District Court Judge Louise Flanagan ruled this morning in favor of the
North Carolina Department of Transportation and The Federal Highway
Administration in a lawsuit filed by environmental groups that would
have stopped the plan to replace the aging Herbert C. Bonner Bridge
over Oregon Inlet.
a concise 42-page opinion, Flanagan rejected each and every claim by
the plaintiffs that DOT and FWA had not followed procedures set forth
by the National Environmental Policy Act and other federal regulations
when it decided to build a new bridge parallel to the current span and
address issues on Highway 12 through Pea Island in a phased approach.
DOT and FWA issued a record of decision in December 2010 on its plan,
called the Parallel Bridge Corridor with N.C. 12 Transportation
July 2011, Defenders of Wildlife and the National Wildlife Refuge
Association, represented by the Southern Environmental Law Center,
filed suit against the state and federal agency.
Cape Hatteras Electric Cooperative was allowed to join the case as
defendant-intervenors because a longer 17.5 mile bridge in the Pamlico
Sound or ferries – the preferred alternative of the environmental
groups – would be prohibitively costly to the cooperative.
Currently its power transmission lines run under the Bonner Bridge.
motions for summary judgment, cross-motions, and other filings were
completed last November. Since then, the parties have been
waiting to hear from the judge as the clock ticked down on the use life
of the bridge, which was built in 1963,
The case was decided on the administrative record, which included more than 90,000 pages of studies over at least 20 years.
this case, defendants chose to replace a bridge reaching the end of its
service life with a parallel bridge, while leaving open future plans to
further construct later phases to Rodanthe,” Flanagan wrote. “Bonner
Bridge is nearing the end of its service life, and has been under
consideration and study for replacement since its structural integrity
first was questioned in 1990. The proposed bridge replacement would
connect to the existing transportation corridor, and provide access to
the Refuge. Therefore, the Parallel Bridge Corridor with NC 12
Transportation Management Plan alternative is a reasonable expenditure
independent of additional transportation improvements, which defendants
also plan to make in future phases.”
found that the defendants “did act reasonably when they chose to
consider construction from Bodie Island to Rodanthe in phases.”
“The court recognizes the unique geography present in this case is especially compelling,”
the judge wrote. “For all of the above reasons, the court finds that
the Bonner Bridge replacement was not improperly segmented.”
The judge also wrote that:
terminal groin on northern Hatteras Island was adequately considered
pursuant to NEPA as part of the status quo for a no-action alternative.
the plaintiffs’ arguments that the Pamlico Sound Bridge Corridor
Alternative was not adequately considered did not show “arbitrary and
capricious action” on the part of the defendants. Instead, the
court found that the defendants acted “rigorously and objectively” to
evaluate the alternative and rule it out on the basis of cost that it
could not be built in segments.
- That the defendants properly eliminated high-speed ferries from the alternatives.
the plaintiffs failed to show that the defendants rejected a “feasible
and prudent” alternative project design and that the U.S. Department of
Transportation secretary failed to consider such an alternative under
Section 4(F) of the Department of Transportation Act.
the Parallel Bridge Corridor with N.C. 12 Transportation Management
Plan alternative “will cause the least overall harm because it will
provide the best opportunity to mitigate direct, indirect and
cumulative impacts in the Project area.”
assert that the phased method allows FHWA to select road maintenance
methods that will harm the Refuge later in the process. However, FHWA’s
reasoned determination to defer the selection of specific elements of
an NC.. 12 Transportation Management Plan is not an avoidance of
planning to minimize harm to the Refuge. Rather, it is a practical
means of addressing the changing natural conditions in the Project
area. Therefore, FHWA’s findings were not arbitrary and capricious, and
the court finds that FHWA has satisfied the requirements of Section
Secretary of Transportation Tony Tata said in an afternoon news
conference that today “is truly a great day for residents and millions
of Outer Banks visitors” and “a historic day for North Carolina.”
“The NCDOT cares about the economy, the environmental impact of what we do, and the people,” he said.
Tata pledged that DOT was ready to move forward “as quickly as possible.”
awarded a $215.8 million contract to PCL Civil Constructors Inc. in
August 2011 for the design and construction of a new bridge. Design
work began immediately and construction of the new bridge was
originally set to begin in early 2013.
Work has been on hold, pending the outcome of the litigation.
still must resolve a petition that SELC filed with the North Carolina
Department of Environment and Natural Resources over a Major CAMA
Permit to build the bridge.
There will be a hearing before an administrative law judge on the petition, but a date has not been set yet.
Speculation has been that the outcome of this petition would be heavily influenced by Judge Flanagan’s decision.
SELC posted no comment on its website today. The plaintiffs have 60 days to appeal the ruling.
project to replace the bridge is expected to take about three years,
which will be pushing its lifespan. However, DOT officials say
the bridge is safe, is regularly inspected, and will undergo routine
maintenance this fall and winter – and whenever needed until there is a
evening at a regularly scheduled meeting, the members of the Dare
County Board of Commissioners expressed their elation at the ruling.
“If you continue to fight the good fight, eventually you’ll win,” said Commissioner Allen Burrus of Hatteras Island.
chairman Warren Judge urged everyone – residents and visitors – to send
e-mails and make calls to SELC every day, urging the group and its
clients not to pursue
FOR MORE INFORMATION
Click here to read Judge Flanagan’s ruling.
Click here to see a visualization of the new Herbert C. Bonner Bridge.
Read more about the history of the Bonner Bridge and challenges to building a new one.