September 15, 2009

Super Highway Standstill

Executive Editors: Dan and Margaret Byfield
Standing Ground

We now have gone through three full legislative sessions in Texas since 2003, when the Legislature created the Trans-Texas Corridor, the quarter-of-a-mile wide superhighway designed to connect Mexican ports to Canada by creating an international highway through America.

Once again, in 2009, nothing has been done by the Texas Legislature to stop the largest land grab in American history.

In fact, the Texas Department of Transportation (TXDOT), the lead agency for the project, was up for sunset, a review process that determines whether the agency remains in existence, and if so, whether the agency is restructured. Although the Sunset Committee proposed several changes to the governance of the department, none of the changes were enacted. Instead, the Texas Legislature extended TXDOT for two more years and made a $2 billion appropriation for the state agency.

Although opponents of the TTC would have liked to have seen the superhighway killed by the legislative body, so too would the governor and TXDOT have liked to have enacted some necessary authorizations to continue the project, but neither happened. The 2009 Session was a critical stalemate for the TTC, providing some welcomed opportunities for local governments using coordination to stop the international highway.

The Session began with an announcement by Amadeo Saenz, the executive director of TXDOT, that the Trans-Texas Corridor was “dead.” The reality is that these projects were just renamed to the “Innovative Connectivity in Texas/Vision 2009” and are to move forward segment by segment.

Even Governor Rick Perry announced that “the days of the Trans-Texas Corridor are over,” but later said, “We really don’t care what name they attach to building infrastructure in the state of Texas. The key is we have to go forward and build it.” A significant number of road builders and businesses betting on the corridor have contributed to his campaign, so it is easy to understand why his comments indicate that the change is not much more than a public relations campaign. The TTC is alive and well.

As the 2009 Regular Session opened, controversial transportation legislation was filed and the battle began in earnest. The one bill introduced by David Leibowitz from San Antonio that actually killed the TTC was buried in committee. HB 300 became the vehicle upon which every amendment and wish list for the transportation department was attached.

In one overnight session, the bill ballooned to over 1,000 pages and was attempted to be voted on within 24 hours. Fortunately, it died on the last day of the Regular Session when the grassroots and rural folks opposed the effort.

In reality, nothing changed regarding TXDOT or the Trans-Texas Corridor. All the work and effort to kill it died on the floor of the House and Senate, but that also meant that everything TXDOT and the governor wanted died as well.

Remember, TXDOT was up for sunset. In other words, they had to be reauthorized statutorily by the Legislature or they would be extinguished. For several hours, many hoped TXDOT was gone, but the governor called a special session to deal specifically with transportation and approximately 20 other state agencies that remained unauthorized at the end of the Regular Session.

Special Session Gets Interesting

What occurred during the Special Session was nothing short of miraculous. Several bills were filed. SB 2 reauthorized TXDOT and all the other state agencies. The governor attempted to reauthorize TXDOT for four years, but the grassroots opposition were able to hold the legislators to only two years. TXDOT will once again be sunset in 2011 and the Legislature will again have to consider how to restructure TXDOT.

The other bill was HB 1, relating to funding of highways and transportation projects in Texas. It passed, allowing $2 billion worth of bonds to pay for highway con- struction and improvements, but removed any ability of TXDOT to use the funds for conversion of existing highways to toll roads and to build any new toll roads. So, that was a miraculous victory that no one expected. It showed how, when the only issue was transportation, the legislators weren’t willing to stick their necks out on such a controversial issue as toll roads.

The most interesting battle during the Special Session came from SB 3 and HB 4, filed at the governor’s and TXDOT’s request to reauthorize Comprehensive Development Agreements (CDAs) that would allow public/private partnerships (foreign companies) the ability to contract with the state to build toll roads.

During the Regular Session, no future CDAs were authorized, which were necessary for TXDOT to build the individual segments of the Trans-Texas Corridor, as well as other toll projects. Senator John Carona, Chairman of the Senate Transportation Committee, had also tried to pass legislation in the Regular Session that allowed local authorities to place on local ballots a referendum to raise taxes for highway construction.

That one amendment turned most legislators against HB 300, killing the bill in the Regular Session. When Governor Perry called the Special Session, he did not place Carona’s local tax bill on the Call. Senator Carona was furious, and he took out his revenge on the governor during the special session seeing to it that the Governor’s bills, SB 3 & HB 4, were killed. Carona wouldn’t allow SB 3 out of the Senate unless the governor placed his pet bill for taxes on the Call.

The dispute became a classic political standoff where members of the same party devoured their own. The end result: no additional CDAs were authorized, paving the way for the argument to be made that the Texas Legislature did not authorize the necessary segment contracts that would allow the building of the Trans-Texas Corridor. Therefore, whether deliberate or not, they in essence denied the continuation of the TTC project.

A Return To Local Control

The fight that took place in the Regular and Special Sessions and the reason TXDOT has not yet begun to build the Trans-Texas Corridor can be traced back to the stand taken at the local level by five 391 sub-regional planning commissions. Two years ago, American Stewards helped form the first 391 commission, which began requiring TXDOT to coordinate with local governments.

Since the beginning of these efforts, TXDOT has had to change their top down management approach to the project. When we first notified them they were required to coordinate with the Eastern Central Texas Sub-Regional Planning Commission (ECTSRPC), they quickly changed their internal rules to include “coordinating” with local units of government.

Then, they formed Regional Advisory Segments and Councils where they appointed their own “local” people to “advise and coordinate” with the state on transportation issues. They then began forming Rural Planning Organizations (RPOs) in conjunction with Councils of Government and told them funding would come during the 2009 Legislative Session to finance the effort. It all failed when HB 300 died, but the point is, they formed these RPO’s specifically to combat the 391 commissions that over time sprang up in nine locations across the state. They needed a similar group to claim that “local” people wanted their vision of transportation, not the 391 version.

Then, the first announcement came in the summer of 2008 that one of the two major new corridor TTC routes planned, TTC-69, was dead and instead they would be using existing roads as the path for the superhighway. Several months later, and strategically timed immediately before the start of the 2009 Legislative Session, TXDOT’s executive director made his famous announcement that the entire Trans-Texas Corridor project was dead (renamed “Innovative Connectivity”). Both claims are absolutely false, but politically calculated to soften the opposition going into the legislative session.

The 391 commissions continue to press forward, ensuring the project, by any name, is coordinated at the local level. Last June, at the end of the regular session, the ECTSRPC again raised the issue before the Federal Highway Administration (FHA), filing a second petition, this time requesting the entire environmental study be rejected.
The 27-page petition illustrates why TXDOT has lost all credibility to prepare a valid environmental study, that the time has expired for them to complete the study under the Texas Administrative Code, that the Texas Legislature specifically denied passing authorization for segment building contracts (CDAs) for the TTC, and that the entire project, by their own admission, has changed significantly making the current TTC environmental study obsolete.

The FHA responded to the commission [ECTSRPC] with a letter, giving the local government petition the same weight as a public comment. In response, the commission [ECTSRPC] immediately sent a short, pointed letter to Janice Brown, FHA Administrator for the Texas Division, copied to the Department of Justice, as well as the Secretary of Transportation, Ray LaHood, stating:

“We will not have our complaints, based on fact and law, passed off as though they were mere comments. Our issues and the issues of thousands of Texans are with you and your agency within your federal obligation of oversight of TXDOT.
Mr. Jackson’s letter will be exhibit 1 in whatever action we take, as an admission of your continued complicity with an agency which the Texas legislature again rejected in the Special Session. We could not believe that the “brush off” as a mere public comment was sent with your knowledge and understanding of the consequences which we made clear in our Petition. This is your chance to tell us whether you intend to answer the questions posed in behalf of the citizens of this Planning Commission, or whether you desire to be the defendant in one or more of the above actions for refusal to even consider the merits of valid complaints based on factual legal violations of federal law.”

The letter was sent June 16, and the commission is waiting for Federal Highway’s response while preparing for the next step. In the interim, the environmental studies for the two TTC segments have not been finalized. In a coordination meeting held in October 2007, TXDOT informed the ECTSRPC that the I-35 study would be finalized in January 2008. That still has not taken place, and the only reasonable conclusion is that local governments initiated coordination on the project whereby they have brought to the agencies attention issues that should have been addressed in the study, and can be challenged in a court of law.

Through this process, local governments have met with not only TXDOT, but also other state and federal agencies connected with the project. In these government-to-government meetings, and through follow up letters, the commission has pointed out numerous violations of law made by TXDOT. They have also received commitments and omissions from the agencies that would be damaging to TXDOT if the issue moved to a court of law.

Local governments, through coordination, have been the only viable opposition to the once fast-tracked project. It’s now at a standstill as TXDOT and the Federal Highway Administration determine which direction to head, given the illegalities of the environmental study. Another key element of this decision will be the importance the new President places on the NAFTA trade corridor, of which the TTC is the first leg.

Delay of the project was the commission’s first goal, hoping that over time the financiers behind the superhighway would lose interest while the devastation of the agenda to America became more public.

Now, it seems, that may be occurring. Cintra, the Spanish-owned Corporation in line to build the TTC, if approved, is also a major investor in an Indiana toll road that cost $4.8 billion to build and is now estimated to be worth a fraction of that expense at $405 million. Toll roads everywhere are proving to be a bad investment. One could hope that good business sense will take hold, and not a political agenda, when deciding whether to move forward with the Trans-Texas Corridor.

Finally, A Rural Transportation Plan

In tandem with fighting the illegalities of the environmental study, the ECTSRPC has also been developing a transportation plan for the area covering their jurisdiction, the eastern half of Bell County and western half of Milam County. The Bartlett-to-Buckholts Rural Transportation Plan was finalized this spring and is the first transportation plan in the state prepared entirely from the rural perspective. A copy was sent to all the affected state and local agencies, including TXDOT, as well as, the Commissioners of Bell and Milam Counties.

Two of the Bell County Commissioners met with the ECTSRPC at their regular monthly meeting in June. The meeting was another coordination success for the commission. A key issue addressed in the plan was the numerous roads that remain unpaved, resulting in increased wear and tear on the five school district’s buses. The Commissioners agreed to increase the miles allotted for paving these roads and agreed to prioritize those roads identified by the school districts.

Another positive response to the plan came directly from TXDOT’s executive director, Amadeo Saenz, in a letter dated June 12, 2009: “Thank you for providing the Texas Department of Transportation with a copy of the Bartlett-to-Buckholts Rural Transportation Plan. I appreciate your research and coordination efforts related to the factors affecting the complex movement of people and goods in central Texas. We will use this information as we go forward with our planning efforts. We also look forward to continued coordination with your commission, along with the many partners that are involved in transportation-related issues in Williamson, Milam and Bell counties.”

It’s no secret that in the beginning the agency and certainly the governor did not relish the idea of coordinating with the now five unpaid mayors and their school districts that make up the ECTSRPC Commission. They did so and continue to do so because refusing would place them in violation of the law. Two years into the process, they appear to be honoring that commitment, not only to the ECTSRPC, but to the five other working Commissions in the state as well.

The ultimate conclusion to the TTC project is still unknown. But what is known is that the superhighway would have been half paved by now and over 500,000 private acres of land would be in line for condemnation proceedings if these courageous local leaders had passed up the opportunity to use the coordination process available to all local governments.

Instead, they took a critical stand and today continue to carve out a path for local governments to follow.

No longer does the TTC buck stop at the Texas Governor’s office. It stops in eastern Bell County.

© 2009 Standing Ground:

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