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
“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
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
“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Smith said that the DOT used outdated data to project beach nourishment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
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
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.”