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Second lawsuit filed over W.Va. 9

May 21, 2002|BY DAVE McMILLION

charlestown@herald-mail.com

CHARLES TOWN, W.Va. - A second federal lawsuit has been filed over the proposal to widen W.Va. 9 to four lanes, claiming the state did not obtain proper approvals to build a bridge that will carry the new freeway across the Shenandoah River, one of the plaintiffs in the suit said Monday.

Pat Fiori of Charles Town, one of the plaintiffs in the suit, said the action revolves around a requirement contained in a federal environmental impact statement for the project.

The report says that before the project can move forward, the state highways department must obtain a permit from the U.S. Army Corps of Engineers for the bridge, Fiori said.

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Fiori said the highways department has not obtained the permit.

The suit seeks to stop the highway project until the permit can be obtained, although it is unclear how long that will take, Fiori said.

Work on the project - which had been held up by the first lawsuit - was expected to be allowed to resume after May 31. But now it's unknown if that will happen because of the latest lawsuit, said Tony Halkias, an attorney for the West Virginia Department of Transportation.

"Everything is kind of at a standstill," Halkias said Monday afternoon.

The new lawsuit, filed April 23 in U.S. District Court for the Northern District of West Virginia, contends the U.S. Army Corps of Engineers, U.S. Department of Transportation, Federal Highway Administration and the West Virginia Department of Transportation did not comply with Section 404 of the Clean Water Act of 1977 before beginning work on the section of the road between U.S. 340 and Cattail Run Road, according to the state Department of Transportation.

Section 404 of the Clean Water Act regulates the discharge of dredge and fill material into waters of the United States, Department of Transportation officials said in a release Monday.

Fred Van Kirk, secretary of the state Department of Transportation, took issue with the lawsuit, saying his department complied with Section 404 of the Clean Water Act.

"The filing of this new lawsuit is just another way for these plaintiffs to stall the Route 9 project," Van Kirk said in a prepared release.

"These lawsuits delay the residents and travelers of the Eastern Panhandle from having a safer, more efficient means of travel and cost the taxpayers additional money," Van Kirk said.

Fiori said the highways department would not have been in this situation if it had followed requirements.

"These procedures are set out for a reason," Fiori said.

The plaintiffs are six of the seven plaintiffs who filed the first lawsuit over the W.Va. 9 project six months ago, said Van Kirk.

In the first lawsuit, it was alleged that the Department of Transportation, the Federal Highway Administration and the U.S. Department of Transportation violated the Environmental Policy Act and a section of the Department of Transportation Act dealing with historic sites, according to the Department of Transportation.

Representatives from the West Virginia Department of Transportation and plaintiffs in the first lawsuit later reached an agreement over a request for a temporary restraining order that would have halted construction on the project.

In the agreement, the groups that sought the temporary restraining order through the lawsuit filed in U.S. District Court in Washington, D.C., agreed to temporarily withdraw their request for the restraining order.

In exchange for their actions, the Department of Transportation agreed that through May 31, it will not continue with construction of piers and abutments for a proposed bridge over the Charles Town bypass.

The agency also agreed not to proceed with right-of-way acquisition on property belonging to John Porter, one of the plaintiffs in the suit.

It was hoped that after May 31, the case would have been closer to resolution, Fiori said.

After May 31, the highways department was expecting to be allowed to proceed with all construction activities and advertise and award additional contracts for the project, said VanKirk.

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