Senator Nichols' bill could be a 'poison pill' for his re-election

State Sen. Nichols looks to tame tollway deals

If private tollway contracts remain legal, Jacksonville Republican wants to make sure state gets a fair deal.

3/23/09

Ben Wear
Austin American-Statesman
Copyright 2009

It was about this time two years ago when, figuratively, I costumed a Texas state senator in a silk muumuu and pink boa.

Sen. Robert Nichols, I said, couldn't have surprised colleagues more if he walked on the Senate floor wearing such finery. The Jacksonville Republican, you see, was a Texas Transportation Commission member for several years before running for the Senate in 2006. He had supported toll roads and the move toward the Texas Department of Transportation having private companies build and operate some of them.

Then, in February 2007, Nichols filed a bill to slap a two-year ban on such agreements. He said the half-century-long deals as written were bad for the state, potentially funneling bonanzas of toll profits to stockholders rather than to Texas roads. He had some specific safeguards in mind.

That audacious move by the rookie senator (albeit a 62-year-old rookie) was the spark for a session-long wienie roast of TxDOT and such "public-private partnerships." The moratorium took a ride on another bill and eventually became law. Another section of the law forever ends state authority for such agreements Sept. 1.

Last Wednesday, Nichols was wearing a charcoal-gray suit and muted copper-and-black tie as he laid out in committee another bill on the same subject. The conservative attire (his normal couture, by the way) is appropriate for SB 17, which is tied to the survival of long-term toll road leases.

You see, Nichols was never against the possibility of TxDOT hiring someone like Cintra-Zachry to build and run, and profit from, a Texas toll road. He was just against giving away the store.

So this bill, which Nichols spent a good chunk of the past 18 months criss-crossing the state to create and secure support for, would do several things:

It would require such contracts to have specific buyback prices on at least five-year intervals throughout a 50-year contract. So the state, if a private tollway were wildly profitable, could buy it back for, at most, these prearranged prices rather than a potentially much higher "market rate."

"Noncompete" clauses in such contracts, which require the state to pay the toll road company for building nearby roads that hurt tollway business, would be limited to 30 years. All roads in long-range local plans when the contract is signed, along with all interstates, would be exempt.

Local toll road agencies would have first shot at all proposed tollway projects.

Is his bill a poison pill, killing private-toll road leases softly by making them untenable? No, Nichols said. Toll road folks, he said, say such deals will still be possible.

Will private tollway leases still be legal in Texas? That question will be fought out in a separate bill, SB 404, carried by state Sen. John Carona, R-Dallas. If so, however, Nichols' bill aims to make them a better deal.

Getting There appears Mondays. For questions, tips or story ideas, contact Getting There at 445-3698 or bwear@statesman.com.


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"This is the demise of the Trinity Parkway, but its corpse is still warm..."

Dallas Mayor Leppert forged ahead with Trinity plan despite corps' concerns

3/22/09

By MICHAEL A. LINDENBERGER
The Dallas Morning News
Copyright 2009

As voters prepared to decide the future of the Trinity toll road in the fall of 2007, newly elected Mayor Tom Leppert said again and again that he had been assured by the U.S. Army Corps of Engineers that running a toll road between the Trinity River levees would be safe and cost-efficient.

"The Army Corps of Engineers and TxDOT and NTTA have studied this," Leppert told a crowd at the League of Women Voters debate on Sept. 25, 2007. "They say it is safe. They say it is environmentally sensitive and they say it is economically viable. ... They are the experts ... and every single one of them say it's viable and it works, it can be done and there is no reason not to believe it is [going to be] done."

But for months leading up to the election, the city had been told repeatedly about concerns regarding the road's route between the levees – concerns that could affect its cost, safety and potential for ultimate approval by the corps. And those concerns were never discussed by Leppert and other toll road backers during the campaign.

Documents released this month as part of a nearly 4,000-page environmental review of the proposed Trinity Parkway project show that the corps delivered its concerns in a Feb. 16, 2007, memo. In March, April and May, city staff met nearly every week to discuss the corps' concerns with representatives from the state Department of Transportation, the corps and the North Texas Tollway Authority.

The corps worried that building the road in the levees would jeopardize the 80-year-old earthen dikes that protect downtown Dallas from floods. It did not rule the route out, but the corps issued a stern warning that engineers had to find a way to mitigate those risks. The memo set off months of meetings by city staff and their partners on the road about how to fix the problems, according to documents in the environmental review.

Leppert said Friday that he was always honest during the campaign. He stands by his statement that the corps assured him building the road between the levees would be safe and cost-efficient. But he said he also told audiences often that ultimate approval from the corps would have to wait until the agency saw a near-final design for the road.

"I asked then and I keep asking, 'Is there anything that at this point in time would keep us from crossing the goal line?' Their answer is no," the mayor said.

Those same construction concerns have emerged in the last month as potential problems not just for the toll road but also for the Margaret Hunt Hill Bridge. The corps continues to say that until more is known about the soil beneath the levees, it is loath to approve significant construction there. It fears that water could seep downward along the smooth surface of the piers or other supports built into ground and eventually flow underneath the levees, possibly causing them to fail.

The latest plan calls for five concrete walls along the proposed path of the parkway at a cost of about $45 million, but if the corps deems them insufficient, that price tag could skyrocket.

Leppert said he met with the deputy commanding general of the corps Thursday in Washington, D.C., and asked him again about any concerns.

"The reality of it is this: Are there issues that are going to come up? Yes. But nobody said that it can't be done or that it's unsafe or that you will never get there. Nobody in the know has ever said that."

Dallas City Council member Angela Hunt is the one council member who has opposed the Trinity toll road from the beginning. She said she thinks the mayor's sales efforts in 2007 got ahead of the facts.

"The mayor is a salesman," Hunt said. "I was there, telling him the corps had not approved this thing. He knew that what he was saying was not accurate. But I think he believed he could make it accurate, given some time. He sincerely believed this project would win approval and that, a year down the road, everything would be just fine."

Kevin Craig, the Trinity project director for the corps in Dallas, was with Leppert at the Thursday meeting in Washington. He said the corps has worked closely with the NTTA and the city for years on the project and never said the road couldn't be built. But he was equally clear that it has never said its approval is certain.

"We helped brainstorm different ideas about how to remediate the road's impacts to the levees," Craig said. "But that certainly has always been done with the understanding that any kind of approval would be dependent on geotechnical analysis. So we would never have been in a position – then or now – to give some sort of green light until we saw designs and technical data that show the road is not injurious to the levee system."

"Even yesterday, we said to the mayor that we are committed to working with you to identify solutions, and we are committed to that. But we can't approve anything at this point. I can't say we've come across anything at this point to which we could say absolutely no or absolutely yes."

The Feb. 16, 2007, memo from the corps said it was worried that the road and its ramps would cross the levees in five spots, creating five areas where water could seep into the ground near the piers and eventually travel under the levees themselves, potentially causing them to fail.

In the months following the corps' memo, ideas for how to address these concerns ranged from building up to five new bridges – with spans as long as about 550 feet – to building a series of concrete walls 100 feet deep into the bedrock at each of the five crossings.

Last week, Trinity River Corridor Project manager Rebecca Dugger, an engineer with the city, said the bridges option was rejected because of the complex engineering required and big price tag, then estimated at about $190 million.

"It would have been like having to build five new Calatrava bridges," she said, referring to their engineering complexity.

On May 7, 2007, the interagency group briefly discussed moving the road out of the levees altogether and running a tunnel beneath Industrial Boulevard as a way around the problems. But NTTA quickly ruled that option out, saying the cost could reach $5 billion

The minutes from these meetings of the Trinity Parkway's geotechnical team included in this month's environmental report show that discussion of the other options persisted well into the spring, even as the city was talking down Hunt's efforts to win enough signatures on a petition to force a vote on the project that fall.

The group finally decided on what seems to be the least expensive option – building the five concrete walls at a cost of about $45 million total.

NTTA project director Dan Chapman said this past week that those costs were included in the cost estimates used during the campaign, but he conceded that none of the group could have known at the time whether the corps would ultimately sign off on the approach.

The worst-case scenario then was the same outcome project engineers are worried about today. The corps may decide that inserting new concrete walls into the levees will increase the risk of flood. If so, it could require that the walls be extended for nearly 10 miles – at a cost that could reach hundreds of millions of dollars or more.

The city knew about these issues in the summer and fall of 2007, as the campaign heated up.

Former City Council member Craig Holcomb, another leader of the pro-toll road campaign, said that he had not known specifics about the need for concrete diaphragm walls during the campaign, but that providing too many details would have distracted voters.

"If we wanted, we could have bored the public to tears with all the details, both positive and negative, but if you do that, they quit listening," Holcomb said. "The fact is if questions were asked, we answered honestly.

"Part of the problem we had – on my side of the table – is that if I were to bring up diaphragm walls – and at that point I didn't know about those specifically – well, typically in most forums you get two or three minutes to talk, and definitely only get two or three minutes to get the people energized about the project."

The disclosure that there were concrete concerns about the parkway's route through the levees voiced well before the election – but not addressed in detail during the campaign – has disappointed some voters.

"In hindsight, I do not think that the city leaders were truthful or as open as they should have been about engineering issues and costs," said North Lakewood resident Lee Carter, who said he voted against the referendum to block the roadway precisely because he wanted to strengthen the hand of Leppert, who was newly elected and had taken a lead role in pushing the toll road.

He now says that not enough tough questions were asked – by officials or by the media – and that city officials labeled parkway opponents as cranks.

For now, Hunt hopes the fight over the toll road is over soon. "This is the demise of the Trinity Parkway, but its corpse is still warm. I hope we can move on," she said.

Other council members – including Deputy Mayor Pro Tem Dwaine Caraway and Mitchell Rasansky – declined to predict the death of the parkway, but said the council will ask more questions about other routes. Both men supported the toll road in 2007, and now say they should have been told more about the corps' concerns.

The Federal Highway Administration is still studying a total of eight possible routes, though some of those have already been ruled out by the corps. Public comments are being accepted until May 15, and a hearing will be held May 5.

But Leppert said talk of other options is badly premature.

"I am just not one to throw my hands up and say we can't do it," he said. "The city has looked at all these other options for years. Frankly, if there was a better solution [than building in the levees] we would have taken it a long time ago, gladly."


© 2009 The Dallas Morning News: www.dallasnews.com

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