Sometimes there are winners and sometimes there are losers and sometimes it’s impossible to tell who won and who lost. That last scenario may be the case with ruling that was just handed down by the Fourth US Appellate Court in the Bonner Bridge appeal pitting NCDOT against the Southern Environmental Law Center.
In a rather confusing ruling, the Court said “ . . . we affirm the district court’s determination that Defendants complied with NEPA, reverse the district court’s determination that a special exception frees Defendants from complying with Section 4(f), and remand for further proceedings.”
What that means is the big question that hung over everything is answered—yes, NCDOT and the Federal Highway Administration did comply with the law in creating the environmental impact statements that will allow the project to go forward.
The fly in the ointment—and in this case it could be a whole family of flies—is the section 4(f) stipulation. NEPA 4(f) covers the use of how highway projects will impact historic landmarks, buildings and parks.
Established in 1937, the Appellate Court is holding that Pea Island National Wildlife Refuge falls into this category and it is their finding that NCDOT and FHWA must determine that the original plans for the park included a right-of-way for a road. “The only evidence relevant to this inquiry is that which pertains to the status of NC 12 when the Refuge was established,” they wrote in their finding.
Well, to clarify, it was remanded to District Judge Louise Flanagan to determine that.
That would seem to set the bar very high to satisfy those requirements, so at this point it’s difficult to know where the project stands.
What is known, is the Bonner Bridge, connecting Hatteras Island with the northern Outer Banks is now 20+ years past it’s projected lifespan. NCDOT has done a remarkable job of maintaining it, but that maintenance is becoming more difficult and expensive.