Del. Riverkeeper Network v. Pa. Dep't of Transp.
| Decision Date | 20 August 2020 |
| Docket Number | CIVIL ACTION No. 18-4508 |
| Parties | DELAWARE RIVERKEEPER NETWORK et al., Plaintiffs v. PENNSYVLANIA DEPARTMENT OF TRANSPORTATION et al., Defendants |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Years of disputes flowing from this administrative review are far from water under the bridge. Rather, the waters remain troubled.1
The Delaware Riverkeeper Network and the Delaware Riverkeeper, Maya van Rossum, challenge the Pennsylvania Department of Transportation's ("PennDOT") and the Federal Highway Administration's ("FHWA") issuance of a Final Categorical Exclusion Evaluation and a Final Individual Section 4(f) Evaluation approving a two-lane replacement of the Headquarters Road Bridge in Tinicum Township, Pennsylvania. Plaintiffs claim that Defendants' determinations were arbitrary and capricious under the National Environmental Policy Act ("NEPA") and Section 4(f) of the Department of Transportation Act, and they request that the Court remand the matter for consideration of rehabilitation and repair. The Project described in this Memorandum has been forestalled for years by the adversarial machinations between and among these parties.
All parties move for summary judgment on the administrative record. For the reasons that follow, the Court grants the defense summary judgment motions on all claims.
The Headquarters Road Bridge ("the Bridge") crosses Tinicum Creek in Tinicum Township, Pennsylvania. AR-27 at 12. The western side of the Bridge is in Ottsville, Pennsylvania, and the eastern side is in Erwinna, Pennsylvania. Id. On the east side of the Bridge, there is a T-intersection with Sheep Hole Road to the north and Headquarters Road to the south. Id.
The Bridge consists of a concrete-encased, steel I-beam superstructure2 supported on masonry piers and abutments. Id. The stone masonry piers, abutments, and wing walls are estimated to have been constructed in 1812. Id. The Bridge's superstructure was constructed a century later in 1919. Id. The Bridge's pipe rail was replaced with a steel beam guide rail attached to the concrete curbs in 1991. Id.
The width of the Bridge is 18 feet. Id. When the Bridge was open to traffic, there was one 16-foot lane with no shoulders and a one-foot curb on each side. Id. In 2001, two-feet wide concrete barriers were installed along the curb lines, reducing the width of the travel lane to a minimum of 10 feet. Id. at 14.
The Bridge posted a 19-ton weight restriction in 2006. AR-14 at 51. In 2010, this restriction was reduced to 10 tons. Id. The Bridge was closed to traffic in 2011 after a routine inspection disclosed a hole in the bridge deck. AR-27 at 15.
The Bridge is located in the Ridge Valley Rural Historic District ("the Historic District"), which comprises of approximately 575 acres of land in Tinicum Township. AR-27 at 18. The Historic District is listed in the National Register of Historic Places ("the National Register")3 for its agriculture and architecture. Id. The Historic District contains 67 "contributing resources."4 Id. The Bridge and its adjoining tax parcels are contributing resources to the Historic District. Id.
Tinicum Creek is identified by the Pennsylvania Department of Environmental Protection ("PaDEP") as an exceptional value water under 25 Pa. Code § 93. AR-26 at 21. It is also classified by the National Park Service ("NPS") as a Federal Scenic River or Stream as part of the Lower Delaware National Wild and Scenic River. Id. at 23.
The Wild and Scenic Rivers Act defines "outstandingly remarkable values" ("ORVs") as "the characteristics that make a river worthy of special protection, along with the river's free-flowing nature and water quality." AR-26 at 23. Tinicum Creek is part of the Lower Delaware River, which possesses all five ORVs: cultural, ecological, geological, recreational, and scenic. Id. Tinicum Creek possess cultural, geological, and scenic ORVs. Id. Tinicum Creek is not considered a Pennsylvania Fish and Boat Commission-approved trout water or a Pennsylvania Wild Trout Water. AR-27 at 14. The Creek is also not considered a Pennsylvania Fish and Boat Commission Water Trail, and it is not listed in Keystone Canoeing, which is a guide to the canoeable waters in Eastern Pennsylvania. Id.
The channel of Tinicum Creek that passes under the Bridge exhibits evidence of contraction scour,5 and a scour hole6 was observed adjacent to the Bridge's west abutment and northwest wing wall. Id. Grout bags were installed as a scour countermeasure, but only as a short-term solution. Id.
Defendants collaborated throughout the Project's development process with stakeholders and agencies with jurisdiction over Section 4(f) properties.7 AR-27 at 83. This development process included Section 106 coordination.8 The Project's Section 106 consulting parties9 includethe NPS, the United States Army Corps of Engineers, the PaDEP, the Advisory Council on Historic Preservation ("ACHP"), the Pennsylvania State Historic Preservation Officer ("PaSHPO"), the Pennsylvania Historical and Museum Commission, Tinicum Township officials, elected federal and state officials, and other members of the public. There are a total of 51 consulting parties. AR-27 at 85.
A Determination of Effects Report was prepared by A.D. Marble & Company in 2005 which concluded that the Bridge was not eligible for the National Register and that replacing it would have no adverse effect on the Historic District. AR-26 at 61. After both a public officials meeting and a public meeting, comments were received demonstrating public controversy over the historical value of the Bridge and a decision was reached to ask the Keeper of the National Register to render an opinion on the eligibility of the Bridge for the National Register. Id. at 62. The Keeper determined that the Bridge was eligible for the National Register as a contributing element to the Historic District. Id.
After the Keeper's determination, the first Section 106 consulting party meeting was held.10 At the meeting, the parties discussed the Keeper's finding that the Bridge is a contributing resource to the Historic District, and it was determined that an updated Determination of Effects report for the Project would be prepared. AR-27 at 85. It was also requested that design consultant Urban Engineers provide a report examining whether it would be feasible to reuse the Bridge's existing substructure. Id.
At the second meeting, Urban Engineers presented its findings that the existing substructure could not be used, and the Existing Structure Condition Evaluation Report was provided to the consulting parties. Id. at 85-86. An alternative analysis was also prepared. AR-26 at 65. After the meeting, the Existing Structure Condition Evaluation was published recommending replacement of the Bridge. Id. PennDOT received and responded to comments on the evaluation. Id. at 66.
A one-lane bridge option was discussed at the third consulting party meeting. AR-27 at 86. Mitigation and terms for the Memorandum of Agreement11 were also discussed. AR-26 at 67. In 2013, federal money was programmed for the Project, making FHWA the lead federal agency for the Section 106 process. Id. at 68. Upon this change, the consulting party coordination efforts were updated and reinitiated. Id.
The fourth meeting focused on Urban Engineers' November 2006 Existing Structure Condition Evaluation Report. AR-27 at 86. After that meeting, PennDOT provided the consulting parties with traffic monitoring data, previous public official meeting and consulting party meeting minutes, inspection reports, maintenance records, and a turning radius study prepared by Urban Engineers. Id. A comment response document was also distributed. AR-26 at 69. The Existing Structure Condition Evaluation Report was discussed again at the fifth consulting party meeting. AR-27 at 86. An open forum was also developed to give consulting parties the opportunity to present their opinions and concerns related to the Project. Id.
In response to an invitation by FHWA, in a letter dated December 17, 2013 the ACHP agreed to participate in the Section 106 process. AR-26 at 45. A representative of the ACHP attended the final two consulting party meetings. Id. Defendants provided a revised purpose and need statement in January 2014 and distributed a Core Drilling Investigation Report to the consulting parties in March 2014. Id. at 69-70.
On April 2, 2014, the sixth consulting party meeting was held. This meeting involved a review of the core borings conducted for the Project, a presentation of a bridge rehabilitation option, and an open forum. AR-27 at 86. PennDOT later made an Above-Ground Historic Findings Form and updated Determination of Effects Report available to the consulting parties for review and comment. AR-26 at 70. The Determination of Effects Report evaluated a series of alternatives for the Project, including a "no build" alternative, a new roadway alternative totally avoiding the Historic District, a new downstream alignment alternative, two different one-lane alternatives, a two-lane superstructure replacement and substructure rehabilitation alternative, and a variety of two-lane replacement alternatives. AR-12 at 16. Responses to comments were provided. AR-26 at 71-72. PennDOT, through Urban Engineers, also prepared a Bridge Width Report for FHWA. AR-10. The Report concluded that a one-lane bridge design would not meet the Project's purpose and need. Id. at 14.
The seventh and final consulting party meeting focused on minimizing and mitigating any harms caused by the Project, and included a breakout session during which the parties could develop their ideas. AR-27 at 87. The ideas were presented to everyone in attendance, and the consulting parties stated whether they disliked, or had no opinion on the ideas...
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