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In the case of Potomac Heritage Trail Association v. United States Department of Transportation, 2022 U.S. Dist. LEXIS 186457 (Dist. Md. 10/11/2022), plaintiffs Potomac Heritage Trail Association, Inc., Dahlgren Railroad Heritage Trail, Inc., and Oxon Road Bicycle and Trail Club, Inc., filed a complaint in federal district court seeking to enjoin demolition of the Governor Harry W. Nice Memorial Bridge (Historic Nice Bridge).

Built in 1940, the 80-year-old Historic Nice Bridge spanned the Potomac River between King George County, Virginia, and Charles County, Maryland. The narrow two-lane bridge had no median or shoulder; only vehicles could cross it. Cyclists and pedestrians were prohibited.

Potomac Heritage Trail Association, Inc., and Dahlgren Railroad Heritage Trail, Inc., are Virginia not-for-profit corporations whose primary purpose is to protect, promote and improve the Potomac Heritage National Scenic Trail and the Dahlgren Railroad Heritage Trail, respectively. The Potomac Heritage Trail is adjacent to the Historic Nice Bridge on both sides of the Potomac River; this noncontiguous trail does not cross the bridge. The Dahlgren Railroad Heritage Trail is a 16-mile trail that ends just short of the bridge on its Virginia side.

Oxon Road Bicycle and Trail Club, Inc., is a 50-year-old Maryland not-for-profit corporation with more than 400 members and a significant minority membership population. Its primary purpose is to provide more and better cycling options as a means of recreation and carbonless transportation in Southern Maryland.

Dedicated Bike/Pedestrian Path

The replacement of the Historic Nice Bridge had been under consideration for more than a decade. An initial design for the new bridge was selected in 2012. The selected design included a dedicated bicycle/pedestrian (bike/ped) path separated from the vehicular traffic by a barrier.

In 2019, the bridge design changed and did not include a separated bike/ped lane. The new design for the built bridge has four 12-foot lanes, including one lane in each direction that cyclists may share with vehicles. Demolition of the old bridge was scheduled to commence immediately after the new bridge opened.

Because the new bridge did not have a separated path for cyclists and pedestrians, as contemplated by the original 2012 design, plaintiffs opposed demolition of the Historic Nice Bridge. According to plaintiffs, the Historic Nice Bridge was the only remaining viable option for a safe bike and pedestrian passage over the Potomac River.

In the absence of a dedicated bike/ped lane, plaintiffs claimed the new bridge does not allow for a safe Maryland/Virginia connection for cyclists and pedestrians who want to access the historic trails on both sides of the bridge. Moreover, plaintiffs argued local communities, particularly minority communities in Charles County, Maryland, needed a dedicated bike/ped path for recreational access to Section 4(f) and Section 6(f) park resources in Virginia.

Further, plaintiffs claimed demolition of the Historic Nice Bridge would cause them irreparable harm (a requirement for a preliminary injunction) because the bridge could be the last opportunity to ensure safe crossing of the Potomac River and access to recreational resources at a reasonable cost. Accordingly, plaintiffs petitioned the federal district court to issue a preliminary injunction to prevent the demolition of the Historic Nice Bridge pending additional environmental review.

Environmental Assessments

In 2006, the Maryland Transportation Authority (MDTA) began planning for improvements to the Historic Nice Bridge. Members of the public and other state agencies had asked MDTA to include bicycle and pedestrian facilities in the bridge improvement analysis. Seven alternates were retained for detailed study, including four that replaced the old bridge or removed it from service.

In 2009, MDTA published an Environmental Assessment (EA) and Draft Section 4(f) Evaluation for improvements to the Historic Nice Bridge that analyzed the seven retained alternate plans. Each included a barrier-separated bicycle/ped path option. For all alternatives, the separate bike/ped path option added to the overall construction and maintenance cost and increased some of the environmental impact measures assessed.

In an October 2012 Finding of No Significant Impact (FONSI) and Final Section 4(f) Evaluation, the Federal Highway Administration (FHWA) and MDTA issued reports adopting the MDTA-preferred alternative to build a new four-lane bridge to the north of the old bridge with a separated two-way path for cyclists and pedestrians on one side of the bridge. In addition, MDTA would demolish the Historic Nice Bridge following the opening of the new bridge. FHWA approved the FONSI in November 2012.

Project Re-evalution

In 2015, MDTA evaluated performance-based practical design strategies for the project, resulting in a “modified design configuration that meets the objectives of the project Purpose and Need and achieves significant project savings.” These savings, in turn, “made this project financially viable for construction sooner, providing safety and congestion relief that is needed now.” Under the new design, however, the bridge would include a shared bike lane in each direction, not a barrier-separated bike/ped path.

In February 2019, MDTA submitted to FHWA a re-evaluation under the National Environmental Policy Act (Re-evaluation) to determine if, in light of the current updated bridge design, the 2012 FONSI and Final Section 4(f) Evaluation remained valid.

Regarding the options for bicycle access, the Re-evaluation explained that “bicycle access is currently prohibited on the Nice Bridge, and this prohibition will be lifted on the new bridge.” Further, MDTA would “evaluate the design/build proposals to determine a separated path on a cost-benefit basis.” Based upon expected usage, MDTA found a separated path would add more than $70 million to the project’s projected costs and the construction cost per average daily path user would be $1.3 million. Construction began on the new bridge in 2020.

Old Bridge Conversion

On July 14, 2022, U.S. Senators Ben Cardin and Chris Van Hollen and Congressman Steny Hoyer, all from Maryland, asked MDTA to allow time for an independent study of the feasibility, costs and benefits of converting the old bridge to a non-motorized trail. On July 21, 2022, MDTA responded that it would “continue with the permitted plan to demolish the existing bridge.” In so doing, MDTA estimated $46.7 million would be needed to maintain the existing bridge for bicycle and pedestrian use for 30 years.

Charles County, Maryland, and King George County, Virginia, as well as the Commonwealth of Virginia also had requested information about options to retain the existing bridge. MDTA offered to transfer ownership, but they all declined due to prohibitive facility maintenance costs.

Environmental Law Claims

In their lawsuit, plaintiffs claimed the defendants had violated various federal and state environmental laws by failing to consider the impact of demolishing the Historic Nice Bridge without including a separated bike/ped lane on the new bridge.

In particular, plaintiffs alleged violations of several environmental laws, including Section 4(f) of the Department of Transportation Act of 1966; Section 6(f) of the Land and Water Conservation Fund Act of 1965 (LWCF); and the National Environmental Policy Act (NEPA). In so doing, plaintiffs argued the defendant agencies had violated procedural requirements by adopting a different configuration for the actual bridge, which eliminated a dedicated bike/ped lane contained in the earlier environmental study and selection process.

Section 4(f)

As cited by the federal district court, Section 4(f) of the Department of Transportation Act of 1966 requires “special effort should be made to preserve the natural beauty of public park and recreation lands, wildlife and waterfowl refuges, and historic sites” in the United States. 49 U.S.C. § 303(a).

To that end, the court noted “Section 4(f) imposes certain restrictions on the use of such land incorporated or constructively used in a federally funded transportation project.” Moreover, the court found: “Constructive use would occur when the proximity of the transportation project severely impacts or substantially impairs the activities, features, or attributes of properties protected by section 4(f).” In particular, such constructive use would occur under section 4(f) when “the project results in a restriction on access which substantially diminishes the utility of a significant publicly owned park, recreation area, or historic site.” 23 C.F.R. § 771.135(p)(4)(iii).

Under Section 4(f), the Secretary of Transportation may approve a program or project requiring the use or constructive use of covered land in only two scenarios:

First, the Secretary may approve programs or projects that would have a de minimis impact on the area.

Second, if the impact is more than de minimis, the Secretary may approve the project “only if (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303; 23 C.F.R. § 774.3.

Under Section 4(f), an alternative would be considered “feasible” unless, “as a matter of sound engineering,” it should not be built. Whether or not an alternative is “prudent” would require the Secretary to “consider disruption to the community and the inherent value of the property.” Further, land protected under Section 4(f) may not be used unless there are “truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes.”

Section 4(f) Re-evaluation

The plaintiffs did not dispute the validity of the original 2012 Final Section 4(f) Evaluation, nor its reliance on the 2012 EA and FONSI prepared under NEPA. Instead, plaintiffs challenged MDTA’s alleged failure to perform another Section 4(f) analysis when the original plans were changed in the 2019 Project Re-evaluation.

After the initial environmental analysis, the federal district court acknowledged that another Section 4(f) approval would be required if changes in a project would result in the following:

[A] proposed modification of the alignment, design, or measures to minimize harm (after the original section 4(f) approval) would result in a substantial increase in the amount of section 4(f) property used, a substantial increase in the adverse impacts to section 4(f) property, or a substantial reduction in mitigation measures. 23 C.F.R. § 771.135(m).

The federal district court, however, found the Re-evaluation had “compared the effects of the original design on Section 4(f) resources with the effects of the new design (including with a separated bike/ped path option) on the same Section 4(f) resources.” In so doing, the court found the Re-evaluation had reasonably incorporated its original 2012 Final Section 4(f) Evaluation and mitigation measures. Moreover, the court noted: “The impact on the Historic Nice Bridge remained the same; it would be demolished under both designs.”

Section 4(f) Constructive Harm

The plaintiffs had further argued the new bridge and the absence of a separated bike/ped path to cross the river would cause “constructive harm” on “Section 4(f) properties by reducing the number of cyclists and pedestrians who may access them via a bridge.” In particular, plaintiffs alleged “constructive harm” to the Section 4(f) properties would occur “because the new bridge prohibits pedestrians altogether” and “dangerous” shared bike lanes would “deter most cyclists from crossing the bridge,” leaving “no other bridge option for cyclists and pedestrians.” In addition, plaintiffs contended “a separated bike/ped lane, which was contemplated in the initial design and approved in the 2012 FONSI and Final Section 4(f) Evaluation, mitigated this constructive harm to Section 4(f) and 6(f) parks and resources in Virginia.”

The federal district court rejected this argument. In the opinion of the court, plaintiffs had “not made even a preliminary showing that the as-built bridge will result in any loss of access to Section 4(f) property.” On the contrary, before the bridge improvement project, the court found “neither cyclists nor pedestrians could cross the Historic Nice Bridge.” However, with the new bridge built, the court noted “cyclists may cross the Potomac in shared lanes with additional rider-friendly features”:

[T]he fact that the defendants initially offered to provide cyclists and pedestrians with a great deal of access to Section 4(f) properties and then provided cyclists less access (and pedestrians no access) does not amount to a harm to Section 4(f) properties that requires mitigation….

The new bridge will provide greater access for cyclists than they previously had. And it will do so while taking less Section 4(f) property overall than would have been required under the initial bridge design with a separated bike/ped path.

Having found no violation of Section 4(f), the federal district court, therefore, refused “to weigh in on what is fundamentally a policy disagreement between the plaintiffs and the defendants about how much Section 4(f) access to provide and in what form.”

Land and Water Conservation Fund Act

The federal district court then addressed the alleged violation of Section 6(f) of the LWCF. As cited by the federal district court, Section 6(f) of the LWCF requires an area has been funded with LWCF assistance “must be continually maintained in public recreation use unless National Park Service (NPS) approves substitution property of reasonably equivalent usefulness and location and of at least equal fair market value.” 36 C.F.R. § 59.3; 54 U.S.C. § 200305(f)(3).

In their complaint, plaintiffs had identified one area funded with LWCF assistance, Barnesfield Park. Plaintiffs alleged “NPS never approved the as-built bridge in connection with the use of this Section 6(f) land.” However, under the Re-evaluation, the federal district court noted “the redesigned bridge would be built without taking Section 6(f) property.” Due to the redesign of the Project, the court, therefore, held “compliance with the Land and Water Conservation Act is no longer required.”

The plaintiffs, however, argued “defendants’ removal of Section 6(f) considerations from their Re-evaluation” failed to comply with “the point of Section 6(f), which is to ensure quality and public access to LWCF for future generations.” In the opinion of the federal district court, this failed argument ignored the following “important fact”:

The Historic Nice Bridge provided no access to Section 6(f) properties, for either cyclists or pedestrians. The new bridge provides more access for cyclists. Moreover, it avoids taking any Section 6(f) property whatsoever, which the plaintiffs’ preferred 2012 design would do.

Absent a violation Section 6(f) by “reducing access from what previously existed,” the federal district court reiterated its refusal to “wade into policy disagreements between the plaintiffs and the defendants regarding what access to Section 6(f) properties should look like.”

National Environmental Policy Act

The plaintiffs also had claimed a violation of NEPA based upon an alleged failure to adequately consider “the human and environmental impacts of the decision to remove the separated bike/ped path from the new bridge.”

As cited by the federal district court, NEPA requires federal agencies to “take a ‘hard look’ at the potential environmental consequences of their actions.” The requisite “hard look” under NEPA takes the form of an Environmental Impact Statement (EIS) for “every recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment.” When a project is not likely to have significant effects or the significance of its effects is unknown, federal agencies must draft an EA. The EA is designed to determine whether to prepare an EIS or issue a FONSI.

When an agency “makes substantial changes to the proposed action that are relevant to environmental concerns,” further environmental review may be required in the form of a supplemental environmental impact statement. In the alternative, a FONSI would suffice “when an environmental assessment indicates relevant environmental concerns are not significant enough to require a supplement.”

In assessing NEPA claims, the federal district acknowledged it would not “second-guess agency decisions, so long as the agency has given a hard look at the environmental impacts of its proposed action”:

As long as the adverse environmental effects of a proposed action are sufficiently identified and evaluated, an agency is vested with discretion to determine under NEPA that other values outweigh the environmental costs. NEPA, therefore, merely prohibits uninformed rather than unwise agency action.

In this particular instance, the federal district court found plaintiffs had failed to articulate “how the removal of the bike/ped path impacts the areas with which NEPA is concerned in a way that was not addressed in the 2019 Re-evaluation”:

The 2019 Re-evaluation conducted a thorough evaluation of the impacts of the current bridge design, including a protected bike path option — that is, the option to have either a protected bike/ped path or shared bicycle lanes.

As characterized by the federal district court, the 2019 Re-evaluation “comprehensively assessed the environmental impacts of the bridge design changes since the 2012 FONSI,” summarizing “the updated engineering data and methodically discussed updated impacts on numerous resources and areas of concern.” Moreover, the court found plaintiffs had “not explained how any of the analysis in the Re-evaluation is undermined by the removal of the bike/ped path.”

As a result, the federal district court concluded plaintiffs had failed to demonstrate a violation of NEPA based upon any alleged failure in the Re-evaluation to “engage in a ‘hard look’ at the environmental impacts of changing the bridge design to its current and final form which did not include a separated bike/ped path.”

Conclusion

In the opinion of the federal district court, “the defendants undertook an analysis of the new design that, like the 2012 analysis, thoroughly assessed relevant factors.” In so doing, the court found “no indication on the current record that there was any clear error of judgment or failure to follow proper procedure” by the defendants under applicable environmental laws. The federal district court, therefore, denied plaintiffs’ motion for a preliminary injunction to further delay the bridge project.

The Historic Nice Bridge was replaced with a new bridge that fully opened for public use on Thursday, October 13, 2022.

See also: “Nice/Middleton Bridge Project” website; Section 4(f) Overview/Tutorial, Federal Highway Administration, U.S. Department of Transportation; Land and Water Conservation Fund, Compliance Responsibilities and Legal Protection, National Park Service; National Environmental Policy Act, U.S. Environmental Protection Agency.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Professor emeritus in the School of Sport, Recreation and Tourism Management at George Mason University. Webpage link to an archive of articles (1982 to present).