San Antonio, TX, Thursday, August 7, 2008 - In what amounts to a total victory for the grassroots, TxDOT has to ask a Bexar County federal district court for a 60 day delay in TURF's 281 toll road lawsuit so they can beg the Federal Highway Administration (FHWA) NOT to yank their environmental clearance for the US 281 toll project. Through the discovery process of the lawsuit filed by TURF and Aquifer Guardians in Urban Areas (or AGUA), Judge Fred Biery required TxDOT to hand over the complete administrative record for US 281, including all the financials and the documents from when the improvements were funded with gas taxes that would keep US 281 a FREEway. It's been discovered that TxDOT withheld key documents not only from the public and TURF attorneys, but also the FHWA!
There is an extensive email record that shows TxDOT tried to "fix" the environmental work for US 281 to pre-determine a "Finding of No Significant Impact" (or FONSI) BEFORE the environmental study was even conducted.
"They rigged it! That is a DIRECT VIOLATION OF FEDERAL LAW," says TURF Founder, Terri Hall.
TxDOT then hired a company, HNTB, to do the so-called "independent" environmental study even though HNTB has a MAJOR conflict of interest, in that, the Alamo Regional Mobility Authority (ARMA) also hired HNTB to do the preliminary engineering for all their toll projects. So HNTB had a vested interest in a "Finding of No Significant Impact" (or FONSI).
Then, it's also been discovered that TxDOT purposely withheld a key study from a geologist they hired that stated the potential harmful effects of the toll road on the Edwards Aquifer. Such a study didn't conclude what TxDOT wanted it to in order to get clearance from the feds, so they intentionally hid the report and failed to submit it to the FHWA who uses that crucial information in their decision on whether or not to give federal approval for the project.
TxDOT now has to submit these documents to the feds who will completely re-consider their previous approval of the US 281 toll road. It's likely the feds will yank their environmental clearance for the toll road in light of this deception by TxDOT. If they don't, the court is likely to do it for them. So TxDOT is in total damage control mode and released a statement (see below) about their motion for a 60 stay in the US 281 lawsuit that tries to minimize what the documents reveal and, of course, blames the citizens who brought TxDOT's deception to light for the delay instead of their own incompetence and willful dishonesty.
"As usual, TxDOT seems to think they can wiggle out of their corruption without consequences simply by supplementing the record, and essentially telling the feds and the court, 'oops, we left out some key stuff, but approve our rigged process anyway.' They were FORCED to come clean through a lawsuit brought by concerned citizens, not by them being forthcoming. The tactics at TxDOT never cease to amaze," notes an incredulous Hall.
For more information on the TURF/AGUA US 281 lawsuit, go here and here. .
TxDOT's official statement on the request for a stay in litigation:
The Texas Department of Transportation (TxDOT) has asked a federal district court judge to issue a stay of the litigation regarding the expansion of U.S. Highway 281 in San Antonio. We recently located documents which they feel may need to be reviewed by federal officials as part of the environmental evaluation of the transportation project.
In the process of responding to discovery requests for the lawsuit, staff identified documents that had not previously been submitted to the Federal Highway Administration (FHWA). TxDOT will submit these documents to FHWA for their review. FHWA will then determine whether the administrative record for the U.S. 281 project should be amended and whether the project's prior environmental clearance would need to be reconsidered. In order to provide FHWA time to review the documents, TxDOT requested that the ongoing litigation be delayed up to 60 days.
"Every day that this project is delayed is another day that Bexar County drivers are stuck in traffic," said TxDOT Executive Director Amadeo Saenz. "Nevertheless, we are committed to making sure that the 281 project complies with all federal and state requirements. The extension we requested would allow FHWA to review these new documents and come to an independent decision about how to proceed. We recognized that we should bring these documents to the attention of FHWA, and we want to make sure they have the time they need to review them."
Saenz said that the documents will be submitted to the FHWA out of an abundance of caution. "A new, more conservative view of TxDOT’s records related to the 281 project would require these materials to be forwarded to FHWA," he said. "We wanted to take the cautious advice of the attorneys and give the FHWA another opportunity to review this project. On balance, this is a small addition to the 24,000-page administrative record, but it deserves scrutiny from FHWA."
In its filing with the court, the department wrote that it has no intention of delaying the proceedings but wants to ensure that the FHWA has ample time to examine the recently identified information to determine whether the administrative record should be amended.
We recently adopted new policies on how to assist FHWA in the preparation of the administrative record showing the environmental review of a transportation project. "Preparing the administrative record for a complex transportation project is an enormous task. We will do our part to make sure the process is the best it can be," said Saenz.