Federal funding cut, state law challenged on NC 540 Red Route

Until state-outlawed Red Route is an option, the feds won’t fund it

bsiceloff@newsobserver.comDecember 11, 2012 

RALEIGH

— Federal regulators have cut off funding for a proposed six-lane toll road across southern Wake County, after rejecting arguments that they could approve it without studying an unpopular alternative route through Garner that has been outlawed by the General Assembly.

The road project may be dead unless state law is changed.

Prodded by the Garner Town Council, the legislature voted last year to prohibit the state Department of Transportation from even studying the so-called Red Route for the Triangle Expressway. It would bulldoze Garner homes, churches, parks and businesses to extend the 540 Outer Loop from Holly Springs to Interstate 40.

State and local leaders favor the so-called Orange Route, proposed in the 1990s, which runs south of Garner. The Orange Route would hurt only a few homes, but it would trample sensitive wetlands that provide habitat for the endangered dwarf wedge mussel.

DOT and Wake officials argued in August that federal law justified dropping the Red Route on grounds that it would hurt economic development and long-range plans in Garner. They drew new colored lines on the map – the Plum and Lilac routes – and asked regulators to consider them instead.

No dice, the Federal Highway Administration and the U.S. Army Corps of Engineers replied. In a Dec. 7 letter, the top North Carolina officials for both agencies reaffirmed previous arguments that they cannot legally evaluate the Orange Route without comparing it to another route expected to cause less environmental harm.

“In the evaluation of alternatives, the Corps continues to believe that in regards to streams and wetlands, the (Red) Alternative appears to be a less environmentally damaging alternative and should be included as an alternative to be analyzed in the Draft Environmental Statement,” wrote John F. Sullivan of the highway agency and Col. Steven A. Baker of the Corps office in Wilmington.

Before that can happen, DOT will need the blessings of Garner officials and the legislature.

“There is a conflict now between the state’s law and what the federal government is telling us to do,” said Eric Midkiff, a DOT project development engineer overseeing the project. “The state law will need to be addressed to allow us to go forward with this plan outlined in the letter.”

Sullivan and Baker said the Red and Orange options would be compared not just on environmental grounds but also for their impact on communities, recreation, homes and businesses and other areas that include “the needs and welfare of the people.”

DOT has spent $4.5 million on project plans so far, Midkiff said, with the Federal Highway Administration reimbursing the state for 80 percent of the cost. Sullivan and Baker said this funding is being cut off because the state is not providing the required comparative studies.

“Our withdrawal does not prevent the project from being re-initiated in the future” when DOT can show “that all constraints have been relieved to allow compliance” with environmental laws, Sullivan and Baker said.

Unwavering in Garner

Garner Mayor Ronnie Williams said he was disappointed by their decision. He said Garner would be unlikely to support a change in the state law barring the Red Route, unless there’s a guarantee of other alternatives being considered as well.

“The legislation won’t allow the (Red Route) to be studied, and we’re going to stand by that,” Williams said.

Kym Hunter, a Chapel Hill-based lawyer for the Southern Environmental Law Center, said Sullivan and Baker were right to insist on a full comparison of the Red and Orange routes. Her organization previously has forced delays in two other state toll-road projects in Gaston and Union counties.

“We just don’t see any way for them to comply with federal law while the state law is in place,” Hunter said. “It didn’t just prohibit the route, it prohibited studying the route. So I think state law maybe overreached a little bit here.”

Midkiff said the DOT won’t give up on the 540 Outer Loop project.

“We’re going to figure out a way past this,” he said. “The letter has provided us guidance on how to do that, and now we just need to work with our partners to make it happen.”

Staff writer Kyle Jahner contributed.

Siceloff: 919-829-4527 or blogs.newsobserver.com/crosstown or twitter.com/Road_Worrier/

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