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Purple Line opponents argue that construction violates federal water protections

A steel structure that will hold elevated Purple Line tracks through downtown Silver Spring stands partly finished since the project contractor quit in the fall over cost disputes with the Maryland Transit Administration.
A steel structure that will hold elevated Purple Line tracks through downtown Silver Spring stands partly finished since the project contractor quit in the fall over cost disputes with the Maryland Transit Administration. (Katherine Shaver/TWP)
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Opponents of Maryland’s Purple Line project told a federal appeals court Thursday that the government didn’t sufficiently consider a more environmentally friendly way to improve mass transit before it allowed construction of a light-rail line to harm streams and wetlands.

In appealing their third and final lawsuit, opponents argued the U.S. Army Corps of Engineers improperly issued permits that allowed construction workers to discharge dredge and fill into streams and wetlands in Montgomery and Prince George’s counties.

Doing so violated the Clean Water Act, the opponents said, because the Corps didn’t consider their idea that the state improve east-west mass transit by upgrading bus service, which they say would have done no, or less, harm.

“We put the government on notice that there was a better way to do this, and they simply ignored it,” David W. Brown, the opponents’ lawyer, told a three-judge panel in a virtual hearing at the U.S. Court of Appeals for the 4th Circuit in Richmond.

U.S. District Judge James K. Bredar rejected the opponents’ arguments in April, saying the state had “clearly demonstrated” that the Purple Line design under construction was the “least environmentally damaging practicable alternative.”

The Corps, the judge wrote, did not make an “arbitrary, capricious” decision — the legal hurdle for the opponents to overcome — in issuing permits for the light-rail construction.

Judge dismisses third — and final — lawsuit against Purple Line project

How a ruling in favor of the plaintiffs might affect completion of the 16-mile project is unclear. Construction started in 2017 but mostly stopped in September 2020, after the contractor quit over what it said were 2 ½ years of delays and hundreds of millions of dollars’ worth of cost overruns. Major construction is expected to resume after September, when the firms managing the project have said they plan to have a new contractor on board.

The opponents have asked that the Corps reevaluate the permits, which are required for work that affects streams and wetlands.

Lawyers for the Corps and the Maryland Transit Administration said the Corps correctly relied upon the expertise of the Federal Transit Administration in its approval of the project’s required environmental impact study. Moreover, they said, the potential environmental effects of the construction — permanent harm to 5,100 linear feet of streams and about a half-acre of wetlands — were relatively small.

“We’re not dealing with large wetland areas that are being filled in,” said Albert M. Ferlo, a lawyer for the state. “These are very small and discrete areas that allow the project to be built.”

The bus options the state analyzed would have harmed more wetlands than the light-rail route that it chose, said Sommer Engels, a lawyer for the Corps.

The agency, she said, was “very much involved” in the state’s evaluation of the potential impacts on wetlands and streams, as well as how to reduce or offset them. Building a bus rapid transit system also would have required widening roads and running buses on bridges over streams and wetlands, Engels said.

Judge rejects opponents’ second lawsuit against Purple Line project

In questioning Brown, Judge Barbara Milano Keenan said the opponents had an “uphill battle” to show that the Corps’ approval of permits was arbitrary and capricious. The state’s study had found that bus options would have “very slow” travel times, which wouldn’t have met its goal of creating a “more efficient” transit system, she said.

The lawsuit was filed by the advocacy group Friends of the Capital Crescent Trail and residents John MacKnight Fitzgerald and Leonard Scensny. MacKnight and the trail group also had filed two previous lawsuits against the project. Both were unsuccessful.

The first lawsuit delayed the start of construction by a year, after a D.C. federal judge agreed with opponents that the state needed to redo ridership forecasts to account for Metro’s declining ridership. The Purple Line will not be part of the Metro system but will have stops at four Metro stations. The U.S. Court of Appeals for the D.C. Circuit overruled the lower court’s decision.

Federal appeals court ruling allows Purple Line construction to continue

The opponents also lost a second lawsuit, in which they argued they would suffer “injury” as Metro riders because the Purple Line would take government money away from the region’s aging subway system. A judge agreed with government lawyers that the project’s $900 million in federal funding had not been diverted from Metro.

Read more:

Purple Line firms narrow list of potential new contractors

Montgomery asks state if Purple Line can be single-tracked in Bethesda

Maryland approves $250 million legal settlement to finish Purple Line

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