Friday, March 21, 2008

"I don't really think it's 'Big Government' that's the problem here. I think it's 'Out-of-control-nobody- accountable Government.' "

TxDOT accused of hiding information on 290 project:

Required environmental study could cause major delays


Ann Fowler
Oak Hill Gazette
Copyright 2008

OAK HILL - TxDOT has been hiding information it knew would lead to major delays in completion of the Hwy. 290 project, say members of Fix290 and the Save Our Springs Alliance.

At community forum meetings last summer, TxDOT claimed that the Fix290 parkway proposal would require a new environmental impact study while their design would not. Now it appears TxDOT knew all along that all of the options they were presenting needed an additional environmental impact study.

The Federal Highway Administration (FHWA) had requested that the Texas Department of Transportation (TxDOT) complete a Supplement to the Final Environmental Impact Statement (FEIS) in part because of the controversy over the project and in part because the original document is 20 years old.

In all likelihood, this means a major delay of at least two years in the completion of the Hwy. 290 project at the 'Y' in Oak Hill.

The November 30, 2007 letter from FHWA District Engineer Salvador Deocampo, said, "Currently, on the west side of the project from FM 1826 to Williamson Creek, TxDOT has been working on a reevaluation of the project. The reevaluation was commenced to address changes in design which include consideration of additional alternatives including a reduction in the overall footprint of the segment and to toll the mainlanes. This reevaluation would also assess environmental issues such as endangered species, Mobile Source Air Toxics, noise impacts, etc., not previously studied in the original EIS and approved in the 1988 ROD [Record of Decision]. The project has generated some controversy as is expressed in public statements by the Fix290 neighborhood group, the Save Our Springs Alliance (SOSA) environmental group and several anti-tolling groups."

The letter was discovered by SOSA when officials made a Freedom of Information request.

Andrew Hawkins, staff attorney for SOSA, told the Gazette, "Yes, we (SOSA) sent a FOIA request to FHWA and turned up this letter. Public information laws are a crucial part of the democratic process, as they give people a way to hold our government accountable for its actions, all the more important to take note of during this Sunshine Week. But certainly it should not take a FOIA request to FHWA to find out what's going with the TxDOT's schedule and plans for the 290 project."

March 16-22 is Sunshine Week, a campaign by the media to push for an open and accountable government.

TxDOT did not respond to a request about whether the requested SEIS will delay the project. Said Hawkins, "When TxDOT presented the matrix of new alternatives last year, they estimated 48 months for an SEIS. They have some amount of time allotted in the current schedule for reevaluation that could be used for the SEIS, but we're still looking at a substantial delay."

Steve Beers, a member of the Fix290 Coalition that wanted a parkway instead of a multi-level roadway, told the Gazette, "In the mediation sessions [last summer to encourage Oak Hill groups to pick the best design for 290], TxDOT claimed a SEIS for their so-called 'parkway' Option 5 would take 48 months. Since I think they were exaggerating then in order to push their tolled and elevated plan, I think the true reality is closer to one or two years. But who knows? It probably depends on their funding, and the reluctance with which they approach the work. If they drag their feet, or produce biased studies, there may be further delays and possibly even legal trouble."

Carol Cespedes, spokesperson for Fix290, told the Gazette, "Last summer TxDOT made the claim that the Fix290 parkway proposal would require a new EIS while their design would not. I wonder how much longer people will believe TxDOT's statements when they are not only mistaken, but try to conceal their mistakes from the public."

She added, "The highway cannot go to construction without the SEIS, and, as I understand it, the SEIS may take two years. At very least this creates major delay. We wonder how they can be confident about securing private financing when they haven't finished the environmental impact study. Don't they need to disclose this detail before bonds are issued?"

Added Bruce Melton, a professional civil engineer who lives in Oak Hill, "This issue is extremely important in that TxDOT has not informed the public of this delay in the project. By not publicly disclosing this delay, in effect, they have kept the FHWA letter hidden."

Cespedes agreed, saying, "Last summer TxDOT argued that their designs were easier to permit than the Fix290 parkway and claimed they would not need an SEIS. Now we see that TxDOT has known about the SEIS requirement since November, but utterly failed to inform the public or the regional transportation agency, CAMPO [Capital Area Metropolitan Planning Organization], of this new source of project cost and delay. They kept it hidden even while they prepared to borrow money from Wall Street based on tolling 290."

Said Hawkins of TxDOT's failure to release the letter to the public earlier, "It is bad planning on the part of TxDOT, and runs counter to NEPA's [National Environmental Policy Act] spirit of ongoing, open coordination with the public and governmental entities such as CAMPO. Everyone wants 290 fixed sooner rather than later --it is hard to see how this will happen in light of TxDOT's persistent inability to play it straight with the public and CAMPO."

Cespedes added, "If TxDOT were open and honest with the taxpayers and their elected representatives, they would have disclosed this last year --but of course they were busy at that time, explaining what happened to that missing $1 billion."

TxDOT officials admitted to legislators earlier this year that they had substantially less money to spend than anticipated because they had mistakenly counted $1.1 in revenue twice.

Cespedes likened this latest 290 setback to the October 2006 rejection of TxDOT's Nationwide Permit application for 290 by the Army Corps of Engineers. She said, "There is a deja-vu. TxDOT would no doubt have preferred to keep the Nationwide Permit rejection quiet, but it was announced to the CAMPO Board during citizens' comments. TxDOT tried to insist that it really made no difference, but they spent six or seven months redesigning. This is a much more major delay."

Melton pointed out that in a July 2007 matrix TxDOT handed out at public meetings the EIS reevaluation planned for Option 4 would be 26 months. He said, "TxDOT's project schedule shows that they are currently in the process of reevaluation of the EIS. TxDOT's reevaluation was scheduled to be complete about this time next year. Supplementation takes 1-1/2 to 2 years as per Mike Leary of the FHWA Austin Office. The current schedule has one year remaining for EIS reevaluation, so the additional factual delay to the project is 6 months to a year if TxDOT is diligent in their pursuit of the Supplementation. They received this notice from FHWA in November. As of last week, TxDOT still had not issued their FHWA required Notice of Intent (NOI) to perform the SEIS that takes 1-1/2 to 2 years to complete."

Melton pointed out that the FHWA is asking for an EIS supplementation, which is like a new EIS but is not actually a new EIS. He explained, "FHWA requires for an EIS to be revised for three reasons. If the project boundary changes, if more than two years --that's 2 years, not 20-- elapse since the EIS was approved, or if conditions on the site change enough to warrant reanalyzes. Depending on the depth of the changes, EIS reevaluation could be required. Reevaluation is like a mini supplementation."

The FHWA letter also stated, "In recent discussions without our office, we considered the issues involved in this project and the areas needing to be addressed in any update to the FEIS. The areas needing more study and consideration include the significant changes in land use (from those anticipated in 1988), air quality issues related to Mobile Source Air Toxics, the change in design to construct and operate a toll facility and continuing controversy on noise issues."

Melton conducted a noise study last year that concluded, "Using conservative estimates, Oak Hill can easily expect to experience large increases in ambient noise levels due to the planned US 290/ SH 71 project."

Asked if the FHWA was referring to his noise report, Melton replied, "I would hope that they read my noise report, but in the same breath, I would hope that the analysis of the FHWA, with all of the subjects that needed official review for this project that was approved of two decades ago in 1988, was prompted and wholly dependent upon the diligence of the FHWA to get the job done according to the rules."

Melton said he did not believe anything suspicious should be read into the FHWA's request coming after the CAMPO vote to toll 290. "Just a coincidence of timing, I think," he said.

Said Hawkins, "I'm not sure if the result would have been different, but I definitely think this information would have had an impact. If CAMPO had been aware that TxDOT's switch from what was considered in the 1988 EIS to an elevated, tollway design would cause a significant delay, they might have been more willing to endorse quicker, less expensive options such as Fix290's parkway."

Beers believes the outcome may well have been different had need for an SEIS been known. He said, "I think the TIP [Transportation Improvement Program] vote outcome would have been different w/ CAMPO and Chairman Watson able to see this information. For one thing, since tolling is one of the new conditions to be studied, presumably CAMPO would not have voted to toll 290. It would have been premature to vote to toll US 290 before the studies were completed. For another, the SEIS puts the TxDOT design on somewhat of a level playing field with a parkway design as far as schedule goes--I believe they both must now be studied for their pros and cons."

Beers added, "I recall that CAMPO asked TxDOT to study a parkway way back in October of 2006. Now they will have to do this anyway, so why did they drag their feet, waste all our time, and resist so long? They put us in the position of having to come up with detailed blueprints in order to be considered by CAMPO, and that was something a citizens' group was not in a position to do--that is, do their job for them."

Locals believe the parkway plan may still be on the table. Said Melton, "Fix290 will continue to work with the FHWA to assure that the issues in Oak Hill seen by TxDOT as controversial are addressed in the new EIS. We have a wonderful amount of support for the parkway concept in the community. Not only can we meet future CAMPO traffic estimates, but our design concepts are much, much cheaper to build. Our cost estimate, performed by the transportation consultant that did the design analysis for Envision Central Texas, came in at less than $80 million, at the same time that TxDOT's estimate was climbing above $400 million. Technology today can toll virtually anything with a little black box so, if we absolutely have to, we can continue to fund, build and maintain roads exactly the same as TxDOT with their 12-lane elevated superhighway through the heart of our community. And we get to keep the heart of our community instead of having it paved over with an elevated superhighway like Hwy 183 between Mopac and I35 with a 5-story interchange at the 'Y.' Our parkway concept is not like the Southwest Parkway, we use the textbook definition of a parkway which is exactly like Mopac where it has no frontage roads."

Agreed Cespedes, "We still believe that Highway 290 West could be built more quickly at less cost if TxDOT would rethink the requirement for an elevated six-lane toll road with an equal number of frontage lanes. We have already demonstrated that a parkway has capacity to move traffic through the year 2030 and is also better for neighborhoods and the natural environment. We will continue to remind TxDOT, CAMPO and the CTRMA, believing that someday they will have to take a look at reality --and change their plans!"

Local activists believe membership in grassroots organizations like Fix290 is worthwhile because they can make a difference. Said Melton, "It's always worthwhile for citizens to be active in their community, in some cases--very worthwhile. I don't really think it's 'Big Government' that's the problem here. I think it's 'Out-of-control-nobody- accountable Government.' We don't need all of this extra expense and complication to make our highways work. The vast majority of the country creates transportation systems without access roads, why should we be different and destroy our community?"

Added Hawkins, "The spirit and letter of the National Environmental Policy Act (NEPA) make public involvement a crucial part of the government's decision-making process. The community should always voice its concerns and preferences to make sure that decision-makers take the required 'hard look' at the environmental consequences of their actions. Having said that, I think public controversy is a minor reason among the deeper flaws mentioned in the letter, and such controversy would not have caused a SEIS by itself. The most significant reason, in my mind, is TxDOT's pursual of an elevated tollway design, which was clearly not considered in the 1988 EIS."

Beers added, "I think it is always worthwhile for the affected public to speak up and have their voices heard. In the case of the federal highway noise statutes, there is a duty not just to study future noise impacts from the project, and the various options to abate it --including narrower and less elevated designs--there is also an affirmative duty to take measures to limit or 'abate' the noise.

"For instance, if a new noise study shows that sound walls would be cost-effective to prevent damages to property values and health, they must build them. Conversely, if the road gets built without these noise abatement measures added before the road gets finished, then TxDOT is not under any obligation to add those measures later on, and their present policy is not to do so for already existing roads.

"Neighborhoods along MoPac in West Austin have waited more than 30 years for promised sound walls. There is also a duty under this federal noise law to hold hearings and consult with the affected residents and local officials, which TxDOT has not done.

"I hope that TxDOT does seriously consider a parkway plan. I believe they have a duty under federal law to consider non-tolled and non-elevated options with less community impact on neighborhoods and the environment. Fix 290 does not oppose all tolling necessarily. We have said tolling a managed lane in the middle might be okay as long as most of the other freeway lanes stay free. A managed lane is a carpool lane that allows some tolled single occupant vehicle traffic. But tolling all the main lanes as TxDOT wants to do means under state law you must supply free frontage roads which makes the whole profile twelve lanes wide--causing all the problems with Williamson Creek, the oaks, etc. Call that a 'parkway' or not, those elements are overdue for a real examination and real alternatives. I hope they use this delay productively, rather than frittering away the time w/ yet more manipulative game playing.�

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