February 7, 2017

Rodanthe Bridge Lawsuit Raises Concerns About Bonner Project

BY CATHERINE KOZAK


It is unclear whether a recent lawsuit challenging construction of the “jug-handle” bridge in Rodanthe could potentially delay replacement of the Bonner Bridge.

According to an attorney representing plaintiffs Save Our Sound OBX Inc., the complaint filed on Feb. 2 against the state Department of Transportation and the Federal Highway Administration would not affect the work already begun on the new bridge over Oregon Inlet, the first of multiple improvements planned on the N.C. 12 transportation corridor.

“We’re not asking for any injunctive relief as it pertains to Phase I, which is already underway,” Bryson Smith, associate attorney at Gibson, Dunn & Crutcher in Washington, D.C., said Monday, referring to the Bonner replacement.

Smith contends that it was “a foregone conclusion” that the nearly $200 million jug-handle bridge would be the chosen alternative and that other less intrusive options were not properly reviewed as the law required. He said that a ruling on the merits of the case could take several months.

“We’re asking the court to take an objective look at all the environmental options,” Smith said. “I think it’s important that the agencies comply with the law and get it right.”

The individual plaintiffs, Thomas Aschmoneit, Richard Ayella, David Hadley, Mark Haines , Jer Mehta and Glenn Stevens, contend that the proposed 2.4-mile bridge, approved in December, would negatively impact their property and their access to the Pamlico Sound. The design, which curves out into the sound between the south end of Pea Island National Wildlife Refuge and the north end of Rodanthe, would be attached to Highway 12 on both ends, similar to a handle.

A group of residents, most of whom are part of the 25-member SOS, protested the jug-handle alternative in June at a public information meeting held in Rodanthe by NCDOT.

In the lawsuit, the attorneys for SOS argue that the bridge’s Record of Decision – the final step in the review process - was unlawful because the required extensive environmental review was not done. The more in-depth review would provide “fair and full consideration” of additional alternatives, including beach nourishment and/or a bridge within the existing highway easement.

Smith said that the DOT used outdated data to project beach nourishment results, and failed to issue a document on the findings of significant impacts. 

But Derb Carter, director of the Southern Environmental Law Center in Chapel Hill, said that the Bonner Bridge replacement project is being pulled into the SOS lawsuit, since its permits depend on the final environmental review in question.  One of the demands in the SOS complaint is that DOT cannot issue any permits or other approvals based on the 2008 and 2016 environmental documents done for the Bonner and Rodanthe projects.

“It interjects a whole lot of uncertainty on a project that was moving forward,” he said.

Carter and the SELC are well-acquainted with the N.C 12 and Bonner replacement plans, having settled a 4-year-old lawsuit in 2015 that had challenged the project, asserting it could cause harm to the environment in fragile and eroding Pea Island.

Part of the agreement between the conservation groups SELC represented and the DOT centered on keeping the smaller bridges’ construction outside of the refuge. 

Still, Carter said that the agencies  proceeded through the required review process and reached a rare unanimous agreement on the least environmentally damaging alternative in Rodanthe.  He also disputed the SOS claim that the settlement predetermined the chosen option. In fact, he said, the settlement was very detailed and subjected to the normal approval process.

“Remember, the Bonner Bridge project was not just building Bonner Bridge, or replacing it,” he said. “It was the entire transportation corridor.”

It is unlikely, Carter said, that the court would agree with the plaintiffs’ contention that each project phase is separate.  

“We don’t think they have merit,” he said, “and we would encourage the agencies to proceed.” 

The Rodanthe bridge is currently in the design phase, said DOT spokesperson Nicole Meister. Construction is scheduled to start in about a year and be completed in 2020. Meister declined to comment on the lawsuit.  

What is not at issue, everyone seems to agree, is that something needs to be done to address the ever-more frequent problem with overwash at S-curves, an area just north of Rodanthe with the highest beach erosion rate on the Outer Banks. When Hurricane Irene blew through in 2011, the highway there was breached, along with another section further north in the refuge.  Nearly every tropical and northeast blow since then has pushed water over the highway.  

Beach nourishment has since been done by Dare County at S-curves as a temporary measure to protect the road, but it was found to be impractical for the long term because of the high erosion rate. Another potential option, a raised highway in the right of way, was determined to be too exposed to the ocean.  

Although agencies agreed that the jug-handle option on the sound side was the best of the alternatives, it does not come without consequences for the local community.
 Numerous private properties and businesses, including a campground, private residences and retail shops, would be lost. Some members of SOS also say it would ruin soundfront access for kiteboarders and kiteboard businesses.

For Hatteras realtor Beth Midgett, the Rodanthe bridge also has its downside: the family’s real estate office in Rodanthe would lose accessibility to the highway. But a far worse situation to her is if the lawsuit ended up stopping the Bonner replacement project.

For years, Midgett led a grassroots effort by mothers and islanders who demanded that the deteriorating Oregon Inlet bridge be replaced.

If the SOS lawsuit jeopardizes the Bonner project as well as the Rodanthe project, she said, “then we have huge, huge issues.” 

A breach of the road at Mirlo Beach would cut off access to the rest of the island for residents and tourists, she said, but it would be a dangerous nightmare if progress on the Bonner project was slowed – or stopped.

“When they first started up in June, I thought they were playing with fire,” Midgett said of the SOS.

Every one of the options in Rodanthe would affect some property owners, she said. But the DOT had looked thoroughly at every possibility.

“It is an issue of the greater good,” Midgett said. “The whole thing is, I think one needs to be very careful not to cut off their nose to spite their face.”

            
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