NCDOT accused of misleading public about $2.2 billion highway project

NC DOT announces 'Complete 540' route decision

NC DOT Complete 540 project manager Eric Midkiff announces DOT's recommended preferred Alternative Route 2 for the southern leg of the ongoing 540 Outer Loop project Wednesday, February 3, 2016.
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NC DOT Complete 540 project manager Eric Midkiff announces DOT's recommended preferred Alternative Route 2 for the southern leg of the ongoing 540 Outer Loop project Wednesday, February 3, 2016.

Opponents of a planned six-lane toll road across southern Wake County say an email exchange between two N.C. Department of Transportation engineers last fall shows the state misled the public about the project’s schedule in an attempt to stymie opposition.

But the head of the N.C. Turnpike Authority – the state agency that plans to build the final legs of N.C. 540, the Triangle Expressway, between Holly Springs and Knightdale – says that while the email’s wording is “unfortunate,” it doesn’t mean the state has been anything but transparent about the schedule.

This is the planned route of the southern leg of N.C. 540, the Triangle Expressway. The N.C. Department of Transportation hopes contractors can begin construction on the 28.4-mile, six-lane toll road in 2019. NCDOT

At issue is the timing of the Final Environmental Impact Statement, a report that spells out the possible effects of the 28.4-mile highway on the natural and human environment. The Southern Environmental Law Center in Chapel Hill and two other environmental groups say they were counting on making their case when state and federal officials signed off on the final environmental report, which the state’s website and other published documents said would take place in “summer 2018.”

“We had been told that was the schedule multiple times and relied on those assurances from NCDOT to inform our clients and the public about when they would be able to comment, including getting necessary expert reports together,” said Kym Hunter, an attorney for the law center, which is representing the groups Sound Rivers and Clean Air Carolina. “Instead, the document was published 8 months ahead, a few days before Christmas, making it extremely difficult for us to fully engage the public in the comment process which ends on Feb. 1.”

Then last week, Hunter came across an email written by the project’s manager, Brian Yamamoto, that indicates that NCDOT and Turnpike Authority officials knew as early as September that the environmental impact report would be completed and signed this winter. The email was among documents related to the project that the environmental law center obtained through a request under the Freedom of Information Act, or FOIA.

In the email to his boss, Tatia White, on Sept. 13, Yamamoto says, “We are currently on schedule to sign the FEIS by 1/29/18.” In addition, he indicates that state officials intentionally obscured the scheduled release date to frustrate opponents of the project.

“WARNING: Turnpike Authority has been very close to the vest with the schedule information that gets written, even on status reports like the one you are working on,” Yamamoto wrote to White. “If our likely litigants become aware of the schedule we are working towards, they will likely file FOIAs that will delay the schedule ... so be careful what you supply to this group in writing.

“Admittedly, management should know what is going on, but we have depended on Beau Memory and Rodger Rochelle to coordinate with them in as low-key way as possible,” he concluded, referring to Turnpike Authority executive director Memory and Rochelle, the authority’s chief engineer.

In an interview this week, Yamamoto and Memory said the January date for the environmental report was the state’s goal but was not a sure thing. It depended on the Federal Highway Administration to review and sign off on the report, and past experience suggested it would be too optimistic to put that date out to the public, Memory said.

“These schedules are more about what we hope to deliver, what we hope to achieve. They’re more goals than anything else,” he said. “But that’s all dependent upon our federal and state resource agencies reviewing and working and commenting and responding to those comments in a timely manner. And with this project, we were very lucky to have federal highways – they were incredibly responsive and moved this incredibly quickly in a way that frankly we hadn’t experienced before.”

At the same time, Memory said, state officials from Transportation Secretary Jim Trogdon on down had been saying they hoped to speed up the development of N.C. 540, which has been in the works since the 1990s.

“Yes, we were absolutely saying this was the likely schedule we are going to hit,” he said, referring to “Summer 2018.” “But we were also out there being very clear, very open and very transparent about the fact that we were working hard to accelerate it.”

‘Likely litigants’

Even as he said the January date wasn’t solid, Yamamoto acknowledged this week that he did not want the “likely litigants” – the environmental groups – to know about it, because he feared they would file Freedom of Information Act requests for documents that he thought could delay planning for the project.

“In the past, we had to take a lot of time to get rooms and files together, and we lost our access to those files for a time period,” he said. “And I didn’t want that to happen when we were trying to meet that aggressive schedule in January.”

Greer Beaty, NCDOT’s deputy secretary for communications, said this week that those concerns were out of date and unfounded. The department now can usually fulfill requests for public documents electronically, she said, without depriving employees access to them.

Indeed, the Southern Environmental Law Center filed its FOIA request for documents related to the 540 project on Sept. 14, the day after Yamamoto’s email. Memory said highway planners were not aware of the request, which goes to a separate office, until this month, and acknowledges it had no impact on the completion of the environmental impact report.

“Certainly that is the fastest I remember we’ve ever gotten an environmental document of that size done that quickly,” he said. “And certainly while I think the phrasing of the email is unfortunate, it in no way reflects what has happened and what has occurred here on this project.”

Lawsuit ahead?

The Turnpike Authority announced that the Final Environmental Impact Statement was ready for public review on Friday, Dec. 22, and that the public had until Feb. 1 to comment on it. According to the report, the project would consume 1,825 acres, including 69.5 acres of wetlands, and force the relocation of 209 homes, five businesses and three nonprofit organizations. It would also cross several streams and likely harm two endangered species of freshwater mussels – the dwarf wedge and the yellow lance.

The three environmental groups that oppose the highway say the convenience and time savings for drivers aren’t worth those costs – or the $2.2 billion it will take to plan, design and build the road. In addition, the highway will exacerbate a pattern of sprawling development that will make the region more dependent on motor vehicles, says Terry Lansdell, program director for Clean Air Carolina, a Charlotte-based group concerned with air quality across the state.

“We think it has a negative outcome for generations to come because we think it encourages development and driving patterns that are hard to overcome,” Lansdell said.

Hunter, the environmental law center attorney, said it’s too soon to say whether the groups will file suit over 540. She said she believes the project would violate several state and federal environmental laws, but says they will wait until the Federal Highway Administration reviews the comments to the environmental impact statement and issues its final decision on the project.

That Record of Decision will stand as the final environmental document needed for the state to begin seeking permits for the highway. NCDOT now says it expects to have that document in hand this summer and hopes to issue the first contracts for final design and construction by about this time next year.

For more information about the project, including a link to the full Final Environmental Impact Statement, go to

Richard Stradling: 919-829-4739, @RStradling

After the restrictions put on him, Walter Simpkins, 75, has lost two decades use of his land in southeastern Wake County.