Archive of Prominent Section 106 Cases:
March 2000
Virginia-Maryland: Replacement of the Woodrow Wilson Bridge
Agency: Federal Highway Administration
Criteria for Council Involvement:
- Replacement of the Wilson Bridge will affect the Alexandria Historic District, a National Historic Landmark (Criterion 1).
- Litigation and public controversy on this project have raised questions regarding application of the Council's regulations regarding phasing of the identification of historic properties and assessment of effects (Criteria 2 and 3).
Recent Developments
On December 17, 1999, a Federal appeals panel reversed a lower court’s ruling that the Federal Highway Administration (FHWA) had not adequately complied with the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) in planning the replacement of the Woodrow Wilson Bridge over the Potomac River near Washington, D.C.
The preferred design for the new Wilson Bridge, spanning Virginia and Maryland over the Potomac River
(drawing courtesy of Potomac Crossing Consultants and the Wilson Bridge Project)
The unanimous opinion by the three-judge panel allows the 1997 Memorandum of Agreement (MOA) that was developed in accordance with Section 106 to stand and the project to go forward as scheduled. The MOA provides for a phased approach to identifying impacts in the project’s area of potential effects, while deferring the identification of a small number of ancillary activities until such time as prerequisite engineering work can be carried out during the process of final design. The court’s ruling upholds this frequently used, flexible approach to Section 106 compliance.
Background
FHWA, in cooperation with the Maryland State Highway Administration and the Virginia Department of Transportation, is proposing to replace the Wilson Bridge over the Potomac River between Alexandria, Virginia, and Prince George’s County, Maryland. The bridge carries Interstate 95 over the Potomac and, as one of two river crossings for the Washington Beltway, is one of the most critical transportation links in the metropolitan area.
The Wilson Bridge is also a drawbridge that must open approximately 200 times per year and is the only property owned outright by FHWA. The bridge currently carries more than twice the volume for which it was designed in the 1960s, a situation further aggravated by the high volume of heavy truck traffic on the I-95 corridor.
The bridge is in deteriorating condition and must be replaced within the coming decade. FHWA has looked at a number of alternatives since 1989 and produced a Draft Environmental Impact Statement (DEIS) in 1991, followed by two Supplemental DEISs in 1996. The preferred alternative is a pair of side-by-side drawbridges on an alignment immediately to the south of the existing bridge.
Given the scale of the undertaking and its proximity to the Alexandria Historic District, a National Historic Landmark, as well as other National Register-listed or eligible properties, the project has been viewed as having an adverse effect under Section 106.
After several years of coordination with all the consulting parties, the Council executed a MOA for the project in November 1997. The agreement was signed by the State Historic Preservation Officers and transportation agencies from Maryland and Virginia; the National Park Service; the City of Alexandria; Prince George’s County; and the Daughters of the American Revolution.
Although a signatory to the agreement, the city brought suit against FHWA for failure to comply with the Clean Air Act, NEPA, NHPA, and Section 4(f) of the Department of Transportation Act. The city later withdrew from the suit after reaching a compromise with FHWA whereby the new bridge would be built to accommodate 12 lanes of traffic, but initially would be marked for only ten. However, the intervenors in the lawsuit, including several local organizations and the National Trust for Historic Preservation, elected to continue the case.
On April 13, 1999, the judge for the U.S. District Court for the District of Columbia issued a summary judgement in favor of the plaintiff-intervenors. The opinion found that FHWA failed to complete its identification of historic properties under NHPA, including those that may be affected by construction staging, dredge disposal, or wetland mitigation.
The judge also ruled that by failing to identify all properties prior to issuing a Record of Decision under NEPA, FHWA could not have undertaken “all possible planning to minimize harm” to historic properties as is required by Section 4(f) of the Department of Transportation Act. FHWA promptly appealed the decision.
Policy Highlights
The lower court’s finding that all reasonably foreseeable properties and impacts must be identified prior to a final decision by the agency had troubling implications for programmatic and process-oriented agreements that have been routinely executed by the Council. Many are now in place that allow phased survey and identification, particularly in the case of large corridor projects that potentially involve many archeological sites. The appeals panel reversal of the lower court’s finding provides welcome support for the continued use of this approach in Section 106 agreement documents.
Staff contact: MaryAnn Naber
April 1999 report on this case
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