The state Department of Transportation cannot build its 2.8-mile replacement for the deteriorating Oregon Inlet bridge unless it proves there’s no way to avoid damaging an Outer Banks national wildlife refuge, a federal appellate court ruled Wednesday.
A three-judge panel of the 4th U.S. Circuit Court of Appeals overturned part of a September 2013 lower court ruling that sided with DOT in a lawsuit filed by environmental groups. The three judges sent the case back to the U.S. Eastern District Court in North Carolina.
The unanimous ruling could mean more years of delay for the state’s plans to replace the 51-year-old Bonner Bridge, a crucial N.C. 12 link between Hatteras Island and the mainland. DOT awarded a $215.8 million contract for a new bridge in August 2011, but construction has been blocked since then by the federal court lawsuit and a parallel challenge in state courts.
DOT won a partial victory Wednesday when the 4th Circuit panel rejected an argument by the Southern Environmental Law Center that DOT and the Federal Highway Administration violated federal environmental law against breaking into several phases a big project that must be planned as a whole. DOT can stick with its preference to build a bridge now while postponing decisions on how to protect N.C. 12 from ocean overwash and other damage south of Oregon Inlet, the appellate judges said.
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But the panel agreed with the environmentalists that DOT and the highway administration must prove they are not violating a federal transportation law by improperly rejecting alternate bridge routes that would avoid the Pea Island National Wildlife Refuge. U.S. District Court Judge Louise Flanagan of North Carolina was wrong, the panel said, when she ruled that a special exemption freed DOT from complying with the transportation law requirement.
Bonner Bridge, which carries 10,000 cars a day during the busy summer tourist season, was designed to last 30 years after its opening in 1963. Salt air has corroded its steel and concrete, and the turbulent waters of Oregon Inlet frequently undermine its support columns. The state has spent $64 million on repairs and maintenance in the past 20 years.
DOT closed the bridge for two weeks in December after erosion undermined some bridge supports. Gov. Pat McCrory and DOT Secretary Tony Tata excoriated the Southern Environmental Law Center then, blaming the group for delaying the new bridge.
Longer bridge rejected
Tata said in a news release Wednesday that the 4th Circuit decision shows that DOT has complied with federal environmental laws.
“As we review and determine the best way to proceed on other elements of the ruling, which may further delay the project, we are encouraged that our state is one step closer to replacing the Bonner Bridge,” Tata said.
Mike Charbonneau, a DOT deputy secretary, said he hoped the Southern Environmental Law Center “will drop its remaining lawsuits so the state can move forward” on the bridge project.
The bridge carries N.C. 12 south from Bodie Island across Oregon Inlet and into the Pea Island refuge. The Southern Environmental Law Center, representing Defenders of Wildlife and the National Wildlife Refuge Association, has argued in favor of a 17.5-mile bridge that would curve across Pamlico Sound, bypassing the refuge and linking Bodie Island directly to the Hatteras Island village of Rodanthe.
DOT contended that the longer bridge was not feasible, partly because of its expected cost. Derb Carter, who heads the Southern Environmental Law Center’s North Carolina office in Chapel Hill, said DOT will be required to reconsider the alternatives to its preferred parallel bridge.
“Even if they show that the long bridge is not feasible, under the law you have to exhaust all possible planning on how you’re going to minimize or avoid any impacts to the refuge,” Carter said.
Although Flanagan was wrong when she ruled that DOT qualified for an exemption from the requirement to eliminate or minimize harm to the wildlife refuge, the appellate judges said, she nevertheless determined that DOT’s choice “will cause the least overall harm.” New hearings will be scheduled in federal district court for further examination.
The state Office of Administrative Hearings, which is considering a related challenge to permits issued by the N.C. Coastal Resources Commission for the bridge project, has its next hearing in October.
Circuit Judge James A. Wynn Jr., a former N.C. Supreme Court justice, wrote the opinion. He was joined by Circuit Judge Allyson K. Duncan, also a North Carolinian, and J. Michelle Childs, a federal district court judge from South Carolina.