Response to Comments Received on the SEQRA DEIS
1 INTRODUCTION Based on the proposed funding and regulatory approvals initially anticipated for the Portageville Bridge Project (Project), a Draft Environmental Impact Statement (DEIS) was prepared for the Project in accordance with the New York State Environmental Quality Review Act (SEQRA), with the New York State Department of Transportation (NYSDOT) as SEQRA lead agency. NYSDOT accepted the SEQRA DEIS for circulation on November 26, 2012, and the document was made available for public review. The public review period for the SEQRA DEIS extended from November 26, 2012 through February 1, 2013, and a public hearing was held in January 2013. Subsequent to that process, federal funding for the Project through the Congestion Mitigation and Air Quality improvement (CMAQ) program was identified, making the Project subject to federal environmental review procedures. Accordingly, the Federal Highway Administration (FHWA), in cooperation with NYSDOT, is conducting environmental review of the Project in accordance with the National Environmental Policy Act (NEPA) and SEQRA. A NEPA Environmental Impact Statement (EIS) process has been undertaken, including preparation of a NEPA DEIS in July 2014. FHWA and NYSDOT are the NEPA joint lead agencies and NYSDOT is the SEQRA lead agency for the Project. This document summarizes and responds to the substantive comments received on the Project during the public review period for the SEQRA DEIS. It was prepared immediately prior to release of the NEPA/SEQRA DEIS in July 2014, to describe how comments already provided in the prior review period have been or will be addressed.
2 PUBLIC COMMENT PERIOD FOR SEQRA DEIS During the public comment period on the SEQRA DEIS, copies of the SEQRA DEIS were distributed to the Project mailing list and were made available for review on the Project’s website (www.dot.ny.gov/portagevillebridge) and at the following locations during normal business hours: New York State Department of Transportation: 50 Wolf Road, Albany, NY 1530 Jefferson Road, Rochester, NY New York State Office of Parks, Recreation and Historic Preservation: Letchworth State Park Visitors’ Center, Castile, NY Public Libraries: Bell Memorial Library, 16 East Street, Nunda, NY Mt. Morris Library, 121 Main Street, Mount Morris, NY Cordelia A. Greene Library, 11 S. Main Street, Castile, NY Perry Public Library, 70 N. Main Street, Perry, NY Pike Library, 65 Main Street W., Pike, New York
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The public comment period remained open through the close of business on February 1, 2013. Written comments (mail, fax, email, and submissions at the public hearing) were accepted through that date. Written comments received after February 1, 2013 were also accepted. In addition, a joint public hearing was held by NYSDOT and the Project Sponsor, Norfolk Southern Railway Company, on January 10, 2013 in Mount Morris, New York to accept public comments on the SEQRA DEIS and to accept comments on the acquisition of real property for project right-of-way by the Project Sponsor, including the potential for such acquisition by condemnation pursuant to Section 17 of the New York Railroad Law and Article 2 of the New York Eminent Domain Procedure Law. At the public hearing, engineering, environmental, and right-of-way aspects of the project were described in a brief formal presentation. In addition, before and after the hearing, NYSDOT and Project Sponsor representatives were available to answer questions. A court reporter transcribed the public hearing on the SEQRA DEIS. This document provides a summary of substantive comments received on the SEQRA DEIS during the public review period. Section 3 of this document provides a list of the public agencies, elected officials, organizations, and individuals that commented on the DEIS. Section 4 provides a summary of the comments and a response to each, with the name of the commenter(s) who made the comment provided in parentheses after each comment. These summaries convey the substance of the comments made, but do not necessarily quote the comments verbatim. Comments are organized by subject matter and generally parallel the chapter structure of the DEIS. Where more than one commenter expressed similar views, those comments have been grouped and addressed together.
3 COMMENTERS
3.1 Representatives of Federal, State, County, and Local Governments U.S. Department of the Army, Buffalo District, Corps of Engineers, Mark L. Lester, Biologist, letter dated January 16, 2012 (USACE) – Comment 31. U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS), Northeast Region, Mary A. Colligan, Assistant Regional Administrator for Protected Resources, letter dated January 11, 2013 (NMFS) – Comment 29. U.S. Department of the Interior, Bureau of Indian Affairs, Scott Meneely, Acting Director Eastern Region, letter dated January 28, 2013 (BIA) – Comment 36. U.S. Department of the Interior, U.S. Fish and Wildlife Service, David A. Stilwell, Field Supervisor, letter dated January 31, 2013 (USFWS) – Comments 30, 43. New York State Department of Environmental Conservation, Scott E. Sheeley, Regional Permit Administrator, letter dated February 8, 2013 (NYSDEC) – Comments 3, 4, 28, 44, 45. New York State Office of Parks, Recreation and Historic Preservation, Mindy Scott, Deputy Commissioner Finance and Administration, letter dated February 1, 2013 (OPRHP) – Comments 2, 8, 20, 21, 32, 33, 39, 46, 47, 54. Livingston County Environmental Management Committee, David W. Parish, written comments provided at public hearing (Livingston EMC) – Comments 1, 7. Town of Portage, NY, David M. DiMatteo, Esq., of Law Office of David M. DiMatteo, counsel to the Town of Portage, letter dated February 5, 2013 (Portage) – Comment 53.
2 Response to Comments Received on SEQRA DEIS
3.2 Elected Officials U.S. Congressman Tom Reed, comments made at public hearing on January 10, 2013, delivered by Alison Hunt (Reed) – Comment 26. New York State Senator Cathy Young, comments made at public hearing on January 10, 2013, delivered by William Heaney (Young) – Comment 7.
3.3 Representatives of Interest Groups and Businesses Buffalo–Niagara Partnership, Craig Turner, comments made at public hearing on January 10, 2013 (BNP) – Comment 26. Finger Lakes Trail Conference, Inc., Irene Szabo, letter dated January 15, 2013 (FLTC) – Comment 52. Friends of the Genesee Valley Greenway, Joan Schumaker for FOGVG Board of Directors, letter dated January 20, 2013 (FOGVG) – Comments 14, 16, 17, 52. Landmark Society of Western New York, Wayne Goodman, Executive Director, letter dated January 31, 2013 (Landmark Society) – Comments 14, 16, 17, 37. Parks & Trails New York, Robin Dropkin, Executive Director, letter dated January 29, 2013 (PTNY) – Comments 14, 16, 17. The New York, Susquehanna and Western Railway Corporation, Nathan R. Fenno, President, letter dated January 3, 2013 (NYS&W) – Comment 26. Keith Nugent, Owner, Keith’s Citgo, Portageville, NY, written comments provided at public hearing (Nugent) – Comment 27. Rails-to-Trails Conservancy, Carl Knoch, Manager of Trails Development, Northeast Regional Office, e-mail dated January 15, 2013 (RTC) – Comment 7. Western New York & Pennsylvania Railroad, Carl Belke, COO, comments made at public hearing on January 10, 2013 (WNYPR) – Comment 26.
3.4 Individuals Evelyn Avery, e-mail dated January 18, 2013 (Avery) – Comment 7. Brian Bodah, e-mail dated January 14, 2013 (Bodah) – Comment 7. Pauline Buck, e-mail dated January 15, 2013 (Buck) – Comment 7. Caliber Building, e-mail dated January 14, 2013 (Caliber) – Comment 12. George Comes, e-mail dated January 15, 2013 (Comes) – Comment 13. Karen Cox, e-mail dated January 7, 2013 (Cox) – Comment 15. Douglas Cunningham, e-mail dated January 15, 2013 (Cunningham) – Comment 19. Amy Currier, e-mail dated January 23, 2013 (Currier) – Comment 7. Joseph Dougherty, e-mail dated January 10, 2013 (Dougherty) – Comment 13. Neil G. Gow, e-mail dated January 17, 2013 (Gow) – Comment 7. David R. Griggs, e-mail dated January 29, 2013 (Griggs) – Comment 7. Michael Herzog, e-mail dated January 19, 2013 (Herzog) – Comment 17.
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Paul Hoffman, e-mail dated February 2, 2013 (Hoffman) – Comments 18, 52. Jamie M. Howard, e-mail dated January 16, 2013 (Howard) – Comments 7, 19. Steve Hull, e-mail dated January 16, 2013 (Hull) – Comment 7. Marylyn Ianiri, e-mail dated January 15, 2013 (Ianiri) – Comment 15. Kerry Ivers, e-mail dated January 15, 2013 (Ivers) – Comment 7. Richard H. Jordan III, e-mail dated January 30, 2013 (Jordan) – Comment 9. Jim Kemp, e-mail dated January 11, 2013 (Kemp) – Comment 22. Harvey L. Kliman, e-mail dated January 20, 2013 (Kliman) – Comment 7. John Kucko, comments made at public hearing on January 10, 2013 (Kucko) – Comments 15, 18. Jeffrey Marcus, e-mail dated January 14, 2013 (Marcus) – Comment 10. Mb, e-mail dated January 15, 2013 (Mb), – Comment 7. Martin V. Oulton, Jr., e-mail dated January 17, 2013 (Oulton) – Comment 25. Cindy Myers, e-mail dated February 9, 2013 (Myers) – Comments 15, 23, 24. Diane H. Peapus, e-mail dated January 17, 2013 (Peapus) – Comment 7. Donald L. Pevsner, Esq., e-mails dated December 18, 2012 and December 24, 2013 (Pevsner) – Comments 9, 11, 35. Esther Pitzrick, e-mail dated January 19, 2013 (Pitzrick) – Comment 7. Jason Poole, e-mail dated January 2, 2013 (Poole) – Comments 7, 34. Gary Prodrick, e-mail dated January 17, 2013 (Prodrick) – Comment 7. Marsha E. Redden, letter dated January 13, 2013 (Redden) – Comment 7. Rory Schnurr, e-mail dated January 2, 2013 (Schnurr) – Comment 7. Edward J. Sheats, Esq., e-mail dated January 15, 2013 (Sheats) – Comment 7. B.B. Steitz, e-mail dated January 15, 2013 (Steitz) – Comment 7. Scott Thomas, e-mail dated February 1, 2013 (Thomas) – Comment 7. James H. Tyler, P.E., F.ASCE, e-mail dated January 14, 2013 (Tyler) – Comment 15. Don Ulp, e-mail dated January 22, 2013 (Ulp) – Comments 7, 55. Jan Vrooman, e-mail dated January 16, 2013 (Vrooman) – Comments 15, 48, 49, 50, 51. Charles E. Walker, e mail dated January 13, 2013 (Walker) – Comment 15. Linda Walrath, e-mail dated January 15, 2013 (Walrath) – Comment 7. Paul Welker, e-mail dated January 17, 2013 (Welker) – Comment 7.
4 Response to Comments Received on SEQRA DEIS
4 SUMMARY OF AND RESPONSE TO COMMENTS RECEIVED
4.1 Process
Comment 1: Where was Norfolk Southern’s representative at the public hearing? (Livingston EMC) Response: Three representatives from Norfolk Southern as well as members of the company’s consultant team were present at the public hearing. All of these people were available before and after the formal public hearing for questions and answers. The formal public hearing included a presentation by Kevin Hauschildt, Engineer–Structures for Norfolk Southern. Additional presentations were made by Norfolk Southern’s environmental consultant, AKRF, Inc., and legal counsel, Harris Beach.
Comment 2: The involvement of federal permits and approvals by the U.S Army Corps of Engineers (USACE) and National Park Service will trigger review under Section 106 of the National Historic Preservation Act of 1966. Based on discussion between OPRHP and NYSDOT, the Section 106 process will be initiated with the National Park Service as the lead agency and the Memorandum of Agreement developed as part of the Section 106 process will be included in the FEIS. (OPRHP) Response: Following completion of the SEQRA DEIS, potential federal funding through the CMAQ program was identified, which requires that the FHWA consider the impacts of the Project in accordance with NEPA. A separate DEIS has been prepared pursuant to NEPA and SEQRA with the FHWA as the federal lead agency, and the Project is being reviewed in accordance with Section 106 of the National Historic Preservation Act. USACE, NPS, and OPRHP are serving as Cooperating Agencies for the NEPA review and have been advised of ongoing Section 106 consultation activities.
Comment 3: According to Section 1.4.1 of the SEQRA DEIS, Norfolk Southern is not required to obtain certain state and local permits that are pre-empted under federal law pertaining to rail facilities. The New York State Department of Environmental Conservation (NYSDEC) does not concede that any of the activities proposed by Norfolk Southern that would otherwise require a permit are pre-empted. Irrespective of whether or not the activities are pre-empted, the impacts from those activities should be evaluated by the SEQRA DEIS. To the extent any of the proposed activities are pre-empted, NYSDEC supports Norfolk Southern’s commitment, as indicated in the SEQRA DEIS, to comply with state and local regulations where feasible and appropriate. Based on Project information in the SEQRA DEIS, the following permits and regulations would apply to the Project: New York State Wild, Scenic and Recreational Rivers for the construction of a new bridge and approaches and retention of the existing bridge for non- rail use, because the Genesee River within Letchworth State Park is
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designated as a Scenic River by New York State under the Wild, Scenic and Recreational Rivers (WSRR) Act. New York State Protection of Waters for any construction or demolition activities that may disturb the beds or banks of the Genesee River. Section 401 Water Quality Certification, if a permit under Section 404 of the Clean Water Act is required from the U.S. Army Corps of Engineers for construction activities within federally regulated wetlands on the site or for work within the Genesee River. Coverage under an individual or blanket Section 401 Water Quality Certification may be required, depending on the specific work proposed. Compliance with the State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Construction Activities (GP- 0-10-001)—Compliance with this SPDES General Permit is required for any project that disturbs greater than one acre of land. (NYSDEC) Response: Chapter 4.1 of the SEQRA DEIS, “Process, Agency Coordination, and Public Participation,” discussed why federally regulated railroads operating in interstate commerce, including Norfolk Southern, are not subject to otherwise applicable local and state law and regulation. The chapter also provided a list of the permits that do apply to the Project and those that would apply if state and local regulations were not pre-empted. The permits cited in the comment are listed in that section of the SEQRA DEIS, which notes that the WSRR and Protection of Waters permits are pre-empted. The Project Sponsor nevertheless committed to meet the regulatory requirements subject to pre-emption where doing so would not interfere with rail operations. As a result, the SEQRA DEIS analyzed the potential impact on the Genesee River from the Project’s Build alternatives as would be required by the WSRR Act and Protection of Waters Act. For more information, see the response to Comment 28.
Comment 4: Please note that certain types of projects are not eligible for coverage under the SPDES General Permit and individual permits are required (see the eligibility criteria in Part 1.D of the General Permit). The following are not eligible: Linear transportation projects that will disturb over 2 acres of land on soil slope phases E or F (i.e., slopes of 25 percent or greater) in the U.S. Department of Agriculture county soil survey. We note that the soil surveys for Wyoming and Livingston Counties indicate the presence of steep slope soils at the existing and proposed bridge sites. The amount of disturbance to these steep slope soil units for both the construction and removal of the existing bridge should be quantified to determine eligibility for coverage under the SPDES General Permit. Projects that adversely affect a property on or eligible for listing on the National or State Registers of Historic Places, unless there are written agreements in place with OPRHP. As noted in the DEIS, Letchworth State Park is listed on the State and National Registers of Historic Places. We
6 Response to Comments Received on SEQRA DEIS
encourage NYSDOT to continue its consultation with OPRHP concerning the impacts of the Project on the existing bridge and Letchworth State Park. (NYSDEC) Response: In total, the Project would disturb an estimated 1.9 acres of soil that is classified as phases E or F in the U.S. Department of Agriculture county soil survey, less than the 2-acre threshold. Regarding effects to historic resources, NYSDOT and Norfolk Southern have been consulting with the OPRHP. As part of the current NEPA EIS process, NYSDOT and FHWA have been and will continue to consult with OPRHP and other Consulting Parties established in accordance with Section 106 of the National Historic Preservation Act regarding impacts and potential mitigation measures. The NEPA DEIS includes a draft Memorandum of Agreement (MOA) prepared as part of this consultation process that sets forth mitigation measures for the Project’s adverse effects on Letchworth State Park, which is listed on the State and National Registers of Historic Places.
4.2 Alternatives
Alternatives Considered but Eliminated
Alternative 2 – Repair / Retrofit Existing Bridge
Comment 5: Is fixing the old bridge not an option at all? (Poole) Response: As discussed in the SEQRA DEIS in Chapter 3, “Project Alternatives,” repairing and retrofitting the existing bridge for continued rail freight use is not a reasonable alternative. Because of the extent and severity of structural deficiencies, the necessary repairs and retrofits could not be feasibly undertaken while the bridge is open to rail traffic. Therefore, this alternative, referred to as Alternative 2 in the SEQRA DEIS, would require rail traffic to be rerouted for 18 months, depriving customers of the efficiencies of the Southern Tier route, including temporarily eliminating rail freight service to several locations and for several customers and requiring complex re-routing over other routes maintained by other railroads. Norfolk Southern estimates that this alternative would require an additional $22 million in operating costs and result in five-hour service delays during construction and the potential permanent loss of affected customers to other modes or other freight carriers. Moreover, Alternative 2 would not effectively extend the bridge’s useful life nor increase its load carrying capacity to the current rail freight standard, and thus would do little to improve the efficiency of rail operations. Even with repairs and retrofits, fatigue and corrosion would continue to degrade structural elements of the bridge, and there would continue to be substantial maintenance requirements following the retrofit. The maintenance requirements would accelerate over time as the structure continues to age. Alternative 2 does not meet the Project’s purpose and need, and was dismissed from further consideration.
Alternative 3 – New Bridge on Same Alignment
Comment 6: I suggest replacing the bridge as it is. (Pitzrick)
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Response: Removing the existing bridge and replacing it with a new bridge in the same location was evaluated in the SEQRA DEIS as Alternative 3. As discussed in the SEQRA DEIS in Chapter 3, “Project Alternatives,” this is not a reasonable alternative. Similar to an alternative that repairs and retrofits the existing bridge (discussed above in response to Comment 5), this alternative would require a complete shutdown of the Southern Tier route during the two- to three-year construction period (the length of the construction period would depend on the type of replacement bridge constructed). During this time, all rail freight would be routed to other rail lines, which would temporarily eliminate rail freight service to several locations and customers. As a result, Norfolk Southern estimates that this alternative would require an additional $22 million in operating costs and result in five-hour service delays during construction and the potential permanent loss of affected customers to other modes or other freight carriers. As such, Alternative 3 was determined to be unreasonable.
Alternative 5 – New Bridge on Parallel Alignment / Convey Existing Bridge
Comment 7: While we understand the need for a new bridge for rail freight service, we would like to see the existing bridge retained in place beside the new bridge. Removing the bridge would adversely affect this historic structure, and retaining it would avoid an adverse impact to the park’s history and identity. We would like to see the old bridge used for a pedestrian walkway, which, because of the expansive views it would provide, would be an amenity for park visitors, would improve pedestrian safety, and could result in local economic benefits as a new tourist attraction, similar to the Walkway Over the Hudson, a former rail bridge across the Hudson River between Poughkeepsie and Highland, NY. While this alternative might be visually less attractive than a single bridge, the benefits would outweigh that impact. (Avery, Bodah, Buck, Currier, Gow, Griggs, Howard, Hull, Ivers, Kliman, Livingston EMC, Mb, Peapus, Pitzrick, Poole, Prodrick, Redden, RTC, Schnurr, Sheats, Steitz, Thomas, Ulp, Walrath, Welker, Young) Response: The SEQRA DEIS described and evaluated an alternative that would retain the old bridge, with the new bridge immediately to its south. This alternative was referred to throughout the SEQRA DEIS as Alternative 5. As described in the SEQRA DEIS, this alternative would preserve the majority of the existing bridge, although some alterations to the bridge would be required to accommodate the proposed realignment of a segment of Park Road needed for construction of the new bridge. The SEQRA DEIS concluded that while Alternative 5 would avoid the loss of the bridge, which is a contributing element to historic Letchworth State Park (listed on the State and National Registers of Historic Places (SNRHP), it would also result in some negative impacts to historic resources and other park qualities. Specifically, Alternative 5 would be more obstructive to scenic views in the gorge than a single bridge, and the presence of two bridges would constitute an adverse visual impact. In addition, Alternative 5 would be less compatible with the Genesee River’s status as a protected river under the federal Genesee River Protection Act and as a New York State Scenic River, because of its adverse visual impacts and because it would not return the river
8 Response to Comments Received on SEQRA DEIS
to a free-flowing condition by removing the existing piers. Also, any alternative that retains the existing rail bridge requires identification of a suitable owner to take possession of the bridge from Norfolk Southern. The new owner would be responsible for making the necessary changes to use and maintain the bridge for non-rail use. The maintenance, repair, and future use of the existing bridge would be the responsibility of its future owner and subject to separate permits and approvals. Throughout the preparation and public review of the SEQRA DEIS as well as the subsequent scoping process for the NEPA DEIS, OPRHP, which is responsible for Letchworth State Park, has declined interest in acquiring the existing bridge. Over the past six years as the SEQRA DEIS and the NEPA/SEQRA DEIS have been prepared, including multiple public review periods during that time, no other entity has come forward offering to take responsibility for the bridge. Thus, an alternative suitable owner of the existing bridge that is able and willing to bear the costs of acquisition, rehabilitation, and maintenance has not been identified. For these reasons, Alternative 5 was determined to be unreasonable and has been eliminated from further consideration. The elimination of Alternative 5 from consideration is described in the Final Scoping Report that was prepared as part of the NEPA EIS process.
Comment 8: As noted in the DEIS under Alternative 5, OPRHP has stated that it would be financially infeasible for it to acquire, rehabilitate, and maintain the existing bridge as a pedestrian crossing. This situation has not changed. (OPRHP) Response: Comment noted.
Comment 9: The cost of maintaining the 1875 bridge will be minimal once heavy freight trains have stopped using it. The cost of installing a wooden plank deck (as is being done on the similar Rosendale Trestle, in Ulster County), or a concrete deck (as has successfully been installed on the Poughkeepsie Railroad Bridge in Ulster and Dutchess Counties) is relatively minimal, and could be entirely funded by the $1 million already budgeted by Norfolk Southern for the bridge’s demolition. Taxpayers should derive benefit from money given to Norfolk Southern, such as a walkway and tourist attraction. The cost of preparing and maintaining the old span for public use should be included in the estimated cost of building the new bridge. (Jordan, Pevsner) Response: As noted in the response to Comment 7, throughout the preparation and public review of the SEQRA DEIS as well as the subsequent scoping process for the NEPA DEIS, OPRHP, which is responsible for Letchworth State Park, has declined interest in acquiring the existing bridge. Over the past six years as the SEQRA DEIS and the NEPA/SEQRA DEIS have been prepared, including multiple public review periods during that time, no other entity has come forward offering to take responsibility for the bridge. Thus, an alternative suitable owner of the existing bridge that is able to bear the costs of acquisition, rehabilitation, and maintenance has not been identified.
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Comment 10: I understand that your organization is interested in soliciting ideas for the bridge. May I suggest that it becomes a seasonal weekend/bungee jumping bridge. Additionally, perhaps one leg of the support structure could be made into a man- made rock climbing wall as well. Also, perhaps a zip line from the top, past the falls and then land downstream somewhere. (Marcus) Response: No solicitation has been made seeking ideas for use of the existing bridge.
Comment 11: NYSDOT has made several conclusions that "stack the deck" against Alternative 5. One of these is related to the need to move Park Road. The SEQRA DEIS states that due to the proposed realignment of Park Road, the structural pier of the bridge on the west side of Park Road as well as the bridge deck spanning from the pier on the east side of Park Road to the west abutment would need to be removed. It should not be necessary to realign Park Road directly underneath the 1875 bridge in order to build the replacement bridge, which will be at least 60 feet to its south. If Norfolk Southern has any minor construction problems caused by the existing bridge's western structural pier and bridge deck, minor design changes should be made where the new bridge will cross Park Road to eliminate any alleged “problems.” Further, pedestrian access could be accomplished by stairways on the west side of the 1875 bridge even if the structural pier and bridge abutment must be removed. (Pevsner) Response: The SEQRA DEIS described the reasons that Park Road must be realigned for the Project. As discussed in Chapter 3, “Project Alternatives,” page 3-10 (under “Track and Roadbed”) and page 3-11 (under “Geotechnical”), based on geotechnical investigations of the rock in the gorge wall, it was determined that the bridge foundations must be anchored farther into the gorge wall than at the face. The cliff face will be excavated to reach competent rock, and the arch bridge will be anchored in that competent rock. The location in the rock where the foundations will be placed is directly in the existing path of Park Road. This can be seen by comparing Figure 3-3 (which shows existing conditions) to Figures 3-4 and 3-5 (which show the proposed bridge in Alternative 4 and Alternative 5). Minor design changes cannot alter the need to excavate the gorge into the path of the existing Park Road for the new bridge. However, the need to move Park Road does not eliminate Alternative 5 from consideration. As shown in Figure 3-5 of the SEQRA DEIS, it is possible to retain the existing bridge even with the roadway realigned. As described in the SEQRA DEIS (see the discussion on page 3-7 under Section 3.3.3), in Alternative 5, the spans west of the gorge would have to be removed, but the bridge tower at the top of the gorge could remain in place. However, as discussed in response to Comment 7 above, a suitable owner for the existing bridge that is able and willing to bear the costs of acquisition, rehabilitation, and maintenance has not been identified, and therefore Alternative 5 has been eliminated from further consideration.
Comment 12: The bridge is a historic resource that should be left in place regardless of cost. To avoid the adverse impact of a new arch bridge beside the old bridge, the new
10 Response to Comments Received on SEQRA DEIS
bridge should be another exact replica of the original bridge next to it rather than an arch design. (Caliber) Response: Regarding retaining the existing bridge, please see the response to Comment 7 above. Regarding the design of the new bridge, see the response to Comment 16. As discussed in the SEQRA DEIS in Chapter 3, “Project Alternatives,” and detailed in Appendix C to the SEQRA DEIS, a number of different designs were evaluated for the new bridge. When developing and evaluating the designs, key factors that were considered included limiting impacts to views of the gorge; therefore, a bridge type with a more slender form that could blend in with the natural geology was preferred. Construction of a trestle bridge (the same type as the existing bridge) was evaluated, but the difficulties in construction in the gorge and the large amount of steel required meant that this bridge type had the highest cost of all the types evaluated.
Alternative 7 – New Southern Alignment / Convey Existing Bridge
Comment 13: Was re-routing the train tracks around the Letchworth Gorge and constructing a new bridge elsewhere considered? (Dougherty, Comes) Response: In Chapter 3, “Project Alternatives,” the SEQRA DEIS described the alternatives considered and the reason that some were eliminated from further study. Two alternatives were considered that routed the Norfolk Southern right-of-way outside of Letchworth State Park—Alternative 6, which would have the new alignment and remove the old bridge, and Alternative 7, which would have the new alignment and retain the old bridge for conveyance to a suitable new owner. As discussed in the SEQRA DEIS, these alternatives would involve 4.5 miles of new rail right-of-way, with construction of one new, major bridge (approximately one mile long); construction of two, new short overpasses and other new grade-separated structures; and construction of three new at-grade crossings with local roadways, counter to New York State policy and Norfolk Southern policy regarding rail crossings. These alternatives would require acquisition of approximately 54 acres of land, and would traverse or be adjacent to agricultural land, residential and agricultural structures, and historic cemeteries. The requirements to implement Alternative 6 or 7, including rail and bridge infrastructure and property acquisition, would cost approximately five times more than Alternative 4 or 5. Public comments received during the SEQRA scoping process by the Citizens’ Advisory Committee overwhelmingly opposed Alternatives 6 and 7 for the same reasons. Therefore, these alternatives were eliminated from consideration. In addition, any alternative that retains the existing rail bridge for non-rail use requires identification of a suitable owner to take possession of the bridge from Norfolk Southern; however, no suitable owner has been identified. See the response to Comment 7.
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Alternative 4 – New Bridge on Parallel Alignment / Remove Existing Bridge
Comment 14: We understand the need to provide a modern rail crossing of the Genesee River on the Southern Tier route between Buffalo and Binghamton and the logic that has resulted in only two alternatives presently being considered in the SEQRA DEIS. Furthermore, because of the unfortunate inability to identify any suitable new owner that would acquire, rehabilitate, and maintain the existing historic bridge as a pedestrian crossing and the less than desirable visual impact that would result from the new bridge being located only 75 feet south of the existing bridge, we reluctantly concur with the selection of Alternative 4–new bridge on parallel alignment/remove existing bridge. While the loss of the historic Portageville Bridge and the impact on the landscape and viewshed is unfortunate, we believe that two bridges on a parallel alignment would be visually incompatible and would represent a greater negative impact on the landscape and viewshed. (FOGVG, Landmark Society, PTNY) Response: Comment noted.
Comment 15: I believe the best alternative is Alternative 4, which would remove the existing bridge and replace it with an arch bridge. The replacement bridge is attractive and opens views of the gorge. I don’t believe it is necessary or desirable to preserve the existing bridge. Two bridges together looks cluttered and isn’t aesthetically pleasing. To convert the old bridge to a safe pedestrian walkway over the gorge would require significant investment; then it would have to be maintained, requiring additional expense. (Cox, Ianiri, Kucko, Tyler, Vrooman, Myers, Walker) Response: Comment noted.
Comment 16: While demolishing an important historic resource, it is generally considered good preservation practice to replace what is being lost with something of equal or greater aesthetic, cultural, and architectural value. While the proposed replacement bridge is for the most part visually compatible with its surroundings, its design does nothing to mitigate or justify the loss of the historic Portageville Bridge. This highly sensitive, highly visible, and important setting demands a bridge of signature design, not the “off-the-shelf” design presented in the DEIS. It is imperative that the new bridge complement the natural beauty of the park for generations. Therefore, we request that a pre-eminent bridge designer be engaged in development of the final bridge design. While the proposed steel spandrel-braced deck arch structural form provides environmental and aesthetic benefits, the best talent should be employed here so that the new bridge will be a structure known not only for its functionality but also for the beauty of its design. (FOGVG, Landmark Society, PTNY) Response: Modjeski and Masters has been identified as the firm that will complete final design and lead construction of the new bridge once a final alternative is selected. Modjeski and Masters has extensive experience constructing bridges of this type and is recognized as an industry leader in the design of rail
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structures. The Project Sponsor, working with Modjeski and Masters, identified the arch bridge design after careful consideration and based on four main factors that affect the design of any bridge—geography, loadings, aesthetics, and cost. Based on those four factors, which include the bridge’s location in a historic park and in an area of natural and visual importance, three suitable bridge types for the replacement bridge were identified—a trestle, a continuous deck truss, and a spandrel braced arch. Other bridge configurations frequently used for highway crossings and which might be interpreted as having distinctive or signature profiles, such as a suspension bridge or a cable stayed bridge, are not suitable for North American freight rail loadings. Moreover, as compared to the trestle and deck truss styles, the selected arch design will enhance views through the gorge by eliminating the need for supports in the river bed and limited disturbance to the gorge walls and floor from cantilevered construction methods.
Comment 17: A pedestrian walkway should be included in the design of the new bridge. For generations the view of the gorge from the Portageville Bridge has attracted pedestrians, albeit illegally. The owners of the existing bridge recognized its value as a pedestrian amenity, and replaced the old wooden walkway and railing with steel decking and railings in the 1970s. Since the Project would result in the conversion of parkland within the most heavily used and scenic portion of the park and in the loss of the historic bridge, we request that a pedestrian walkway be incorporated in the design of the new bridge as compensation for these losses and to provide safe and legal access to the public. While the SEQRA DEIS states that the U.S. Department of Homeland Security advises against pedestrian access to new freight bridges, there is precedent for inclusion of pedestrian walkways in rail bridges across the country, including the Buffalo International Rail Bridge, the Potomac River Railroad Bridge in Harpers Ferry West Virginia, and the Metro-North bridge across the Saugatuck River in Connecticut. Perhaps access could be provided below the track level, where there would be no contact with the tracks themselves. Most new highway and bridge projects include adaptations for pedestrian and/or bicycle use. (FOGVG, PTNY, Landmark Society, Herzog) Response: As noted in the comment, the SEQRA DEIS (see Section 3.4.2 on page 3-9 of Chapter 3, “Alternatives”) described the reason why pedestrian access will not be provided on the new bridge. As noted, the U.S. Department of Homeland Security advises against pedestrian access to new freight bridges, given the importance of freight railways to the nation’s economy and security. For the same reasons, Norfolk Southern prohibits pedestrian access on its bridges. The bridges cited in the comment are not new bridges—the Buffalo International Rail Bridge opened in 1873 and includes a very short segment with a pedestrian walkway and vehicular roadway beside the rail tracks, as well as a much longer segment that provides access for rail only; the Potomac River Railroad Bridge consists of two bridges, one built in 1894 and the other in 1931; and the Amtrak/Metro-North bridge that carries Amtrak’s Northeast Corridor route and Metro-North’s New Haven Line across the Saugatuck River just east of Westport, CT, was built in 1905 and does not serve rail freight traffic.
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Please note that the steel decking and railings were installed on the existing bridge so that Norfolk Southern could properly and safely inspect the bridge and so that railroad employees could safely inspect disabled trains, if needed. They were not installed to accommodate public use, nor are they suitable for that use.
Comment 18: If possible, the Project should include pedestrian access near the bridge for the spectacular views currently available from the existing bridge. I support the concept of building an observation tower with the observation platform at the same elevation as the new bridge track level. I believe this is essential to retain some of the “allure” the bridge contributes to the gorge. This would also help keep visitors from venturing onto the new bridge. (Hoffman, Kucko) Response: Over the past six years, Norfolk Southern has been in consultation with OPRHP regarding the proposed design for the new rail bridge. During that time, one of the concepts discussed was provision of an observation tower on the western shore of the river in the park, potentially constructed from a portion of the former bridge. OPRHP concluded that a viewing platform or observation tower would adversely affect the aesthetics associated with views in the park and the concept was not pursued.
Comment 19: We would like to see a new pedestrian bridge in Letchworth State Park, either through reusing the old bridge or by providing pedestrian access on the new bridge. (Cunningham, Howard) Response: For a discussion of why the existing bridge cannot be retained as a pedestrian bridge, see response to Comment 7 above. For a discussion of why pedestrian access cannot be provided on the new bridge, see the response to Comment 17.
Comment 20: The DEIS states that under Alternative 4 it has not yet been determined whether the piers supporting the existing bridge will be removed. However, the visualizations for Alternative 4 show that the piers are removed from the river. It is OPRHP’s preference that, as indicated in the visualizations, the piers be removed from the river bottom. (OPRHP) Response: Following completion of the SEQRA DEIS, Alternative 4 was modified to include removal of the piers from the river.
Comment 21: Until we are able to see more specific plans, it is difficult to comment in any detail on a number of the mitigation items referenced in the DEIS (e.g., infrastructure drainage systems, replanting/restoration plans, stormwater). It is important that these items be developed in consultation with OPRHP. Historic, park, and natural resource impact mitigation measures need to be included in the FEIS. (OPRHP) Response: The SEQRA DEIS stated that the park-related design features and mitigation measures will be developed in coordination with OPRHP. Ongoing coordination with OPRHP has continued since completion of the SEQRA DEIS as part of the NEPA EIS process.
14 Response to Comments Received on SEQRA DEIS
Comment 22: When the bridge is complete, how much faster will the trains go? How much more trash will there be on the trains? And what about nuclear waste that will be going through on the trains? And what kind of clean up system is there just in case a train comes off the tracks with any nuclear waste? (Kemp) Response: As described in the SEQRA DEIS in Chapter 3, “Project Alternatives” (see page 3-8 under Engineering Considerations), Norfolk Southern anticipates a normal operating speed of 35 miles per hour for trains on the bridge. Under applicable federal law, the Project Sponsor and other carriers that use the bridge have a common carrier obligation that requires them to transport goods and other material, potentially including waste, in accordance with applicable regulations, and they will continue to do so after the Project is completed. The mix of commodities transported over the bridge is not anticipated to change as a result of the Project. Carriers that operate over the bridge will comply with applicable law that governs their obligations as common carriers, and any remediation that may be required as a result of a spill will be undertaken in accordance with federal law governing common carriers and their contractors.
Comment 23: Does the Project involve removing some of the curve in the road near the bridge? The current configuration creates a blind turn, doesn’t provide enough room for trucks, and isn’t safe. (Myers) Response: As part of the Project, Park Road in the vicinity of the bridge would be realigned and the curve straightened. This was depicted in the SEQRA DEIS in the plans for the Project—for example, see Figure 3-4 in Chapter 3, “Project Alternatives.”
Comment 24: The Project would be improved if the view of the bridge where Park Road passes beneath it were more rustic. (Myers) Response: The new bridge will be constructed using modern materials and construction techniques applicable to a structure of this type and size. Landscaping will be used to buffer views of the piers. The paint color used on the steel components of the bridge will be selected in consultation with OPRHP.
Comment 25: I object to the new bridge and the 1875 structure being called “the Portageville Bridge.” The proper and historic name is the Portage Bridge. Please note, Portageville and Portage are two separate areas. Portage is the area on the east side of the trestle in Livingston County, where the original Portage Station was located. There is an old New York State Highway sign showing that area as Portage situated within 500 feet of the bridge. So calling it the Portageville Bridge is both historically and geographically wrong. (Oulton) Response: The existing bridge has been historically referred to by different names, although it does not have an official name apart from a railroad identification number. Similarly, the new bridge will not have an official name, although it will have a railroad identification number. As to unofficial bridge names, the nomination form for Letchworth State Park’s listing on the National Register of Historic Places refers to the bridge as the “Portage Bridge,” “High Bridge,” and
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“Portage High Bridge.” The historic marker in the Highbridge Parking Area notes that it is the “Portage Bridge.” The Historic and Cultural Resources section of the SEQRA DEIS (Chapter 4.4.11) called it the "Portageville Bridge, which is also known as the Portage High Bridge.”
4.3 Economic Impacts
Comment 26: As regional rail operators, we support the project. The bridge provides a critical link to the rail network in western New York, Our area of operations receives a significant portion of its traffic via interchanges with Norfolk Southern Railway and Canadian Pacific Railway at Binghamton, and most of that traffic originates in the west and travels over the existing Portageville Bridge. Loss of the bridge would likely result in significant cost increases for our customers. Replacement will preserve an important rail route and will allow the bridge to handle heavier rail cars, the industry standard. This will result in lower net shipping costs for customers, resulting in an economic benefit throughout New York State. Also, any project that moves freight from truck to rail is environmentally friendly. (NYS&W, WNYPR) The Project is important to the regional economy, and is linked to efforts at opening up economic opportunities in western New York. The existing bridge needs to be reconstructed and replaced. The Southern Tier route is the link between the Buffalo area and the Port of New York and New Jersey, and maintaining this link is vital. We would like to create an international trade gateway in the Buffalo area, and this gateway would depend on such a link. (BNP, Reed) Response: Comment noted.
Comment 27: As the owner of a gas station and convenience store near the Portageville Entrance to the park, the summer period is when my business is profitable and busy. I am concerned about the loss of summer patrons for the three years when the Portageville Entrance is closed for construction. Also, will there be signage provided to direct people who are detoured around to the local businesses in Portageville? (Nugent) Response: During construction, some of the traffic bound for the park would still pass the Portageville Entrance en route to the Castile Entrance, depending on the visitors’ origin. However, the amount of traffic associated with park visitors and park employees would be reduced in comparison to conditions with the Portageville Entrance open. At the same time, however, there would be construction-related traffic, including construction workers and delivery vehicles, using this entrance all year-round. Signage will be provided that directs park visitors to the Castile Entrance from the Portageville Entrance, but no signage related to businesses is planned.
16 Response to Comments Received on SEQRA DEIS
4.4 Wild and Scenic Rivers
Comment 28: The Genesee River in Letchworth State Park is designated by New York State as a scenic river. Section 4.5-3-4 of the SEQRA DEIS indicates that if Alternative 5 is pursued and the existing bridge is proposed for non-rail use, obtaining the necessary WSRR permit from New York State would be the responsibility of the new bridge owner. To the extent that the SEQRA DEIS is being provided for the purposes of addressing both NEPA and SEQRA, the SEQRA record established in the DEIS would form the basis for any future review by the NYSDEC for a WSRR permit by potential future owners. As a result, there should be a thorough evaluation of the potential impacts to scenic qualities of the Genesee River under Alternative 5, that also addresses the need to preserve and restore the river’s natural scenic qualities under the requirements of New York State’s WSRR Act. Based on the visual impact analysis provided in the DEIS, it appears that Alternative 4 would minimize adverse impacts to the scenic qualities of the river corridor. This alternative would have the added benefit of removing existing piers from the river bed and enhancing the free flow conditions of the river. (NYSDEC) Response: As described in the response to Comment 7, following completion of the SEQRA DEIS, Alternative 5 was eliminated from further consideration. Alternative 4 is being evaluated under the NEPA EIS process. Please note that the SEQRA DEIS did include a detailed evaluation of the impacts associated with Alternative 5, which would have retained the existing bridge.
4.5 General Ecology and Wildlife Resources
Comment 29: No federally listed or proposed threatened or endangered species and/or designated critical habitat for listed species under the jurisdiction of NMFS are known to exist in the Genesee River and thus in the vicinity of the Project. NMFS does not intend to offer additional comments on the proposal. (NMFS) Response: Comment noted.
Comment 30: There are no known threatened, endangered, or candidate species located in Livingston or Wyoming Counties. No further coordination or consultation under the Endangered Species Act is required with the U.S. Fish and Wildlife Service (USFWS) at this time. Until the Project is complete, we recommend that you check the USFWS’s New York Field Office website to ensure that listed species’ presence/absence information for the Project is current. (USFWS) Response: Following completion of the SEQRA DEIS, the northern long-eared bat (Myotis septentrionalis) has been proposed by the USFWS as a candidate species for listing as endangered and is considered to have the potential to occur within Wyoming and Livingston Counties; consultation has been undertaken with USFWS during preparation of the NEPA/SEQRA DEIS regarding the Project’s potential for impacts on the northern long-eared bat.
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Comment 31: The USACE Buffalo District agrees that Alternatives 4 and 5 (the Build alternatives) meet the purpose and need for the Project and avoid or minimize environmental impacts to the waters of the U.S., including wetlands. Both Build alternatives propose filling 0.05 acres of wetland area, which will require a Section 404 permit from the USACE Buffalo District. Additionally, if the existing bridge piers are removed from the river as part of Alternative 4, a Section 10 permit from the USACE would also be required. As currently proposed, the Build alternatives would qualify under the current USACE Nationwide Permit program if all General and Regional Nationwide Permit Conditions can be met. These conditions include, but are not limited to, coordination with various agencies and/or obtaining approvals or authorization from the National Park Service (Section 7 of the National Wild and Scenic Rivers Act), the State Historic Preservation Office (Section 106 of the National Historic Preservation Act), and the New York State Department of Environmental Conservation (Section 401 Water Quality certification). (USACE) Response: Comment noted.
Comment 32: Natural resource impact mitigation is underrepresented in the DEIS. The Project includes considerable blasting and removal of rock along the escarpment on both sides of the Genesee River, loss of a small wetland, and removal of approximately 3 acres of forested habitat. The escarpment has been shown to harbor significant elements identified by scientists of the New York Natural Heritage Program and has “high ecological and conservation value.” As part of this Project, restoration efforts need to address the impact to these habitats. Appropriate mitigation for this potential significant adverse impact should be addressed within the park. (OPRHP) Response: As discussed in the SEQRA DEIS, NYSDOT and Norfolk Southern have been coordinating, and will continue to coordinate, with OPRHP regarding mitigation for impacts to natural resources.
Comment 33: There is discussion within the DEIS regarding removing invasive species and placing native plantings immediately post-construction. With such a large ground disturbance, however, invasive species impacts are likely to appear in subsequent years and some monitoring and follow-up control will be necessary. (OPRHP) Response: As noted in the comment, the SEQRA DEIS included a discussion of measures to be implemented after construction to address invasive species (see page 4.4.9-16 in Chapter 4.4.9, “General Ecology and Wildlife Resources”). The Project will incorporate good housekeeping measures, such as use of locally sourced topsoil and locally sourced plant material, to control the spread of invasive species. However, the appearance of invasive species in future years cannot be conclusively tied to construction of the Project; therefore, NYSDOT and Norfolk Southern cannot support a program of continued monitoring and follow-up control.
18 Response to Comments Received on SEQRA DEIS
4.6 Historic and Cultural Resources
Comment 34: The bridge is an important historic structure and its demolition should be avoided. The first choice should be fixing the old bridge for rail use, or if that is not an option, then the old bridge should be retained as a pedestrian walkway. (Poole) Response: The SEQRA DEIS described the existing bridge as a historic resource (see Chapter 4.4.11, “Historic and Cultural Resources”). As stated in that chapter, the New York State Historic Preservation Act (Section 14.09 of the New York State Parks, Recreation and Historic Preservation Law) requires that state agencies avoid or mitigate adverse impacts to historic resources to the fullest extent practicable, and to fully explore feasible and prudent alternatives that would avoid or mitigate adverse impacts to such properties. Chapter 3, “Project Alternatives” of the SEQRA DEIS evaluated the possibility of retaining the bridge for rail use or using it as a pedestrian walkway. Repair of the existing bridge for rail use was found not to be reasonable (see response to Comment 5). Retention of the existing bridge for use as a pedestrian walkway was also found not to be reasonable, as discussed in response to Comment 7.
Comment 35: NYSDOT has made several conclusions that "stack the deck" against Alternative 5. Two of these conclusions relate to impacts on historic resources: The DEIS states that construction of a new bridge alongside the existing bridge would adversely impact the historic character and setting of the Letchworth State Park gorge crossing, which has historically had only one rail bridge across the Genesee River. The viewshed looking south from the Glen Iris Inn, and from other local viewpoints, will be primarily of the 1875 bridge if it is not demolished. The new bridge will be largely obscured by the 1875 bridge. There will be nothing "historically" important about a 21st century replacement suspension railroad bridge and if views of the new bridge are blocked, this is a benefit. The DEIS states that Alternatives 4 and 5 have the potential to result in similar permanent adverse impacts to other contributing resources in Letchworth State Park, and that collectively, the proposed alterations to, and/or removal of, contributing resources of Letchworth State Park would result in an Adverse Impact on Letchworth State Park. This does not make sense to me when the ultimate “contributing resource” in Letchworth State Park is, and remains, the 1875 bridge. Stating that preservation of the 1875 bridge will constitute an "Adverse Impact on Letchworth State Park" does not seem to be consistent with the concept of historic preservation, and adaptive re-use for this purpose. (Pevsner) Response: Photosimulations, based on actual photographs taken in the park, are provided in the SEQRA DEIS to illustrate views toward the two bridges from the Upper/Middle Falls parking area and from Inspiration Point that would result under Alternative 5. As shown in these photosimulations (see Figures 4.4.13-20
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and 4.4.13-21 in Chapter 4.4.13, “Visual Resources”), while the new bridge would be behind the existing bridge, it would nonetheless remain clearly visible from those vantage points. The SEQRA DEIS included an evaluation of the Project’s effects on historic resources that was prepared in accordance with the New York State Historic Preservation Act of 1980, as set forth in Section 14.09 of the New York State Parks, Recreation and Historic Preservation Law. As described in the SEQRA DEIS in Chapter 4.4.11, “Historic and Cultural Resources,” Letchworth State Park as a whole is listed on the State and National Registers of Historic Places (S/NRHP). Its NRHP nomination includes 338 inventoried contributing resources, covering a wide range of time periods. Park elements that are identified as contributing resources include archaeological sites as well as built features, such as remaining portions of the Genesee Valley Canal, trails, roads, overlooks, culverts, stone walls, footbridges, and parking lots. The railroad bridge is also identified as a contributing resource. The evaluation provided in Chapter 4.4.11 concluded that both Build alternatives would result in adverse impacts on Letchworth State Park, a historic resource listed on the S/NRHP. Alternative 4 would result in an adverse impact to Letchworth State Park because of demolition of the existing bridge and modifications to other features that contribute to Letchworth State Park’s historic listing (including modifications to Park Road, the Highbridge Parking Area, segments of fieldstone walls, and portions of two trails). Alternative 5 would preserve the majority of the bridge, although some alterations to the bridge would be required to accommodate the proposed realignment of a segment of Park Road needed for construction of the new bridge. However, it would be more obstructive to scenic views in the gorge than a single bridge, and the presence of two bridges would constitute an adverse visual impact. Alternative 5 would require the same modifications to other features that contribute to Letchworth State Park’s historic listing as Alternative 4 (including modifications to Park Road, the Highbridge Parking Area, segments of fieldstone walls, and portions of two trails). These impacts were described in the SEQRA DEIS but are not the reason that Alternative 5 was eliminated. As noted in response to Comment 7, Alternative 5 has been eliminated from further consideration because no suitable entity has been identified that is willing and able to take responsibility for the existing bridge once it is no longer needed for rail use. NYSDOT has consulted, and will continue to consult, with OPRHP with respect to the adverse impacts that the Project would have on Letchworth State Park
Comment 36: The Bureau of Indian Affairs does not have any objections to the proposed undertaking. The Seneca Nation of Indians archaeologist has indicated that the tribe has no issues about the undertaking, and both the tribal archaeologist and the New York State Historic Preservation Officer agree that the Project will have no adverse effect to the Cascade House precontact and historic site. Since the Seneca Nation of Indians appears to have no concerns about the proposed undertaking, which is not on land held in trust by the U.S. government for a federally recognized Indian tribe, the BIA does not need to be involved in the
20 Response to Comments Received on SEQRA DEIS
National Historic Preservation Act Section 106 consultation process unless requested to do so by the Seneca Nation of Indians, the Tonawanda Band of Seneca Indians, or a federal agency. (BIA) Response: Comment noted.
Comment 37: The DEIS does not provide sufficient measures to mitigate the demolition of the bridge, a highly significant, National Register-listed resource. The DEIS states that NYSDOT has consulted with the New York State Historic Preservation Office (SHPO) to develop preliminary mitigation measures, which include documentation, an interpretive kiosk, salvage of bridge parts, and use of appropriate paint colors on the new bridge. While such mitigation measures are standard and important, they only provide a record of what is being lost and do not mitigate the impact that such a loss has on the landscape, the park as a whole, and those who use the park. We request that the Project also include a signature design for the new bridge, and pedestrian access on the new bridge. (Landmark Society) Response: NYSDOT and Norfolk Southern are continuing to work with OPRHP and other Consulting Parties established in accordance with Section 106 of the National Historic Preservation Act, including the Landmark Society, to develop appropriate mitigation measures for the Project’s adverse impacts on historic resources. These measures are designed not just to address the loss of the bridge, but to account for adverse impacts on Letchworth State Park, of which the Portageville Bridge is a contributing resource. With respect to the design of the bridge as a “signature design,” please see the response to Comment 16 above. With respect to pedestrian access on the new bridge, please see the response to Comment 17.
Comment 38: While NYSDOT and the SHPO have been working in consultation to develop preliminary mitigation measures, given the fact that the preliminary mitigation measures developed do not appear sufficient, The Landmark Society believes that a more open and public discussion is merited. Furthermore, by only referencing “preliminary” mitigation measures in the DEIS rather than concrete measures, NYSDOT does not provide the general public any opportunity to comment on the final mitigation measures. The Landmark Society requests that we be included in any mitigation discussions. (Landmark Society) Response: As part of the NEPA EIS process, the Landmark Society is participating as a Consulting Party in the review of the Project and development of mitigation measures for impacts to historic resources, being conducted in accordance with Section 106 of the National Historic Preservation Act.
4.7 Visual Resources
Comment 39: The proposed construction and placement of either steel mesh netting or shotcrete over the newly exposed rock face will result in significant visual intrusion into the scenic quality of the area. (OPRHP)
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Response: The SEQRA DEIS described the change in the appearance of the rock face in the assessment of visual resources provided in Chapter 4.4.13, “Visual Resources” (see page 4.4.13-7). As discussed there, in the area of the cliff face where the new bridge’s foundations will be located, some areas of newly excavated rock may be visible, but the bridge structure itself and the vegetation in the foreground would largely block those views. At this time, Norfolk Southern is proposing the use of drape netting rather than tinted shotcrete to stabilize the rock in the excavated areas. The bridge would be anchored within the gorge walls on either side of the river within excavated areas of the cliff. The rock walls within the excavated areas would be stabilized to prevent erosion with metal drape netting (a metal mesh curtain). The use of drape netting rather than shotcrete (sprayed concrete), as was used at the existing bridge, was selected to minimize the visual impact on the gorge. The drape netting is less visible and will allow vegetation to grow on the rock, which may eventually conceal the drape netting. The drape netting would be visible when viewed from directly across the river and locations nearby. Due to its location within the pockets that house the new bridge supports, the drape netting is unlikely to be visible when viewed from downriver (to the north) or upriver (to the south).
Comment 40: The visual resource assessment fails to consider the visual impacts of the Project for the users of the roadways and trails under the proposed bridge. Viewpoints C and D, located under or directly adjacent to the Project area, look out over the river. No assessments of views of the rock cut and abutment areas are conducted. Shotcrete on newly excavated rock faces will result in a texture visually incompatible with the existing gorge rock face. If stabilization is necessary, netting should be used. (Landmark Society) Response: As noted in response to Comment 39, drape netting is now proposed for rock stabilization; shotcrete is not proposed. People on the trails or Park Road passing beneath the bridge may have views of the excavated area where the drape netting is located when looking directly across the river, but the drape netting would be within an excavated area where the bridge span itself is located, so any such views would be predominantly obscured by the bridge structure.
Comment 41: Any of the likely methods to control or restrict access by pedestrians to the new bridge—gates, fencing, etc.—will have a significant negative visual impact on the park that is not represented in any of the plans and graphics developed to date. (Landmark Society) Response: Access control measures would be located on the approaches to the bridge rather than on the span itself, and therefore would not be visible in views of the bridge. As can be seen in the photos and photosimulations provided in the SEQRA DEIS (for example, see Figures 4.4.13-12 and 4.4.13-16 in Chapter 4.4.13, “Visual Resources”), the approaches to the bridge are and will be within the wooded area on either side of the bridge and not readily visible.
22 Response to Comments Received on SEQRA DEIS
4.8 Construction Impacts
Impacts on Ecological Resources during Construction
Comment 42: Bald eagles (Haliaeetus leucocephalus) are protected under the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and by the State of New York as a threatened species. As stated in the SEQRA DEIS, bald eagles are known to occur in the vicinity of the Project site and nest within the Project area. Project consultation with the USFWS related to potential impacts to the bald eagle began in fall 2012. Based on a phone discussion and information provided in the DEIS, we understand that blasting and pile driving will occur within a half mile of the bald eagle nest, and the activities are proposed over two breeding seasons. We also understand that increased vehicular traffic, dust, and noise may disturb the eagles during breeding season, which is generally January through August in New York. The level of disturbance will depend on the noise and dust levels, the distance between vehicular traffic and the eagle nest, and the tolerance of the eagles. Avoidance and minimization measures may reduce or eliminate disturbance to the eagles. The USFWS recommends that the Project follow the National Bald Eagle Management Guidelines found on our website and apply for a standard disturbance permit under the Bald and Golden Eagle Protection Act. The permit application should include avoidance and minimization measures that would be included in the construction design to reduce adverse impacts to bald eagles. Please also contact the local NYSDEC office to see if an Incidental Take Permit from NYSDEC is required under 6 NYCRR Part 182. (USFWS) Response: Potential impacts on bald eagles during the Project’s construction were described in the SEQRA DEIS in Chapter 4.5, “Construction Impacts,” page 4.5-16. As noted in the comment, the Project team began consultation with USFWS in fall 2012 related to the potential for impacts on the bald eagle during construction. USFWS is now a Cooperating Agency as part of the NEPA EIS process for the Project. An application for a federal Incidental Take Permit related to potential impacts to the bald eagles known to nest within ¼-mile of the Project site will be submitted for the Project. As part of the permit process, avoidance and minimization measures will be developed in consultation with USFWS to reduce adverse impacts to bald eagles during construction. Please see the response to Comment 43 regarding the need for a permit from NYSDEC.
Comment 43: As noted in the DEIS, an existing bald eagle nest site is located within the vicinity of the Project site. Bald eagles are listed in New York State as a threatened species, subject to the provisions of 6 NYCRR Part 182 concerning the take of state-listed, threatened species. An Incidental Take Permit for Endangered and Threatened Species of Fish and Wildlife under 6 NYCRR Part 182 may be required if it is applicable to this Project. (NYSDEC) Response: As discussed in response to Comment 3 above, as a federally regulated railroad operating in interstate commerce, Norfolk Southern is not subject to otherwise
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applicable local and state law and regulation. For this reason, no Incidental Take Permit is required from NYSDEC for potential impacts to bald eagles. However, an application will be submitted to the USFWS for a federal Incidental Take Permit related to potential impacts to bald eagles, as discussed in response to Comment 42.
Comment 44: Chapter 4.5 of the DEIS, “Construction Effects,” specifically Section 4.5-3-1, “Transportation Conditions,” indicates that truck access to the work zone on the west side will be via the Park Road using the Portageville Entrance. This will put increased truck traffic and associated visual and noise impacts on an area of road less than 300 feet from the existing bald eagle nest in the park. This type of disturbance is not addressed in the DEIS in Section 4.5-3-4. This is a new and significant source of traffic on this road in the vicinity of the nest and could impact bald eagles when nesting. (NYSDEC) Response: The SEQRA DEIS discussion of potential impacts to bald eagles provided in Chapter 4.5, “Construction Impacts,” did not describe potential impacts from traffic on the nearby roadway. It did mention a number of other potential impacts on bald eagles related to construction of the Project. The application to the USFWS for an Incidental Take Permit related to the bald eagles will address the potential impacts of construction traffic.
Comment 45: Blasting and pile driving are discussed in the SEQRA DEIS in Section 4.5-3-4 as possible negative impacts to eagles during the nesting period and we recommend that the Project sponsors communicate with USFWS and NYSDEC to develop mitigation measures to minimize these impacts. Further potential mitigation measures could include, among others, 1) restrictions to avoid blasting during the critical egg laying and incubation period in western New York, March 1–April 15; and 2) for any unavoidable blasting during this period, monitoring of eagle behavior after any blast and, if eagles flush from the nest, then postponement of blasting until after hatching. (NYSDEC) Response: An application for a federal Incidental Take Permit related to potential impacts to the bald eagles known to nest within ¼ mile of the Project site will be submitted for the Project. As part of the permit process, avoidance and minimization measures will be developed in consultation with USFWS to reduce adverse impacts to bald eagles during construction. Avoidance and mitigation measures will also be coordinated with NYSDEC.
Comment 46: One pathway for the spread of invasive species is through construction equipment. There needs to be monitoring to make sure that invasive species are not being introduced to the area. It should also be made clear that the invasive species control during the Project should include cleaning of construction equipment entering the park. Washing equipment at the previous work site or prior to arriving at the Letchworth site can be effective in reducing the introduction of invasives to the work site and in turn the potential for spread to other areas in the park. (OPRHP)
24 Response to Comments Received on SEQRA DEIS
Response: As described in the SEQRA DEIS in Chapter 4.5, “Construction Impacts” (page 4.5-24), the Project will incorporate good housekeeping measures, such as use of locally sourced topsoil and locally sourced plant material, to control the spread of invasive species. Washing construction equipment and deliveries entering the park would be logistically impractical.
Comment 47: The Project requires the clearing of approximately 3 acres of parkland forest. We request arrangements be made to transport hardwood timber taken from this area to a designated area within the park. This hardwood will be used within the state park system for maintenance and rehabilitation purposes. (OPRHP) Response: Arrangements to transport hardwood timber will be coordinated with OPRHP as requested.
Impacts to Parks and Recreational Resources during Construction
Comment 48: The Park Road from the Portageville Entrance, which will be closed to the public during construction and used by the railroad to access the bridge Project, is a light duty, seasonal road and it will suffer major damage during the period of construction from heavy construction vehicles. Norfolk Southern must be required to reconstruct this road, including new pavement, at the end of the Project. The stone entrance building, lawns, ornamental trees and shrubs, and stone culvert headwalls must be protected from damage. Damaged items must be repaired or replaced to the satisfaction of OPRHP. The lawns along the road must continue to be mowed during construction to prevent major work to restore the lawns before opening the road to the public. OPRHP must be compensated for the increased costs of lawn mowing, since lawn mowing personnel and equipment will have to travel an increased distance due to the closing of the road. (Vrooman) Response: As described in the SEQRA DEIS in Chapter 4.5, “Construction Impacts” (page 4.5-6), once construction is complete, the segment of Park Road from the Portageville Entrance to the construction site would be repaired as necessary before the road is reopened to the public. All park structures, such as the Portageville Entrance structure and stonewalls, would be protected during construction and repaired should damage occur. Regarding lawn mowing, the Project Sponsor will work with OPRHP to make suitable arrangements related to maintenance of lawns normally accessed via the closed Park Road.
Comment 49: The closing of the Portageville Entrance to the park will greatly increase traffic at the Castile Entrance. The Castile Entrance building can only accommodate one attendant to collect park entrance fees from motorists. Norfolk Southern should be required to pay for improvements to the building so that one additional attendant can work at this location. (Vrooman) Response: The SEQRA DEIS discussed this issue and described Norfolk Southern’s commitment to provide funding to improve the Castile Entrance. As stated on page 4.5-8, “To avoid congestion on busy days at the Castile Entrance because
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of the loss of entrance capacity at the Portageville Entrance during construction, Norfolk Southern will fund construction of a replacement entrance booth at the Castile Entrance with a two-lane entrance booth to provide greater capacity.”
Comment 50: New York State parks, including Letchworth State Park, are operating on very restrictive operating and capital budgets. The park will be impacted negatively in many ways during the period of bridge construction. Norfolk Southern should mitigate these negative impacts by providing funds to be used by OPRHP for the rehabilitation of park facilities. The funding should be sufficient to offset the negative impacts described in the DEIS. (Vrooman) Response: As discussed throughout the SEQRA DEIS, Norfolk Southern has been consulting, and will continue to consult, with OPRHP regarding appropriate mitigation measures for the Project’s impacts on the park.
Comment 51: During construction, the park management will be required to inform park users, including campers and day users, of the closing of the Portageville Entrance. The public must be made aware of the road closing to avoid late arrivals at the camping areas and other locations in the park. Norfolk Southern should help to inform the public of the road closing and alternate routes to access the park. (Vrooman) Response: During construction, detour signs will be prominently posted at and near the Portageville Entrance and along the detour route to the Castile Entrance.
Comment 52: We are concerned about the temporary inconvenience that may occur for the users of the long-distance Finger Lakes Trail and Genesee Valley Greenway when the trail must be closed beneath the bridge. People who don’t realize that the trail beneath the bridge is closed may have walked long distances from their car or starting point before coming on the closure. Therefore, we request that the bridge contractor provide notice to us at least 24 hours before trail closure, so that information can be posted to our website, and that the bridge contractor post signage at the parking area on Route 436 (immediately to the northwest of the NY 436 bridge over the Genesee River at Portageville) and at the Parade Grounds Road crossing (at the park’s Parade Grounds Entrance) indicating that the trail is closed and providing a map of a detour route around the closure. (FLTC, FOGVG, Hoffman) Response: The Project Sponsor will work with OPRHP to provide signage on trails to inform users of the status of trail closures or partial trail closure due to Project construction, including providing updates to such signage when subsequent phases of construction impact the trails.
Other Construction Impacts
Comment 53: The Town of Portage is concerned about the impacts of construction on Portageville Road, a dirt road that extends one mile from Route 436 to the rail right-of-way. According to our Highway Superintendent, the road does not have
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sufficient integrity to handle the increased traffic associated with construction of the bridge project and, more importantly, the additional weight of heavy construction vehicles. We are concerned that heavy construction vehicles will decimate the road and also that the approximately three cross culverts on this road may not have sufficient integrity to withstand the increased weight of heavy construction vehicles. We are more than willing to work with Norfolk Southern and NYSDOT in developing reasonable preventative measures concerning the use of this road. (Portage) Response: As described in the SEQRA DEIS in Chapter 4.5, “Construction Impacts” (page 4.5-6), once construction is complete, Portageville Road would be repaired as necessary. It is anticipated that a survey of the road’s condition would be taken prior to construction, in coordination with the local government officials. On the basis of this survey, once construction is complete, the contractor will either repair, have repaired, or fund the repair of the road to its pre-construction condition, in coordination with the local government.
4.9 Section 6(f) Conversion of Parkland
Comment 54: The DEIS provides detail regarding the conversion of 3.6 acres of parkland that must comply with the federal Land and Water Conservation Fund Act (LWCFA), but some clarification is needed. This relates to (1) the size of the lands to be converted, both permanent and temporary; (2) the ownership of the lands affected; and (3) the size of the replacement parcels. The acreage estimates of converted and replacement lands need to be consistent throughout the document, and the converted and replacement lands need to be clearly indicated and labeled on maps. It is unclear to OPRHP how the 2.1 acres identified in the DEIS as replacement lands is considered to be adequate replacement for the conversion of 3.6 acres of parkland. The LWCFA is clear with respect to replacement lands that substitute recreational properties must be of “at least equal fair market value and of reasonably equivalent usefulness and location.” Also, regarding the existing bridge piers in the river, it is OPRHP’s position that the piers should not be considered in the appraisal of replacement lands in the conversion process. Further, it is important to note that since it is the intention to use the FEIS as the environmental documentation for environmental impacts required under the LWCFA, it is imperative that the FEIS address all the elements required under LWCFA including appraisals, done to federal standards, of both the converted and replacement lands. (OPRHP) Response: At this time, a total of 2.33 acres of parkland is proposed for conversion (including 1.95 acres to be permanently converted and 0.38 acres to be converted for use during construction for more than six months) and 2.33 acres is proposed as replacement land. Updated information regarding the conversion of parkland will be provided in the NEPA/SEQRA DEIS. As noted in the comment, the FEIS can serve as the environmental documentation for environmental impacts as required under the LWCFA; however, the FEIS does not need to include the appraisals of land value. Proposals to the NPS for conversions of parkland protected by LWCFA must include a number of items,
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one of which is environmental documentation, and another of which is appraisal information. The Project Sponsor will continue to work with OPRHP to provide the documentation required to satisfy NPS’s requirements for Section 6(f) conversions.
Comment 55: I understand that a certain number of acres of Letchworth State Park will be permanently altered. This seems inconsistent with the legal agreement that the state had with the William P. Letchworth estate. (Ulp) Response: As described in the SEQRA DEIS, construction of a new bridge is essential for maintaining rail freight service through the Southern Tier of New York State, and a new bridge cannot be constructed without use of some parkland. As also described in the SEQR DEIS, Letchworth State Park is protected by the federal Land and Water Conservation Fund Act, which requires that any parkland used by the Project be replaced by parkland of reasonably equivalent usefulness and location. See the response to Comment 54.
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