"It's just not appropriate to sidestep major environmental laws in an emergency appropriations process..."
By MICHAEL A. LINDENBERGER
The Dallas Morning News
The city of Dallas wants the controversial Trinity Parkway built between the aging Trinity River levees – even if it takes an act of Congress to do so.
At the city's request, Sen. Kay Bailey Hutchison has inserted two provisions into an unrelated spending bill that would exempt the Trinity River parkway and the larger Trinity River Corridor Project from federal laws that could otherwise prevent the road's construction between the levees.
The legislation is in direct response to warnings by the U.S. Army Corps of Engineers that it may declare the entire Trinity River levee system – including the earthen dikes, pumping stations and other flood-control features – "historic" under the National Historic Preservation Act.
Such a designation, federal highway officials have acknowledged, would make it extremely difficult for the Federal Highway Administration to approve any path for the toll road that would run between the levees, thanks to federal environmental laws that are especially strict for transportation projects.
Dallas City Manager Mary Suhm said Tuesday that the historic designation could slow other work, as well, including efforts to restore the levees' integrity in time to prevent the Federal Emergency Management Agency from issuing new flood risk maps for Dallas. The city expects to spend up to $150 million to improve the levees so they can be newly certified to protect against a so-called 100-year flood before 2011. That's when FEMA expects to issue the maps, which determine what residents and businesses in various parts of the city pay for flood insurance.
"It was a concern," Suhm said of the possible historic designation. "It could have delayed the levees fix and caused premiums behind the levees to go up – and delayed mitigation of the danger of flooding identified by corps."
A Hutchison aide said safety was the Republican senator's prime concern.
"This is first and foremost a public safety issue," said Lisette Mondello, a senior adviser to Hutchison. "If there were to be additional delays ... the residents and business around downtown Dallas would be forced to acquire flood insurance at a cost of millions annually."
But the primary impact of a historic designation, which the corps said Tuesday it is still considering, would be on the toll road, not on the flood control work. Federal law makes it relatively simple for the corps to navigate around the designation, but the federal highway agency has much less discretion.
Kevin Craig, the corps' manager for the Trinity River project, said the designation would require the corps to coordinate with the Texas Historical Commission, but doing so would not slow the flood control work to any appreciable degree.
"Honestly, I don't see that is the case," Craig said. "We don't anticipate [historic designation] would delay or stop the work required for the 100-year improvements."
The two provisions, known as riders, are brief additions to the Senate version of a lengthy defense-spending bill that had passed both houses of Congress this spring.
The Dallas-related language was added only to the Senate version, though Suhm said the city has consulted with Rep. Eddie Bernice Johnson, D-Dallas, as well.
Next, the two versions must be reconciled in a conference committee before the bill becomes law.
The first Hutchison provision would give the corps permission to proceed with its environmental assessment of the Trinity River Corridor Project without the usual requirement that it determine whether structures or places affected by its project should be considered historic.
That would essentially stop its consideration of whether the levees are eligible for historic designation.
The second rider would simply create a special exception to federal law for the Trinity River toll road.
The highway agency must decide where, if anywhere, the Trinity toll road can be built. It is reviewing a number of remaining potential routes, including one option between levees heavily favored by the city.
But if the levees are deemed historic, federal law would require the agency to pick a route that does not impact the levees, unless no feasible alternative exists.
To avoid that restriction, the second rider would simply exempt the highway agency from complying with that law for the Trinity River project.
"This is questionable on all fronts," said David R. Conrad, a senior water resources specialist with the National Wildlife Foundation in Washington. "It's just not appropriate to sidestep major environmental laws in an emergency appropriations process. When this came up, I started to get questions from all around Washington. ... It raised concerns immediately because it would waive major environmental and historic preservation laws."
Craig declined to criticize the move to exempt the Dallas projects.
"We will comply with the law as it written, and if it is amended, we will comply with the law then, too," he said.
A spokesman for Mayor Tom Leppert said he supported the legislation.
"Mayor Leppert was aware that city staff had discussed this with the senator's office," said chief of staff Chris Heinbaugh. "The mayor supports any reasonable solution that will help the city get the levee repairs completed quickly and he knows that flood safety is in the forefront for both Senator Hutchison and Representative Johnson."
© 2010 The Dallas Morning News: www.dallasnews.com
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