UPDATED: Law center files suit against decision to build Monroe Bypass

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The Southern Environmental Law Center is again challenging in court the state and federal decision to build a 19.7-mile high-speed bypass around congested U.S. Highway 74 in Monroe.

The SELC filed suit in U.S. District Court in Charlotte on Monday on behalf of three conservation groups, citing what it called in a statement “the latest inadequate review” of the project’s potential impacts by state and federal transportation officials

“Unfortunately as we’ve seen in the past, honesty is still not NCDOT’s policy when it comes to the Monroe Bypass,” said Kym Hunter, an SELC attorney representing the groups, in the statement.

In a statement issued Monday, the state DOT said it “is moving forward with its efforts to obtain the permits needed to build the Monroe Bypass.”

“Although the Southern Environmental Law Center filed a lawsuit on the project today, the court has not taken any action that would prevent NCDOT from continuing work on this important project. The department is disappointed that after two years of hard work to resolve the SELC’s concerns, the organization has decided once again to sue on the project.

“The need for the project is great. Drivers must travel through 27 intersections with traffic signals within a 23-mile section of U.S. 74, which impacts traffic flow. The result is that the U.S. 74 Corridor is heavily congested. The Monroe Bypass will significantly improve mobility in the area by giving motorists a high-speed alternative to U.S. 74. With traffic able to move consistently at 65 miles per hour, drivers will have a more reliable way to reach their destinations safely and efficiently.

“As the area continues to grow, this critical highway option will be key to helping move people and products across the region.”

Depending upon actions taken by the court, the suit could mean another delay in the start of the $850 million toll road’s construction.

The state Department of Transportation and the Federal Highway Administration released its original decision to build the bypass in a May 2010 Environmental Impact Statement, which is required under the National Environmental Policy Act (NEPA) for large federally funded projects that could damage the environment. The report is required to compare the environmental impacts of the preferred solution against alternatives, including not pursuing the project, and to justify the decision.

The SELC first filed suit in November 2010. A federal judge sided with the transportation agencies in October 2011, but the decision was overturned in May 2012 by the 4^th U.S. Circuit Court of Appeals, which said the agencies failed to disclose the conclusions’ “underlying assumptions” and “falsely” responded to public concerns about data used to estimate traffic flow.

The appeals court found that the data the agencies used in projecting traffic should the road not be built actually supposed that the road was built. The appeals court judges ruled that by using flawed data, then denying it even after environmental groups and the U.S. Fish and Wildlife Service pointed out the error, the agencies “did indeed violate NEPA.”

The N.C. DOT has said that some data was provided by the former Mecklenburg-Union Metropolitan Planning Organization and was run through computer modeling programs, and that the use of the flawed data was a mistake, but not intentional. MUMPO has restructured and is now the Charlotte Regional Transportation Planning Organization.

The agencies were then required to revisit the report and correct errors, and issued a revised report on May 15, which stated that the conclusions reached by the original report were substantially correct because data from another traffic forecast was used as well, and supported those conclusions.

At that time, the DOT said it hoped to start construction by the end of the year, after re-obtaining required water quality permits.

From the time the project was suspended in May 2012, the N.C. DOT has paid just over $11 million to the contractors, Monroe Bypass Constructors LLC, which comprises three companies.

The N.C. DOT is making those payments to compensate those companies because they  had hired additional workers for the project and were ready to begin construction when the work was halted.

“A lot of that money was paid for what we call a demobilization of the design-build team,”  said Rick Baucom, N.C. DOT assistant division construction engineer, in October. “They had over 100 people assigned – designers, project management staff – working full time on it.”

Baucom said the companies tried to find other projects for the workers, but the state paid the contractors for the workers who could not be reassigned.

One of those companies, Boggs Paving Inc., and five of its executives were indicted in July 2013 on up to 30 federal counts of conspiracy, money laundering and fraud charges in connection with alleged misrepresentation of the work done by a disadvantaged business enterprise on road projects in North Carolina and South Carolina. One of the defendants, Arnold Mann, is expected to enter a new plea to the charges Wednesday. He had pleaded not guilty in November.

In its lawsuit, the SELC is representing Clean Air Carolina, the Yadkin Riverkeeper, and the N.C. Wildlife Federation.

In its statement, the SELC said that in the most recent report, the agencies “failed their legal duty to provide an honest, transparent account of the purpose of the proposed highway and its likely impact on local communities in Union County.”

The organizations believe that traffic congestion on U.S. 74 could be alleviated by methods that would cost less, displace fewer landowners, and inflict less environmental damage. Several Union County towns have agreed, passing resolutions asking the state to look at alternatives to the bypass, including making changes that improve traffic flow on U.S. 74 southeast of Charlotte.

Supporters, including the city of Monroe and Union County, say it is needed to improve connectivity between Wilmington and Charlotte and that the roadway will provide economic development opportunities for communities east of Monroe.