
with representatives from these or other environmental justice communities. 293 Instead,
Appendix A contains notes from two meetings—one with the City of Wilmington and the other
with the Town of Leland—regarding the Community Impact Assessment and Land Use Scenario
Assessment. 294 The minutes for the meeting with the Town of Leland briefly mention the
presence of a low-income community located on Highway 87 (Maco Road) past Grayson Park,
but do not include any plans for outreach. 295 The only other documents in Appendix A are logs
documenting phone conversations related to local development plans. 296 At the Public Meeting
NCDOT held in Leland on April 30, 2019, multiple members of the public commented that their
neighbors had not received notice that the project might impact their property. This, combined
with NCDOT’s other public process failures, raises substantial concerns as to whether
environmental justice communities have received a full and fair opportunity to participate in
decision-making for this project.

Throughout the Community Impact Assessment NCDOT admits that it is relying


on unspecified, “future public involvement” efforts rather than public outreach to low-income
and minority communities that has already occurred. 297 For example, NCDOT states that it is
unable to determine the extent of the project’s visual impacts on low-income and minority
communities because “visual preferences can be difficult to discern without feedback from the
community; therefore, potential visual impacts should be assessed following public outreach to
the community.” 298 Opportunities for public involvement, particularly for low-income and
minority communities, must come early and often to ensure that these communities’ input is

292
Community Impact Assessment at 60-61.
293
Community Impact Assessment at App. A.
294
Id.
295
Id.
296
Id.
297
Id. at 58, 62.
298
Id. at 62.
May 17, 2019
Page 67
actually considered. Instead, NCDOT appears to be delaying any such outreach until after
decisions regarding the project have already been made.

NCDOT includes evaluating “opportunities for continued outreach to minority and low-
income communities/neighborhoods that have potential to experience high and adverse effects
and/or unmitigated recurring impacts from the proposed project” in its “recommendations/next
steps.” 299 While outreach to environmental justice communities is a critical step in the NEPA
process, if NCDOT waits to take this step until after a recommended alternative has been
selected and any opportunity to avoid, minimize, or mitigate impacts to these communities has
passed, efforts to engage low minority and low-income communities will ring hollow. NCDOT
must not only reach out to these communities, but ensure that such outreach gives communities a
timely, full, and fair opportunity to participate in decision-making.

B. The Community Impact Report Fails to Consider Impacts to Communities


Already Devastated by Recent Hurricanes

Furthermore, neither the Community Impact Assessment nor the DEIS discuss the
impacts the proposed project would have upon communities in Brunswick and New Hanover
Counties that are still recovering from the effects of recent hurricanes. With Hurricane Michael
in 2016 and Hurricane Florence in 2018, the Eastern coast of North Carolina was dealt two so-
called 1,000 year storms in the last two years. 300 Hurricane Florence, which made landfall on
September 12, 2018, dumped over 26 inches of rain around Wilmington, produced peak wind
gusts of up to 105 miles per hour, and caused a storm surge of up to 3.6 feet above MHHW. 301
Florence caused nearly $17 billion in damage in North Carolina. 302

Hurricane Florence significantly damaged many communities in Brunswick and New


Hanover Counties. 4,017 New Hanover County households and 1,727 Brunswick County
households received FEMA money to help them repair their homes, replace their belongings, or
pay for temporary housing. 303 In the Stoney Creek neighborhood in Leland, 44 homes were

299
Id. vii.
300
NOAA, Exceedance Probability Analysis for Selected Storm Events (last visited May 15, 2019) available at
http://www.news.noaa.gov/oh/hdsx/aep_stor_analysis/, Attachment 81.
301
National Weather Service, Historic Hurricane Florence (last visited May 15, 2019) available at
https://www.weather.gov/mhx/Florence2018, Attachment 82; Jeff Masters, Florence’s 1-in-100-year storm surge
breaks all-times records, Weather Underground (Sept. 14, 2018) https://www.wunderground.com/cat6/Florences-1-
100-Year-Storm-Surge-Breaks-All-Time-Records, Attachment 28.
302
Amanda Lamb, Two months after Florence, New Hanover County residents still reeling (Nov. 14, 2018)
https://www.wral.com/new-hanover-country-residents-struggle-to-recover-2-months-after-hurricane-
florence/17995134/, Attachment 83.
303
Amanda Lamb, Two months after Florence, Attachment 83.
May 17, 2019
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flooded. 304 Some of the residents of Stoney Creek are still relying on FEMA trailers as they
renovate and repair their damaged homes. 305

NCDOT failed to identify and consider the effect of Hurricane Florence in any
cumulative impacts analysis. The DEIS and Community Impact Assessment fail to document
any of the damage Hurricane Florence inflicted upon communities in the study area and how the
proposed project might influence related recovery efforts. The Community Impact Assessment
notes in passing that Snee Farm, Stoney Creek, and Spring Hill communities “have shown
concern over project alternatives that include a terminus at the 1-40/US 17 interchange” but fails
to elaborate on the nature of these concerns or mention that these communities are currently in
the process of recovering from devastating hurricane impacts. 306 The Community Impact
Assessment lacks any reference of the predominantly minority and low-income communities in
New Hanover County that are facing similar challenges and would be impacted by certain DSAs.
Studies indicate that higher income, better resourced and insured communities recover and
rebuild faster than their low-income, resource scare neighbors. 307

NCDOT should have acknowledged the damage Hurricane Florence and previous
hurricanes inflicted upon communities in the study area specifically considering how low-
income communities in the study area are uniquely affected and limited in their ability to recover
from natural disasters. Such information about communities recovering from hurricanes should
inform NCDOT’s review of likely community and environmental impacts from the project,
including its insufficient environmental justice analysis.

C. All Alternatives Would Eliminate Existing Bicyclist and Pedestrian Facilities

Not only does the project fail to accommodate bicyclists or pedestrians, the proposed
project will have severe impacts on bicycle and pedestrian access and safety within the study
area. Currently, pedestrian facilities and designated bicycle routes are abundant throughout the
New Hanover County portion of the study area, 308 and pedestrians are commonly observed in the
study area in both New Hanover and Brunswick Counties. 309

304
Amanda Lamb, Brunswick County residents struggle to recover from Hurricane Florence (Nov. 12, 2018)
https://www.wral.com/brunswick-county-residents-struggle-to-recover-from-hurricane-florence-/17990236/,
Attachment 84.
305
Johanna Ferebee, Florence flooded their homes, so they’re rebuilding. Now a billion-dollar bridge looms (May
14, 2019) https://portcitydaily.com/local-news/2019/05/14/florence-flooded-their-homes-so-theyre-rebuilding-now-
a-billion-dollar-bridge-looms/, Attachment 85.
306
Community Impact Assessment at 37.
307
ISET International, Hurricane Florence: Building Resilience for the new normal (April 2019) available at
https://www.coastalreview.org/wp-content/uploads/2019/05/hurricane-florence-building-resilience-for-the-new-
normal.pdf, Attachment 86.
308
Id. at ii.
309
Id.
May 17, 2019
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The City of Wilmington has repeatedly requested that bicycle and pedestrian facilities be
included in the project. 310 In September 2010, the WMPO passed a resolution requesting that
NCDOT consider bicycle and pedestrian accommodations for the project. 311 In June 2013, the
Wilmington Urban Area Metropolitan Planning Organization’s Transportation Advisory
Committee Cape Fear Crossing Work Group met to discuss this resolution in relation to the Cape
Fear Crossing project. 312 In September 2013, the WMPO again requested “that bicycles and
pedestrian accommodations be include in the study of DSAs.” 313

Improving access for bicyclists and pedestrians is an important aspect of several local
land-use plans. For example, in 2013 the Wilmington MPO, Town of Leland, Town of Belville,
Town of Navassa, and Brunswick County worked together to create the Connecting Northern
Brunswick County plan, which was intended to improve and develop connectivity throughout the
county to relieve traffic congestion. 314 The plan recommended bicycle and pedestrian
improvements, including a recommendation to upgrade connectivity across US 17 and the
Brunswick Nature Park. 315 It also highlighted the importance of including an interconnected
multimodal infrastructure to connect people with places in the consideration of new
development. 316

The Create Wilmington Comprehensive Plan, the growth and development plan for the
metropolitan area of Wilmington, similarly seeks to create “special character streets” which
would promote bicycle and pedestrian facilities. 317 Policies described in the plan are based on
the “desire for a more compact and walkable development pattern.” 318 The Cape Fear
Transportation 2040 plan also emphasizes the importance of regional connectivity with biking
and walking a part of the regional multimodal transportation system. 319 It proposes several
bicycle and pedestrian accommodations throughout Wilmington, and depicts a planned greenway
along US 421, US 117, and Independence Boulevard. 320

The proposed project appears to directly contravene regional goals of improving bicycle
and pedestrian access and connectivity by both failing to promote multi-modal access and by

310
Id. at 70.
311
Memorandum from Joanna Rocco to meeting attendees re: Minutes of Meeting held May 13, 2013 at 1:00 PM, at
DEIS App. E.
312
Id.
313
Meeting Minutes, U-4738 Concurrence Point 2 Meeting, Sept. 18, 2013 at DEIS App. E.
314
Community Impact Assessment at 31.
315
Id.
316
Community Impact Assessment at 33.
317
Wilmington, Create Wilmington Comprehensive Plan, 5-39 (2016), Attachment 87; See also Community Impact
Assessment. at 33.
318
Id. at 5-12.
319
Wilmington Urban Area Metro. Plan. Org., Cape Fear Transportation 2040, vi (2015), hereinafter Cape Fear
Transportation, Attachment 88.
320
Id. at vi-xi.
May 17, 2019
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destroying or rendering inaccessible existing bicycle and pedestrian routes. The Community
Impact Assessment states that the highway design will not include sidewalks or bicycle lanes. 321
NCDOT also states that “[b]icycles and pedestrian facilities will be prohibited on facilities
upgraded to full control of access.” 322 The project therefore, will not accommodate bicyclists
and pedestrians.

In addition to not including bicycle or pedestrian facilities within the project’s design, all
DSAs currently under consideration would have a moderate impact or more on existing multi-
modal resources and accommodations. 323 As documented in the Community Impact Assessment,
widening existing US 17 and or updating it to a freeway would “further exacerbate the barrier
effects along the US 17 corridor and make it more difficult for pedestrians and bicyclists to travel
along or across the roadway.” 324 The Northern Alternatives would impact connectivity of
pedestrian and designated bicycle facilities that currently traverse Brunswick Forest. 325 NCDOT
also notes that widening US 421 would “likely make pedestrian and bicycle movements more
difficult if appropriate accommodations, such as medians, crosswalks, or bicycle lanes, are not
provided.” 326 As noted above, such accommodations are not currently provided in the highway
design. In sum, every alternative currently under consideration would have significant negative
impacts on pedestrian and bicycle movements throughout the study area.

These impacts fly in the face of NCDOT’s stated commitment to ensure access to
sidewalk and bicycle accommodations through a Complete Streets Policy. 327 Complete streets—
which are roadways that serve all transportation modes, including bicycle, pedestrian, and mass
transit--are critical for ensuring pedestrian and bicycle safety. In its draft, revised Complete
Streets Policy, NCDOT commits to “serving vulnerable users, including persons who depend on
walking, bicycling, or transit for basic needs.” These needs are especially pronounced in the
study area for this project because of the large number of households that do not own cars. 9.1%
of households in the study area are zero car households. 328 In parts of New Hanover County,
according to NCDOT up to 49.7% of households are zero car households. 329 As discussed
above, this figure is inaccurate. 330 However, Census data indicates that several other block
groups in New Hanover and Brunswick County include up to 30% zero car households. 331 For
these households, which rely on pedestrian and bicycle accommodations for daily commutes or

321
Id. at 9.
322
Id. at v.
323
Id. at vii.
324
Id. at 68.
325
Id. at 53.
326
Id.
327
See NCDOT Complete Streets Policy, Revised Draft 1.2019, Attachment 89.
328
Id. at App. B.
329
Id.
330
See supra notes 248-53.
331
US Census Bureau, American FactFinder, B25004 at 37, Attachment 65.
May 17, 2019
Page 71
other purposes, the proposed project’s impacts to pedestrian and bicycle facilities and
connectivity could be devastating.

Pedestrian and cyclist mortality data underscores the need for complete streets. Eight
percent of pedestrian fatalities that occur in the United States occur as pedestrians “walking
along the roadway” in the absence of a sidewalk. 332 According to FHWA, up to 88% of these
deaths could be prevented by the addition of walkways separated from vehicle travel lanes. 333
Lack of complete streets is also an equity issue: pedestrian fatalities are disproportionately
people of color. 334

NCDOT must meet its stated commitment to promoting multi-modal transportation


solutions that safely accommodate access and travel for all users. 335 NCDOT’s lack of
commitment to including bicycle and pedestrian facilities in the proposed bridge design, along
with the DSAs’ destructive impacts to existing sidewalks and bicycle paths in the study area,
renders the proposed project out of harmony with NCDOT’s stated goals and the region’s
transportation plans, and places pedestrians and bicyclists at risk.

VII. CONCLUSION

The DEIS fails to meet the requirements of NEPA and makes clear that the Cape Fear
Crossing project cannot move forward in its current form. The DEIS is riddled with myriad
errors, omissions, and misrepresentations regarding the project’s environmental effects, financial
viability, traffic forecasts, and community impacts. The sheer volume of unstudied and
undisclosed information demonstrates that NCDOT has failed to the “hard look” at the
environmental consequences of its projects required by NEPA. And at this stage, the available
information makes clear that this nearly billion-dollar bridge would result in more harm than
good. This is not the type of informed decision-making that NEPA is intended to ensure. It is
imperative that NCDOT correct its erroneous and outdated data and undertake the analyses
necessary to rectify its omissions before making any further decisions on this project. Finally,
NCDOT must search for alternative solutions that actually meet the area’s transportation needs
and do not impose such devastation upon existing neighborhoods, endangered species, and
special, sensitive natural resources.

Sincerely,
332
FHWA, Safety Benefits of Walkways, Sidewalks, and Paved Shoulders,
https://safety.fhwa.dot.gov/ped_bike/tools_solve/walkways_trifold/ (last accessed May 13, 2019), Attachment 90.
333
Id.
334
Angie Schmitt, The Unequal Toll of Pedestrian Deaths, StreetBlog USA (Jan. 10, 2017)
https://usa.streetsblog.org/2017/01/10/the-unequal-toll-of-pedestrian-deaths/, Attachment 91.
335
NCDOT Complete Streets Policy, Revised Draft 1.2019, Attachment 89.
May 17, 2019
Page 72

Kym Hunter
Senior Attorney

Ramona McGee
Staff Attorney

Maia Hutt
Associate Attorney

Liz Rasheed
Associate Attorney

CC (via email):
Kemp Burdette, Cape Fear River Watch
Todd Miller, North Carolina Coastal Federation
Kerri Allen, North Carolina Coastal Federation
Tim Gestwicki, North Carolina Wildlife Federation
Andrew Hutson, Audubon North Carolina
Daniel Parkhurst, Clean Air Carolina
Andy McGlinn, Cape Fear Group of the North Carolina Sierra Club
Senator Bill Rabon, District 8
Senator Harper Peterson, District 9
Representative Deb Butler, District 18
Mayor Bill Saffo, Wilmington, NC
Mayor Brenda Bozeman, Leland, NC
Mayor Mike Allen, Belville, NC
Chair Michael S. Fox, NC Board of Transportation
Vice Chair Nina Szlosberg-Landis, NC Board of Transportation
Michael K Alford, Division 3, NC Board of Transportation
Bobby Lewis, NCDOT
Jeremy Tarr, Office of Governor Roy Cooper
James Trogdon, North Carolina Secretary of Transportation
Daniel H. Johnson, NCDOT General Counsel
May 17, 2019
Page 73
Brad Shaver, USACE
Edward Parker, FHWA
Travis Wilson, NCWRC
Joanne Steenhuis, NCDWR
Mike Kozlosky, WMPO
James J. Eden, Executive Director, North Carolina Turnpike Authority
Cathy Brittingham, NCDEQ, Division of Coastal Management
Chris Militscher, EPA
Gary Jordan, FWS
Pete Benjamin, FWS
Tracy Roberts, NCDOT
Julie Whiten, NCDOT

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