Court Demands Long Term Plan for NC 12 on the Outer Banks

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Appellate Court sends case back to district court for reconsideration

CHAPEL HILL, N.C. (Wednesday, August 6) – The U.S. Court of Appeals for the Fourth Circuit today ruled that the NC Department of Transportation and Federal Highway Administration have a duty to provide and disclose to the public a long-term plan that analyzes the impacts of the transportation route through the Pea Island National Wildlife Refuge between Oregon Inlet to the village of Rodanthe. The transportation agencies must minimize harm to the refuge and fully assess alternative solutions to NCDOT’s current plan to build and maintain a patchwork of bridges and highways in the Atlantic Ocean’s tidal zone and surf for the next 50 years. The decision by the appeals court reverses the decision of the U.S. District Court for the Eastern District of North Carolina and returns the case for reconsideration consistent with the appellate court ruling.

As the court made clear in its decision, the Bonner Bridge alone “is essentially worthless without a means of conveying motorists from its southern terminus to the Village of Rodanthe, which is the northernmost point where the residents, businesses, and services on Hatteras Island are located.” The court went on to hold that the agencies must “select the alternative” for that route “that causes the least overall harm to the Refuge.”

“Today’s court decision affirms that NCDOT must protect national treasures like Pea Island National Wildlife Refuge while it addresses the unreliability of this stretch of NC 12,” said Julie Youngman, senior attorney at the Southern Environmental Law Center, who represented Defenders of Wildlife and the National Wildlife Refuge Association in the appeal before the court. “After decades of NCDOT’s single-minded determination to keep throwing taxpayer money into the sea along with NC 12 as it washes into the ocean, the court’s ruling gives NCDOT an opportunity to get things right and provide a safe, reliable route that will serve the state for the next 50 years.”

The proposed NCDOT project would replace the existing Bonner Bridge over Oregon Inlet without a long-term plan to address the frequent washouts, breaches, and floods along the twelve miles of NC 12 running through the Pea Island National Wildlife Refuge, the only access road to the villages of Hatteras Island. Storms and high tides regularly over wash NC 12 and cut off access to the mainland for residents, businesses and tourists for weeks at a time. As proposed, NCDOT’s plan fails to fulfill the project’s purpose, as stated by NCDOT and confirmed today by the court: “In light of the impact of storm events such as these, merely replacing the Bonner Bridge would not achieve the central purpose of the Project, which is to “[p]rovide a new means of access from Bodie Island to Hatteras Island for its residents, businesses, services, and tourists prior to the end of the Bonner Bridge’s service life.””

"Despite all the back and forth and legal wrangling, the fact remains that the Pamlico Sound bridge option we advocate for is better and more cost-effective," says Mike Senatore, director of conservation law at Defenders of Wildlife. "It insulates the community from the ongoing costs of rebuilding NC 12 after reoccurring storms while also protecting the area’s natural heritage. And it is the only option that will still be there for years to come, while thanks to erosion patterns, the short bridge local politicians favor will one day literally be a bridge to nowhere.” Despite the predictable migration of the narrow northern portion of Hatteras Island, NCDOT has proposed a short-term patchwork of new bridges and road segments within the refuge, with no long-term plan. NCDOT admits that the island is eroding and that the bridges it wants to build within the wildlife refuge, each several miles in length along the beachfront NC 12, will be located on the beach and then in the sea in a few years, harming both recreation and wildlife habitat on the refuge’s beaches.

“We are delighted to see the court recognize the importance of this special haven for wildlife and wildlife enthusiasts,” said Desiree Sorenson-Groves of the National Wildlife Refuge Association. “The opinion correctly holds the transportation agencies accountable in their duty to protect and preserve one of North Carolina’s treasures: the Pea Island National Wildlife Refuge.”

Representing Defenders of Wildlife and the National Wildlife Refuge Association, the Southern Environmental Law Center has argued that NCDOT should disclose its plans for building and funding the entire project — including the several bridges currently proposed as well as additional segments of NC 12 within the wildlife refuge — rather than considering just a single replacement bridge over the inlet in isolation. The conservation groups argued that NCDOT also violated federal law by failing to fairly consider better alternatives to its plan and by failing to ensure that the selected plan would minimize harm to the refuge for both beachgoers and wildlife.

A federal law referred to as Section 4(f) of the federal Transportation Act of 1966 prohibits highway construction that will harm a wildlife refuge if there is another reasonable alternative that will not harm the refuge or will cause less overall harm. Conservation groups argued that by not publicly planning the project’s later phases to maintain NC 12 or looking at a full suite of less damaging alternatives, NCDOT and the Federal Highway Administration had failed in their responsibility to minimize harm to Pea Island National Wildlife Refuge.

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