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December 11, 2013

Lawyers say Outer Banks bridge project violates federal laws

The Southern Environmental Law Center, representing two conservation groups, filed a legal brief that lays out its arguments for stopping a state Department of Transportation project to replace the aging Bonner Bridge in Dare County.

Lawyers for two conservation groups say in a new appellate court brief that the state’s plan to replace the Bonner Bridge violates federal laws that should protect Outer Banks wildlife. The state should let the public decide how North Carolina will secure its fragile highway all the way from Bodie Island to Rodanthe, the brief said.

The groups, represented by the Southern Environmental Law Center, argue that state transportation officials had the right idea in 2003 when they leaned toward building a 17-mile bridge to carry N.C. 12 across Oregon Inlet and out into Pamlico Sound, bypassing the Pea Island National Wildlife Refuge.

They say a federal judge was wrong when she ruled in September that it was OK instead for the state Department of Transportation to build a 2.8-mile bridge parallel to the old one, across the inlet and into the refuge. That would postpone decisions about how to handle more than 13 miles of N.C. 12 in the future, they say – and it would preclude any chance to move the road out of the refuge.

"(DOT) decided to build a bridge that will be useless without an access road and additional bridges being maintained and built through an eroding, unstable section of Hatteras Island and the Pea Island National Wildlife Refuge," lawyers for the SELC wrote in an 81-page brief filed this week with the 4th U.S. Circuit Court of Appeals in Richmond, Va. “(DOT) unlawfully segmented the project ... to avoid considering the serious environmental impacts of keeping access to the bridge open through the refuge.”

The nonprofit law firm represents Defenders of Wildlife and the National Wildlife Refuge Association in an attempt to stop DOT from breaking ground on a $215.8 million contract awarded in 2011 to build the new Oregon Inlet bridge. After DOT closed the 50-year-old Bonner Bridge last week for emergency repairs, state and coastal leaders accused SELC lawyers of jeopardizing public safety and the Outer Banks economy by blocking construction of a new bridge.

Meanwhile, DOT has awarded a separate contract for a 2.5-mile bridge that will lift an erosion-prone section of N.C. 12 high above the dunes as it passes through the refuge. The bridge will keep the highway on dry land now – but transportation engineers acknowledge that it will be standing in the turbulent surf within 30 years, as the islands continue their natural westward migration. Plans for another bridge, to elevate a long stretch of N.C. 12 near Rodanthe, will be aired at public meetings on the Outer Banks next month.

‘Reaching the end’

U.S. District Judge Louise Flanagan noted in her September ruling on the new Oregon Inlet structure that DOT would be “replacing a bridge that is reaching the end of its service life.” That makes the new inlet bridge project sufficiently useful to be approved under federal environmental law, she said, separate from DOT’s need in the future to make more repairs on N.C. 12.

The SELC brief said Flanagan was wrong to reach that conclusion. It also said she should have given more weight to a federal law that would encourage DOT to find a way to get the highway out of the wildlife refuge.

DOT lawyers won’t file their written response until January. Judges on the appellate court in Richmond are expected to hear oral arguments in the spring. But many of the arguments were debated informally this week by lawyers and officials on both sides – in news releases and news conferences, broadcast talk shows and interviews.

The dispute has dredged up a complicated history that is told different ways by opposing sides. DOT officials abandoned the idea of a simple Bonner Bridge replacement in 2003, but they reversed course after the 17-mile Pamlico Sound option was opposed by Dare County leaders including Marc Basnight, then the state Senate president.

Jim Trogdon, who resigned this fall as DOT’s chief deputy secretary to work for a private engineering firm, contacted reporters this week to dispute claims by the SELC that DOT planned to build the 17-mile Pamlico Sound bridge and could have opened it for traffic several years ago.

The environmental lawyers base this assertion on a one-page construction timetable obtained from DOT, dated in 2003, that had construction starting in 2006 and finished in 2010. Trogdon said the dates were “extremely optimistic, at best” and DOT had never committed itself to a project schedule for the long bridge.

‘It’s ironic’

Flanagan, in her September ruling, accepted DOT’s assertion that the state would have been unable to come up with more than $1 billion to build one of the longest bridges in the world. SELC lawyers say that the cost is unclear and that DOT never gave enough thought to raising some of the money from tolls or bonds.

Trogdon said a long bridge through a shallow sound and sensitive wetlands would run afoul of the Clean Water Act and cause far more environmental harm than keeping N.C. 12 where it is now, in the refuge.

“It’s ironic that environmental plaintiffs support an alternative that violates the Clean Water Act,” Trogdon said.

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