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Home My WebLink About20131200.tiffRECORD OF PROCEEDINGS MINUTES BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO MAY 15, 2013 The Board of County Commissioners of Weld County, Colorado, met in regular session in full conformity with the laws of the State of Colorado at the regular place of meeting in the Weld County Administration Building, Greeley, Colorado, May 15, 2013, at the hour of 9:00 a.m. El ROLL CALL: The meeting was called to order by the Chair and on roll call the following members were present, constituting a quorum of the members thereof: Commissioner William F. Garcia, Chair Commissioner Douglas Rademacher, Pro-Tem Commissioner Sean P. Conway Commissioner Mike Freeman — EXCUSED Commissioner Barbara Kirkmeyer Also present: County Attorney, Bruce T. Barker Acting Clerk to the Board, Susan Brown Director of Finance and Administration, Monica Mika MINUTES: Commissioner Kirkmeyer moved to approve the minutes of the Board of County Commissioners meeting of May 13, 2013, as printed. Commissioner Conway seconded the motion, and it carried unanimously. a AMENDMENTS TO AGENDA: There were no amendments to the agenda. PUBLIC INPUT: Doug Meyer, County resident, submitted a copy of Eastern Central Texas Sub -regional Planning Commission's petition to the Federal Highway Commission regarding the Environmental Impact Statement for the TransTexas Corridor 1-35 (entered into the record as Exhibit A), which addresses, inter alia, impacts on local government of the Environmental and Farmland Protection Acts.. He also referred to the last issue of Standing Ground, with articles related to conservation easements, smart growth, and the Clean Water Act. He then stated his objection to the proposed Northern Regional Bike Plan to connect northern municipalities, referencing private property, takings, and the 5th Amendment, and especially objecting to statutes requiring property owners to give a certain amount to open space when they commercially develop their land. He stated people need to realize most of the open land they see is privately owned. ta CONSENT AGENDA: Commissioner Rademacher moved to approve the Consent Agenda as printed. Commissioner Conway seconded the motion, and it carried unanimously. Minutes, May 15, 2013 Page 1 2013-1200 BC0016 PROCLAMATIONS: a 1) WELD COUNTY EMPLOYEE HEALTH AND FITNESS MONTH, MAY 2013, AND WELD COUNTY EMPLOYEE HEALTH AND FITNESS DAY, MAY 15, 2013: Chair Garcia read the certificate into the record. Staci Datteri-Frey, Wellness Coordinator, representing the Weld County Safety and Wellness Committee, reviewed employee activities scheduled for the month of May. Commissioner Kirkmeyer and the rest of the Board thanked Ms. Datteri-Frey for her work. Commissioner Conway said a healthy workforce is a happy workforce and preventative measures provide substantial cost savings to the taxpayers. COMMISSIONER COORDINATOR REPORTS: Commissioner Conway reported on his participation in a groundbreaking in Dacono for the new Rickenbaugh Infinity dealership, which brings 25 new jobs to Weld County, and noted that several other dealerships are looking to relocate to Weld County thanks to the business friendly attitude and no sales tax. He also addressed Mr. Meyer's concerns with regard to open space. He said the Board has sent a letter to the Governor opposing Senate Bill 252 'Renewable Energy'. Commissioner Conway also announced the Governor will be at UNC today for a bill signing ceremony with Representative Dave Young, and there will be a `Senate Bill 252 Veto Rally' tonight at Johnson's Corner, with speakers and representatives; members of the Board will be present. [a Commissioner Kirkmeyer also commented on the new dealership in Dacono, noting that it costs three to four percent less to shop in Weld County. Commissioner Kirkmeyer also related that she helped distribute over 450 trees to towns throughout Weld County with Anadarko this week. She announced that Haliburton is having an opening next Monday in Fort Lupton where they will be introducing some of their compressed natural gas (CNG) fleet, and expressed her hope that some Board members could attend as she would not be able to do so. in Chair Garcia said in regard to the trails issue that Weld County should be proud that the Poudre Trail is an excellent example of how it should be done, with willing sellers and donors; it is not an easy process, but it was done without condemnation. aCommissioner Rademacher announced he would be proclaiming National Peace Officer's Memorial Day at the Fallen Officer Memorial at 10:00 a.m., and he invited the public to attend. NEW BUSINESS: 1) CONSIDER AGREEMENT FOR PURCHASE PERMANENT CONSTRUCTION EASEMENT FOR CERTAIN IMPROVEMENTS TO COUNTY ROAD 23 AND AUTHORIZE CHAIR TO SIGN NECESSARY DOCUMENTS — AMBER AND JOEL HAND: Jackie Hernandez -Barrow, Department of Public Works, said this is the final land -owner agreement for the CR 23 Intersection Improvement Project; a joint venture with Windsor, Severance and CDOT. She reviewed the land valuation determination, saying the purpose of this purchase is to give equipment adequate room to maintain the road. Commissioner Conway moved to approve said agreement, with revisions as stated in the record, and authorize the Chair to sign. The motion, which was seconded by Commissioner Rademacher, carried unanimously. RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the Consent Agenda. No Ordinances were approved. Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted by the Acting Clerk to the Board. Minutes, May 15, 2013 2013-1200 Page 2 BC0016 There being no further business, this meeting was adjourned at 9:40 a.m. BOARD OF COUNTY COMMISSIONERS WELD C,Y, COLORADO ATTEST: Weld County Clerk to the Boa BY: Deputy Clerk to the Bo Wil Doug -s Rade acher, o-Tem XCUSED DATE OF APPROVAL can P. Conway EXCUSED Mike Freeman CUSED DATE O APPROr Barbara Kirkmeyer Minutes, May 15, 2013 2013-1200 Page 3 BC0016 EASTERN CENTRAL TEXAS S PLANNING. mmISSmN. POBOx..i5l, onandr IX 76534, 254-657-246Q March. 22, 23-1$ Janice W. Brown 'Division Administrator Federal Flighwky Admit'si alton 30('East.Ix Street.: Austin} TX 78701 Dear Ms Brown; o1 zeC Enclosed is our formal request that you withdraw in its entirety the Draft Environmental Impact Statements for the Trans-Telas fi. rides 1-35 and I-69. To proceed to ;record ofd sior vpuld he a gross violation of law as there is no longer a viable project to be studied, when :in October of last year, your agent, the Texas Department of Transportation :publicly announced.that the iw35 Trans -Texas Corridor is .dead; Even. Without their public removal of this project,. allowing these grossly inadequate studies to proceed to a record of decision would be- a travesty to the people of Texas. For these reasons and the many others stated within the enclosed petition, we . respecti vely F y request that you withdraw before completion both. TTC environmental- stutfies 1 look for' ;tO Your titaolysesponse. Sincerely, Mae Smith President Enclosure; March 22t 2010 Petition to FHWA.to Reject ITC 1-35 &,1-69 environmental studies Atnadeo Saenz, E utitMeow;..T DOT Dr Alfredo Arruendariz, Region 6 Administrator, EPA %gnada.S'Moreno Assistant Attorney General, Environment and Natural Resources Division Laliood. Secretary of Transportation Doug Booher, Environmental Manager, Texas Turnpike Division, TxDOT Deirdrie Delesi, Texas Transportation Chairman EASTERN CENTRAL TEXAS S .REGION LPLANFNIM COMMISSION • 'O Box 157, Holland, TX 76534, 254-657-2460 BEFORE THE FEDERAL HIGHWAY ADMINISTRATION OF THE UNITED STATES PETITION TO WITHDRAW THE #x.15 FOR THE TRANS TEXAS CORRIDOR .145 AND 1-69 AND REJECT THE REQUEST -TO issuE A RECORD OF DECISION OF NO ACTION. L THE PARTIES.TO THE PETITION:. A. am Central Texas -Sib -Regional Planning Commission (hereinafter Eastern Central) is the:Petitioner in this case. Eastern: Central Is a unit . otiocatgoverernent formed pursuant to -Section 391 of the Texas Local Government Code, a copy -of which is attached hereto as Exhibit 1. Eastern. Central invoked its authority to have theTexas Department of Transportation (hereinafter TXDOT) coordinate with it regarding the preparation Of the_: nvironre tai Impact:Statement (EIS) for the Tracts Texas Car dori✓3S such coordination being required by Section 391 of the Texas Local Government Code,... Eestern-%entral also invoked itssauthoy-:to "havethe Texas Parks and Wildlife Department and Texas Department a _5555 t af-EriVirointental. al'tr coordinate regarding•the TTC-35 obrridor and their respo..nstbihties to ensure D11.46 0104 tif, the environment nthe proposed studyarea for the corridor- Eastern:Central 0'554 i raked its authonly under the National Enviirof rnental:Policy Act (NEPA')to have the. Regional office ofthe Environmental Protection Agency y coordinate regarding its t'A. oversight respons bilities, and to have the Texas offices of Natural Resource Conservation Services: rdina regarding � its oversight under the federal Farmland Protection Act. Eastern Contra was 'loaned irl.order to actively participate in :planning for future transportation, .utilities,. economic and agricultural growth and development In the sub -region formed by the townoof Holland) f artletf, Little River -Academy, Rogers ail located in Bell' FHWA .Petition 3/22/1,0 Page l2 County, Texas, The school.distrlcts associated with the townsJoined Eastern Centrai as non- v r gt embers. (bsequant toforntatjon, the town of Buckholts became a Member of Eastern Central as:,Well. .aS the BuckholtS school district) Previously Eastern Central hat'filed-with the Federal: Highway Administration. (FHWA) a Petition to Require preparation of aSupp1ement4 Draft Environmental Impact Statement (DEIS), and subsequently a:Peti + n'-Requestin. g fteoogin of the DENS submitted by TXDOT.. Eastern Central requests that ,FHWA withdraw both the ITC -35 and TrC-69 DEIS documents from further consideration,_ setting forth statement of facts describing the full inadequacy of both PEO c.1900. 60.00 issue a Recrd of .Decision refusing to adapt any alternative stated in. the flawed DEIS documents because there is no longer a viable project before it. The initial Notices of fntent published •by4FHwA. advised that FlI A would be the lead federal agency, so the DEIS documents are FHWA documents merely prepared by TXDOT.. s, The FederalHighway Administration is the Other Party in this Case Because By. Its -0%0 r It Was. the Lead Agency in the;D Whir* Was Prepared for FHWA byt#leTexasDep u ent of Transportation; The Federal Highway Admin tratIOn the agency responsible, as the lead federal agency, for the decision as to the Final Environmental Impact Statement: That is dear front both Notices of intent as fo fl 45 and *69.,: This piaces.the.FHWA in the unenviable position of making .a decision one -flawed D -which It _allowed. TXDOTto prepare. Throughout thecoordination P Qc s, Mgr T made dear thatit was preparing the DEIS, and only- co-nstriting.withF .wA in the procces .,. The first time-tbatTXD r offered io.deferto the:Ft WA was in -May, 2008 when Eastern Central petitioned -10r preparaOf P:Stippternental DEIS becauseof flaws - and inadequacies detailed in a' wenty-sbpagediscussion paper.. Ooug BooherofTXD1 T advised Eastern. Central by -e-mail on May 23, 2008 tbatthe request:shdutd be referred to FHWA Eastern Central had already hrhished the paper to FI V. ►X :didsso again with a transmittal letter of tune ID, 2008 to Janice ;Brown.., AdMinistr*atorof the Texan Division of FHWA. Ms, .Brown wrote a condescendingletter,. August 6, 2008, that refused to even acknowledge that the EHWAwa the responsibie.agency, but promisedto send a copy of our formal request, to.T'fur 4theiroansideration_and ask that it be included in the TIC 1.35 Prot. Recou#" . So, when FHWA had: a chance to correct the.untawful=DEIS, FHWA refused to do so,, eaten though: it was and is the revs:101We agency as shown:by the very first Notices of intent as to TT£'arcd 1; Peti,Ciroe 3121/.1.0 . Page I3 The FHWA is'respon lb1e:forall the unlawful activities of TXDOT during. preparation of the DEIS and •for ail the flaws and inadequate In the. D.E15. 2. • SUMMARYCF RELIEF REQUESTED BY PETITION: A. The$tateof Totes Has Formally Withdrawn from Consideratlonthe Trans Texas Cdor oncept).SoThere Is No Viable Project Legally Before this Agency. B, Even 'H*4f Withdrawn awn The Project From Oonsideratlor, Texas OfftelaIt Are Playing Political Game and Attempting to Use This Agency as an IccoMpliceI;o an,EvasiOn of I P.A and OtherFederal Laws. C. This Agency Mat Withdraw the DEIS for the Trans -Texas Corridors Projects 1- 35 and 1-69. . DETAILED STATEMENT OF RELIEF RECIPESTED A- The Ocivernment of Texas has publicly and officially withdrawn the corridor 'projects; se, there is nor viable . project for which you can. lawfullyissue a Record of Decision onthe DM pending before you. I. Federal law does not allow: you to: issue any Record of Decision when there is no viable project before you. The Government of Texas has publicly and off iciallywithdrawn from your consideration the Corridor contept for which the DEISWat'specifically derie[oped.. The enietr-of Texas and his appointees are using your agency as their shill in a shell garnet!) e keep the Trans Texas Corridor amain. c :the governor wins €e -election. While claiming publicly That the concept'$ dead, for campaign purposes, the governorhopes to keep. the 'project alive -through your agency.: If -you Issue a 'no action' alternative, thenafter the election Texas tan revive the concept arid move forwardwithout a new and adequate EIS. You cannot become an accomplice to D(DOT.by allowing such evasion of the law, Even though the. Governor. of Texas has announced publicly that he has withdrawn the entire Trans -=Texas corridor project concept fromconsideration, TXDOT has not asked to withdraw or have withdraw u owra you Tu � €hat it prepared under your order. Rather, -MOT has asked that you issue a record of decsi; m::witi w uo action". onthe project. If you grant the TXDC'lT retjuest.„..yoti Will leave the corridor concept in such a state that if the Governor Wins he. can .. loomed with , dream of the Corridors WITHt3HT UNDERTAKING .;ANY FURTHER ENVIRONMENTAL IMPACT STUDY. HWA P t:ition 3/22110 Page 14 Under therules implementing NEPA, if you issues 'no. action' record of decision, and the GGo ern r .decidesto change his Mind and proceed with The corridors, he and'TXQQT can do so wiou#'deu e1Gping a. new EIS, Texas can rely on the pending:hawed DEIS. You are well aware of the haws in the penchng DEIS. both through petitions filed by Eastern Central e lawsuits file. d by TEXANS UNITED : R REFORM and FREEDOM, Such action on your and part necessarily lead to litigation invoking Y witl your agency as the prime defendant. issuance Ufa "no action" Record of particularl . ��n willcx�nstitute a fraud against the people of Texas, y the members of Eastern Central end other sub regional coinmissIons and organizations * have worked diligentlyto point out to you the unlawful flaws in the. DEIS. In the:event of siiChfraudulent action, Rl • must be considered by Eastern Central_ The.Governor of -. Texas has announced that his TXDOT.wiil pursue ordinary, traditional expansion work on ahead exist�n hl . y R. ghway systeirt. To that end, the Department of Traanspartation has flied with you a letter requesting that you adopt the 'no action' alternative. If, in fact, tt a Gt arernor arise his minktits truly have abandoned :the corridor c concept; they not shin .. why ply ask that you withdraw from d for consideration your DEIS 'i+i�ith " .. . Why request that .... �......f� prepared . or you. :adopt a� .no action' na€ivoon a terribly and erttlatnily flawed DEIS, rather than request thnt you withdraw. your � DES:.and tae .110 action on it, The :answer to thatquestion ion tam .duping a legislative hearing in Texas just weeks ago, on FebrilarY 203,0. t uri+ g a joint hearing of the. Senate and House Transportation Senata'r. kolin Corona asked Arnadect 5aeriz, Executive Director of `TXDOT a direct question: if i Xdf?T changed Its mind tomorrow and .deelde d to 4uild the Trans Texas. Corridor, does it have theatatutontauthority-to do;sc SaerWaanswer; "Yee This _ answercame after several minutes Of soft shoe dancing during which Saenz talked about The Corridor beingdead, the concept king no longer alive, and your agency issue 'skiain�' .ala�t -g � being requested to lit. bottom line, he and the Governor and: the Transportation Commission believe that they ham theau#o. r to change their position and build the Corridor. If you play the €or�:xc! these bUr eaucrats, and issue a 4rno action" record of decision, you will be J11 'ipavingthe way to:a political fraud:on thepeopfe of Texas, and a sneeringlyopen violation of further evidence that the:m embers of GovernorPerry's Transportation: Commi-ssion are pushing ahead on the corridor concept in. Commission workshop on gust 26, ;009.. Commissioner Ned Holmes urged staff to press the Attorney General's offiGe tci motto ahead rtiore quicklyto get signatures; of the foreign -Ftiwi Pei; ti. 3122/t0 Page l5 corporation on a construction development agreement for Trans Texas Corridor 69. e transcript of.the c ornmernscan bee seen and reviewed on the website for Texans .Us iting:For Reform and Freedoi% T F; Where.TURF`s Executive Director Terri .Hall keeps close watch over the Governoes ployS to accomplish teli finaflcing, for the benefit of foreign .partners,) # all haswelidocurnented the states attempts to violate the law by -turning tax constructed highways iritotoll roads, forcing Texans -to pay for already constructed highways over and over and over again. •Toavoid beco a.dupe Ina political scam, yo4.i.inust do what tile: law requires,.withdraw your-Ownr-OWn 'DEIS because there is currently no valid, viable project to be rem Thin is. r DE S•andd yob can -withdrailit It on your c +t.: Badtgro nd of the TransTexasConidor project The: initial concept for a tolled Trans Texas Corridor`.System was formally announced in 2002. .1boannouncemert Was only: a conceptual description.. Texans opposed toll -roads at that time, as they OH do, But; the le 5li tore atad:Administration had already made its decision about the f ture.n. highway fundiM..Through a long series of announcements, press releases. and meetings, TXDOT pronouncedthe'danger . of a rapidly growing Texas population if adequate highwayrelief'werenot created. They promoted toit.reads financed by foreign corporations as the answer_ Mass opposition lay Texarts,,expresSed through publicmeetings, legislative Wirings _and tiirou w.ebsiteeRke TURF, supra{ was. in vain: and Vac- ignored. Behind the scenes TXDOT staff was working with:you at the Federal.Highwayf. Mndnistration to develop the plans for -the .first and, most critical lkikin the national'trade corridorfrom Mexico to dada, the Tr. s Tex:Corrldpr. The plans; intimately linked .i-69, a project already underway wit::thenew T'rar w1ex s_concept for :1-35. . . Your agency and TXOOT'did niot revealthe true: relationship between the 69 and: 35 pro ects until Notices of intent for development of Environmental impact Statements were necessary. Acknowledged entanglement of thetwo w*u d<aecessitate considering each in the cumulative analysis for the other., TX -DOT! and apparently you too, wanted to avoid that.analysis because it would clearly provethe tainulative disasterto unique ecosystems, and: to the environment, human and natara. At the very least youbecarne an accomplice to the Misleading of the Texas public. During the coordination piss:_initiated _.y the local toWn and school district governments that formed Eastern .Central, TXDOT representatives repeatedly denied the need for cumulative anaiysiS because they claimed the two projects were entirely independent of each other. That FHWA Petit.i.on .3122.1'tti Page Is denial was fraudlent:h- that It flew in the face of your agency's previous acknowledgement of intimate linkages between the two. Throughout the lrnvironmentai Impact statement process TXDOT publicly carried the banner as the "lead agency." But, when a formal Petition for Preparation of a Supplemental DEIS was filed by Eastern Central the true nature.of-the relationship 'between your agency and TXDOT emerged. When Eastern Central filed�that Petition with.TXDOT, both IXOOT and Our agency began backing toward the coor, pointing at each other as the responsible party: TXDOT said that it was your responsibility to act on the request for supplement, thus directed that the Petition be filed with Wis. Janice Brown, administrator of your Texas Division: Eastern Central had aiready filed it - with Ms. Brown, but she condescendingly and without shame simply referred, it back to TXDOT for inclusion in the record of your own DEIS. She made no acknowledgment Of the responsibility of your agency as the lead agency in the project. in the exchanges. between TXDOT and Ms. Brown, Eastern Central witnessed a fine rendition of the "Old Potomac Two Step" -a 7described in the movie version of Ttn Clancy's Clear and Presentt.rangrer. Even at that stage, with a clupikfky exposed, both..,you and TXDOT:tried to hide it. The facts now evident show that your agent .. is in fact the lead agency. The DE1S.now Pending is YOUR DES; and you:have the authority and power to refuse: to consider it for purposes of entering a Recordof l)ecision In the Interests: of saving yourown-reputation it is incumbent on you. to simply .drawyour own DEIS,and refuse to act on it to adopt any alternative identified in it, including the "no action" alteroathte. Wfithdrawai:of thiS,MIS Of/ yotk,fsnecessery U r:the Jaw betausti there is no viable project formally proposed'to you at thistlinelot..either 1-f,9or l35 as corridors or parts of corridors. The State of Texas has -dearly stated, to *au" on the record,'thatit has abandoned the .projects tharare"studiied" in the DEIS before.you::Even though, they stand ready to play the political game by changing'posi>Sort later,tight now you have before you the official public policy -of Texas that says there: is no project fig: development of any part of the: `4corrido concept" for you to -consider. The 6overnercif texas did:riorwithdraw the projects without pressure. The legislature, in regular and specialsession, had .refused to further endorse the corridor toll road concept. The Std :and you faced litigation -by Reston Central based an violation of every provision of the National Environmental Pol'rcyAct, the Farmland Protection Act, and the Endangered Species Act in the preparation of the DEIS for both 69 and 35, FHW . Pati'ti.'bte 31 -11:O Page:17 -Other tub regional planning commissions bad been formed. The -people of Texas -who had opposed the, corridors- from the begirirningflnally had formal voice through the_sub regional Planning commissions exercising their local governrnent coordinate authority. Lawsuits were demonstrating and documenting TXDOT"s corruption .and.unlawful: tl acts, TURF, supra, .was doggedly pursuing lobbtying violaiient on the part of TXDOT, and -the Sierra Club filed a .comment demonstrating pages and pages. Of unlawful' flaws in the DEISfor r 9, tinder political and legal pre ssure,.tb•Gnverftor publicly caved in on his "dream":concept of allowing � fo reign corporations to cptuct and. own tolled corridors°that wouldi.talEe valuable, sensitive farm land and destroytowns and ssboc l districts, He did not withdraw the corridor concept- because the people opposed the corridor concept. He did so because. Eastern Central stood ready to.file Suit, raising all the lblegakties_that had been commnitled:by TXDOT,. all of wlIth your agency Was aware of and_ had permitted,_ He withdrew'the conceptbetause he knew the legislators had finally -gotten the:word from the people and had tented their backs. on the Governor. He also withdrew the concept because your agency told TXDOT the :DEIS was flawed beyond repair„ Eastern Central .at d the peopleof Texas are aware of that only because the Governor's foreign financial partner revealed your role to_ the Spanish: press which carried €t forth to the WallStreetJournal: Bt4youragent and."TXDOTwere required to provide that type of information to Eastern Central, and: the members had. specifically requested any information received from your agency by T .cDOT . The coordination pro:visions=of TexasLocal Government Code 391.were inolated by the silence: pending before. you now`is:your own:DEIS:purporting to study a projectv_twhich does not exist. The Frio aCtiore 'alternativenot-'appropriate. • Adopting, any of the a ternOives Mated in the flawed !ckEIS.WOUldiaCkneVvledgethat a viable prot'e'ct was before you.but that it was. not ready environmentally for an alternative to 4e adopted. That is not the, case.: There is no project before you.. There: is na project upon which you can even consider a DEIS. A "no action" alternatcve decision.would. allow TXD'0T to later proceed with the project without:goingthrough a public environmental review even 4 tharigedcircumsta:t ce5 Ef Yom. : i. e a Record of Detision adopting the oho _aeon". alternative, you will be corrtpiicit: lit ail evasion ofthe.National Environmental PolrcyAct, the Farmland Protection Ant, the Endangered Species Act and all relevant r lementlngregulations, You will.place yourself in the role of deferglantinlaWSuf ceplacingTXDOT, the agency that has broken the law to get the !DEIS.. before: you, FHWA Pet;Wort $122!10 Page la. b. Stzaemoot of Procedural: Facts Leading to This Petition. On February 5,1044; :your°.agency issued a Notice_ of intent that a Tier One Environmental Impact Statement. would be prepared by your agency and TXDOT for the. project known as the Trans.Texas_Corridor No.. 35 (7TC-33). The N tice..published in 6.9 Federal Register °S652, advised the publicthat "ITC -35 was a "priority element of the proposed Trans -Texas: Corridor system for the State; of Texas at cOnteptualty.outlined in :Crossraads:of tire Americas: Trans Texas Corridor F t ritPLhtrle 2002:". Your Hake of intentstated that Your agency `min cooperation with the Texas Department of Transportation tTXDOT) intends. to: prepare a.Tier One EIS for -the proposed selection of a corridor for the proposed construction of the TIC -35 multi -modal transportation facility." The Notice also stated that you and TXDQT "anticipate utilizing a combination of traditional and innovative financing .options _to fund construction" and that theoptions would include "state and federal transportation sources, public/private partnerships and tolling." The -Notice concluded that any "comments or questions concerning the proposed action and the Tier°One EIS shoi4d..be: directed to:the FHWA"..at the office of the F.HV .:A District Engineer in Austin. Your Agency was clearly thelead agency. c. Notice.of Intent for ITC -35 made it clear that Cumulative irrmpa t of35 -and°a`rC-69 had* be considered. Your Notice *the, Tic -35 made specific reference to the TTC 69 project as. "a second high ............ priority Trans -Texas: Gorrldo?" for Which: a Tier One EIS would be prepared and referred to it as "the 1-69 igh Priority Con idor." The ITC-35_Notice made it clear. that the -two corridors were intricately and intimately linked; "Although the 1.69 fliity,and TTC -35 are separate and distinct actions, with each ha yin.logical Eer;nirii and independent utility, each of the proposed facilities shares theneed to terminate along the Texas -Mexico international Border or Texas Gulf Coast resulting in.overlap of.study areas. in the overlapping areas, care will be taken to closely coordinate the development of the two facilities in order to minimize duplication of effort and inconvenience to the ._ public, resource agencies and other stakeholders, both nrofects:wilt beeconsldere in the cumulative impacts analysis far each of t:he facilities." The Notice of intent to deveiop the EIS for the 1-69 project was published in the Federal Register on January I5 2004.(69 federal Register 2382). The Notice: stated that you were preparing a Tier One EIS "for'the proposed extension of interstate Highway 69 from near Laredo and the Lower Ria Grande• Valley." The Notice explained that the 'proposed i-69 facility is being 1iWA PetUio°n -3/2271tt Pags. evaluated..as: air: element of the: National High,Priority Con-idor 18 and .20 system? and in addition as "an element of the. trans -Texas System as outlined in the Trans -Texas Corridor Plan (Trot While TKDOT; at. last one member of the Iran portafion. Commission, and many organizations and individuals denied that the Trans Texas. Corridor Plan was to serve as a part of the so-called. NAFTA superhighway, the ;Notice:of Intent as -to the I-69 corridor stated, that 1-09 is planned to be a.continuous north -.south corridor tucking Canada, the United States and Mexico.... As a priority element of a national 1-69 corridor initiative, the proposed facility would address interstate and international trans i Cation needs, goals and objectives " The 1-69 Notice of Intent also stated that the:.i-69 corridor and theITC-35 corridor would be studied together and "both nrQ will be considered 1p the =mutative irpnects analvs;s �r ei tch atp facitities:" Neither the I -6B DEIS nor the TTC-335DEISconsideredthe cumulative impact of the other. In fact, TXDOTpersonoel refused to consider the cumulative impact even when specifically requested to do so Icy Eastern Central d: ether- sub regionals planning coissions: They continued to dnnythat the o -were even €elated. Neither DEIS contains even one word of analysis .ef a cumulative impact created by 1-69 and I-35, ill. From theinception lt.w s clean that your agency was the dead agency, and that.T tDOT would simply be_ doing your Work in developing the DEIS; the project Was yours lam. By letter of Apra 2 4 Michael Behrens, then Executive°Director Of TXDOT,.:advised Dale Hall, Regional Director of V..:Fish.:and Service to Albuquerque, New Mexico that." he Texas Department of Transpo►t atioon (TXi T) in,cooperation with the Federal Highway. Administration (FHWA) acting as the lead federal agency, is preparing a Tier One Environmental impact Statement (ELS) forthe=oroposed c©nstructios :of the Trans -Texas III -35 High Priority Corridor fiTC-35 " Even though:the letter later. stated that the Tier One Record: of Decision "wlllnot.authorize construction", Director: Behrens had already referred to the "proposed construction' that would be the subject of the EIS.. Your a ncy also invited the Surface. Transportation Board to: participate, as a:cooperating agency in the preparation of the Tier One-EtS. By letter of JOY 1,6, 2004 to Salvador Deocampo, then the District Engineer for the Texas Division of the FHWA, Ms. tltctoria'Rutson of the Surface Transportation :Beard accepted the invitation and agreed to serve as cooperating agency: Ithe Surface Transportation Board is an economic regulatory agency responsible for reviewing rail-linepurchases and construction, Obviously invited to participate because of the planned rail. des to be included in the.TrC-35 corridor:) FHw P:ol[tic2,n 3422/10 page PI0 Ms. 'Button advised your agency that her Section of Envirdnettental Analysis was rponst le, for ehttsring that the -Surface Trans - ortaticn Board cottoned with:.NEPA °and related environmental statutes.° Her letter stated that the Board did riot at the time; have before it an `application to construct a. reil;.lirie within The TTC,35 corridor but would; .. ; _ dlyr participate in :preparation=ofthe CIS"for The ProPosed construction of the Trans "exaS 35 Priority COrridor.". The pupation of the Surface Transportation Board ertphasizes the need that you Withdraw `#ellawed:.DEIS f .rfyoli issue. afteCordof Decision for 'no a M . aCtrvn .. tert;ativex TXDOT carp later Ose the DEM as a oasis for to in arid4o:siting rail tines along either of tare.corr'i`dors, without Oh* any further envIr ntat:ana ysis. • Under the regulations; f f not wirthdpavvn; this flawed DEIS can form the base ,far .siting a tali line EVEN THOUGH THE :DEIS NEVER FOCUSED ON ANALYSIS OF -Wm RAIt I:gvf; Your agency is familiar with the regulations. Implementing:,NEPA and youlmow the damage that can be dose to the environment ofTexas if .0 allow this DEIS to stand: Issuing a, Record of .recision of no actin; alternative will recognize -the DEIS as a valid :docernerit of analysis and study EVEN THOUGH IT I5 NOT: The flawed and failed analysis demonstrated by the flEtS has berets extensively p4(rlted!p - t ..oyou by Eastern Central as 35 and' public': and local. government comments: and�statements as to -09,:• 4... REASONS THE REQuEsTEDItEuEvisJusnRED The projects -for which tie• i 5 vita l ."rated and:developed' no longer forcnall t exists;.the. :stile of Texashas decf at` _ ap , ublic:policy against the Corridor, thereforethete is no prcriect.forrraal.... the , before the 1i4 lA: and thus no legal basis:forconsdenn the DEIS further, 2. .Vounaist withdraw your.owi DEI:docurrientsttr'epa for- y you .by TXDO-T because: it Is the obvio Int t of 'MOT to use the Dols study. Material for future projects; .Ifyou do .r.tatwithdraw'O:ouir DEIS 'document -the flawed and legally inadequate analysis wilt provide a base for f iture;a tiions by..TX1)OT that -will result in litigation, 3: The study `dEtrt: 'tl�`E ; ....._.. Y.: ng l process and the discussion ofthe study • by TEf3oT fnr You ° is c feteIy inadequate -and is flawed beyond. repair,, even assuming that there was a viable Otstiltpendingbeliarethe you; Twaited too late to submit theDEIS fir 117C-35 under Texas law, so making any decision based on its content would v..€orate?public policy by recognizing the validity of .a: study invalid underT .xis FH11(fF,A Petition •3.t2.21t0 Pa.g:e...:Iis. S. if you Olly on the DEl . to adoptthe: no. action alternative stated in it and you issue a record of decision based this DEIS, you will be placing validity on a. totally invalid DEt5, allowing'TXDOTto base:aneW decision on the flawed document without any supplemental wort B.: ;DETAILED REASONS E:RE. JESTE `RELIEF l.S susnoto i. Under federal law there mbe noedoption of en alternative stated in this flawed DEIS.:. Rather, Withdrawal Is necessaryl terder to avoid the possibility onwartryhig to use the unlawfully inadequate'DEIS as a basis for future!. The Eitecutive :Director of . t)OT advises you, the fHWA, on October 6,Mober 2009'that "TxD0T rel os ndsthat the Federal. High** Administration lF}IWA) select ttie No Action Alternative in the TfC-35 Tier Q ie Record Of:Deciskon " .In. a :letter of that date to your Texas Administrator Janice Brown,, Director Amdel Saep reported that #,..T.);DOT.. based oninput and information gathered during theenvironmental process, has retlred'tt e:TTC concept as,a solution to addressing transportation needs in the 1-35 travel corridor. Finally,' Ivor onsiders it appropilateto bring dosure tothe NEPA process by taking NOrActiofl' on n:0;35 Tier tine action as will be disclosed in the Tier One FEiS:". . In.'a press: release announcing the TXDOT decision toy end the ITC:project, Seem said National Environmental Policy :. EP° e - � was,. d` itftoJcw for arreason: to make sure that proposed infrastructure developineritdoes not Impose en:dtie environmental Stresson our cltlzen5, our economy or our environment. Today's announcement shows t +at they prOces s works. Citizens all along the 1-35 corridor did their eivioduty by participating in public mees ines andheatir45, and 't y voicing. 'their concerns, Now ifs our duty to respond to:those concerns -by recornmending the No action alternative for TI7C35 The press release stated that:the 'Opal.' recommendation "will effectively end efforts to develop TTC 35�throu h the:Trans Texas Corridor concept," ironically; the Me ber: otme Texas Transportation Commissionwho once rreferred to critics of the Trans Texas Corridor concept as. "bigots0, " the man who r'epeatedlybelittled the efforts of citizens participating in p blic meetings and°heerings was chosen as the spokesman to help announce the demise of the.TransTexas Corridor: Commissioner Ted. Houghton was selected to saythat itur future e€forts to identify potential solutions will he led by Citizens, (to} ensure FH1NA •Pet;:tlon 3i2: :JiO• • P a. 9, 0:112 that each • community's Content are heard and result in efforts:.to improve 1-35 and gather transportation.assetsthat enhance safety and economic oppor tenity:" .I-Ioughton'was quoted by the press as preceding theannouncement by declaring 1 am Ted ROughton,-the most arrogant commissioner of the. mostarrogant .stage agency in the history of the state of Texas. SO MBE IS NO VIABLE TTCPRI E FOR 1-35.NOW BEFORETHE:FHWA, The project for which the TTC 35 DEIS was prepared is dead, and its death has been formally announced to you The National pivironmentalTolicy Actwas::not designed or intended to pursue stnciles of phantom projects that have been rendered meaningless by legislative.or_executive withdrawal of the projects. 42 U. S.C. Section 4332:requires that your agency follow a, process that insures • the integrated use of the.natural<and social sciencesand the environmental designarts in planning and decision making which mayhave an impact on. man's environment:" There isf ormallybefore you;.No..pian, or proposed decision that Will impact man's environment because. the State hastold you it has abandoned the .protect being planned for:in the pending DEIS, N PA-reouires. a study that states the ":environmental impact of the proposed 'action,' and there is no "proposed:aeon" now formally before yott The statute requires that the study statethe."environmental impact" oralternativestothe proposed action." Again; there is no proposed actionforinally before it is clear from the actuallariguage of the Act that -the environmental impact analysis is not intended tobelMused on a. "dry -run" of projectsoatectsthatere.not _la l, not authorized and not possibleftrin plementatiola..:..::._ The. council on Environmental Quality regulations also make it clear that you should not issue an advisory opinion in -.a case:iii which: you -have been told that the applicant will not proceed on the project subject to the stuudy, 40 CFR Section 1Soai states that "NEPA: procedures must insure that environmental information,is available to public officials and citizens before .dedsiOns ere made and before actions am taken" ..:Clearl*, the procedures are not intended to .bewasted on subjective, .phantom protects where _there are to be no "decisions made" and no "actions taken? The same subsection:of rule requires that ENEPA documents "must concentrate on the issues that aretr_ - y.s. nif cant to the action in question,rather than amassing needless detail.µ When there ta.no decision: to be made, and no action to be taken, the entire DEIS:becomes "needless.detaji:" There can be. no "trulysigniffcant" issue when there Is no contemplated „action ": When ti Texas legislature:left Austin after its last sessitatr, there were no decisions which could be made or actions taken by TXDOT:as to the great bulk:cf TTC-l-35. Then, the f i11fV. Petition 312 x9 4 •Pa.jd 113 Governor's awn designee advised you formally :that Texas would not be. following the Trans Texas corridor concept in construction and planning. So, there are Po issuesbefore you for decision; you should withdraw your own DE15. Beyond_ziest<ion:.there is no:"p opo action`. inthe of highway corridor construction now before you -there is no "-proposal Ito] be implementer", there is no "proposed: action" to which there cab be alternatives.. lexas'hat withdrawn Its proposal,Texas has announced an end to the Trans Texas Corridor concept which is subject of the TTC-35.DEIS; Texas has announced :an end'to the NEMproteSs. Therefore, there is nothing upon which you can act under. the National Environmental Policy Act and regulations issuOtby the Council on Cnviront ?ental Quality i40 C:f.lt 1500.1 through 1500:4 as previously cited to you by;Eastern Central when it pointed out to you why the DEIS was a flawed: failure:in a:Petition issued of June 15, 2009), A copy of that Petition of June 16, 200g is attached to this Petition as Exhibit 3 and is made aparthereof as though set forth fully herein. Eastern: Central previously requested that you reject the :DEIS, More appropriately, Eastern Central now insists that yu withdraw your own DEL It is clearly your DEIS because you were the lead agency and TXDOT merely -served as your agent In preparing the document, an agent that red you Into one Illegality after another. You cannot legally consider the DEIS on a project. which the people of Texas havewithdrawn and on a conceptwhich they have rejected. -As Eastern Central pointed out in tts earl er:Petition io.you, the elected representatives of the people of Texas had already ."pulled the plug" on the 1TC-3:5 project, making it dear that. completion:of:the project was not within.the public: policy of the state.. It isequally clear tkatyou must withdraw: the DEIS for 1-69 that now is pending before you. The Notices of intent printed hi the Federal Regirster'for both TTC 35. and TTC-69 stated that. they .were intlinately intertwined..Atti e_s;amt tittlethat:TXDOT DirepWrStenzTXDOT Direct announced to you that; TTC»35 would not :be.;pursued,.:hefiold you that the totire "TTC concept".: was. "retired." The ITC concept includes :t -6L The Notices of intent regarding the Environmental'Impact.Studies made it dear that TTC-35 and: I-69 were considered by you ..as one. intricately and intimately entwined corridor concept. TXDOT red them as.Oneconc . even: though using smokeand mirrors to avoid considering the impact of one on -the other, thus avoiding considering cumulative impacts ofthe two. You made it,clea n *wait Notices of In t:that the Cumulative impact study would be required to consider the impact- ofOlin cumuli= conjunction with the other. When TXDOT advised you. that the TtC concept. was "retires"tofteVsthe retirement-remi ved both`1-69 and TTC-35 asviable projectste.. which you Gould legally view alternatives.. F it.:W A Page 114 IL Withdrawal IsEneceSSary to avoid future attempts by TXDOT tOback into otherrprajects on the bagsof Ithls and unlawf inadequate:DEIS Even as TXOO1s ifrector announced retirement of the Corridor Concept; fie left open the door that TXDOT=.w.�au kl try to rise the flawed and lawfulfy.inadequate DEIS documents as a base. for future.pTo; acts. • to the October9, 2009 letter to. tour Texas Director Janice EIroWR, the TXQA'F DtreGtol" said that lf'you adopted the No. ActionAiternative'"TXDGT will conti a to plan, develop projects in ptan and the I -3S travel corr7.dor.,k .:IntheTTXDQT press release announcing the demise ofiheTTC coriridor concept, the Department sad that The funds, Invested /tithe study of TTC-35 resin a Sound investment, as -the analyses and citizen Ecomments collected during the review may b_e used in the l 3 cOrridorAtivisorstrommitteela planning, effort as well as Other aroject specific planning efforte- Pire.ctOt5aenz Rat you on notice that -if you do°n0twithdraw the :DEIS ifyou adopt the: No ActionAfternatiVe,WO:wlitbe justifyin gtheex%szerce of sound planning analysts, ihus:alfowipg TXDOT to :use this. flared DEIS as the.:planningbase for other projects. iFOr example, there has been discussion ofa_ ro .ted tight,. rgl#t, RaRailline :r+v, Within the study,area of the former TTCAS: corridor. Youare-aware. of this, and as a resultthis, and's a reault of this projection your Texas:Districtofce requestettithe. SurfaCeTransportation Board to participate in development of the DEIS. Unless YoU withdraw ire DEIS, there can be no doubt that TXD0T will attempt to use the flawed anal In the OBIS to support .the rail line artd.Shortcut the environmentalstudy necessary for -such;projeD The DEIS :does nOt eyen'attempt 1pf.trieasure.the environmental impact of the tight Rail or any other rail line But; 'unless yen withdraw the; DEIS, TXDQT" can and will try to welt as a base :upon which tOtduct a short and :inadequate supplementary study to justify the raft Any -such future project .should be_itudied' on Its own m:erits not piggy ... - Pbacked .on to the flawed: DEIS nowbefere :you:: But, MOT (IRS been pup front In ',telling you that it well use the DEIS-to istip-patt 'future projects, Moreo ieri you adopt the _No tlon:alternative and .Issu e.a Rettudof.Dedslonadoptingthat alternative, TXDOT could later ,switch strategy after the nextgebernatorfal election and ,propose oneof Action alternatiVesioiw:a corridor concept. The Rules relating -to Records. of Decision make It apparent that. anagecliCharige preferences of alternatives AFTER THE RECORD OF DECISION, IS 1SaU.Ea. Section ,?71,.:27 makes:_ It clear that selection of an alternative other than the preferred.. alternative can take place after Issuanceofthe Record of Decision. It provides. P14WA. PeiitlQri 312g/t•G Page 115 If the: Administration subsequently wishes to approve an alternative which was not identified as the preferred alternative_, a revised ROD shall"be subject to review by: those -Administration offices which`reviewed the final EIS." The only rule requirement for such a switch in position is that the alternative selected post ROD must have been "fully evaluated in the!f#nal MS," There WM, orovision.in these rules for°the extensive; public:reviewof such a snitch inselections thatis required during:the development pment of the environmental impact statement. The only stated requ4remertt is that the rodrsed ROD will be subject to review by the "Administrative offices which reviewed the final.EiS'" A R.ecord.of DedsiOn ' n tltiscase *fallow allow 'MOT to subsequently adopt a: build•, alternative, and E ern: to tral ni l bie forced to see a td TX00T rn a federal .court. TXI `'s. lack Of a edlbRlty makes it apparent that it would attempt to evade: p ubllic scru. ` . b, usi . g :t t 1m �l Ina +sgaeteantF flawed aEMco.support futurepitojects and'by even changing-ts position on.the corridor concept :after a RODRopacceptintthefig Action alternative,. TXDOT. has advised you that Pt heeded publiccomments in:decit#ing abandon-theTTC. i Corridor concept. TXDOT is being:disingenuous, uous, :It .did not hd puhlictomments prior•to the formation:of Eastern central, ThousandsOf Texans flocked.to.publtc meetings arid public kbeartnO tooppose the ITC corridor concept. Both prior to announcement of the Draft Ennironmentalintpact Statement end after, they protested against 1. -allowing a Spanish company to "own" Texas highways 2. building the corridor highways asstll roads; 3, :damage to he environment Of a quarter mile wide tight al'way;: . 4. destruction 9.fpornofami groud, Including the Blacklands in !-35aorridor, 5refusal to focus On Widening highways already built With tax dollars;. 6k plan ningliTC-4.5 to run tight throUgh center of small towns and school districts, resulting in heir destruction economicallyand:socially; 7; Secr'ecy,of eState's.contract with theSpam`coaripany; 8, Ur'lawfuluse of the tiering process .bytX OT;. 9. absence of an adequate economic Impact analysiis, IA. absence of an adeivate analysis of.Impact on human and:nattural environment .. bull-dotingbuji-doting through highway projects :that he people opposed. TxDQ*r'.sponsored the public meetings and hearings at, which these. objections were made; but TXDOT'heeded none of the ob.)ectcins. 7heit :representatives :did not consult local elected FHW,Q Petition. $;:ti2:11: e's Page. 116 officials in the towns and school districts that would be violated; they consulted only with officials who agreed with the projects, -Who would benefit financially at the expense of the property rights and economicstability of the. citizens both inside and outside their jurisdictions. Then.. Eastern Central was formed pursuant to Section 391 of the Texas total : Government Code. That law requires TXDOT to (OORDlNAT'E with local .governments that organize sub regional planning commissions, Eastern Central usedits statutory authority to. require TXDOT to meet with its members and begin to consider andcoordinate as tothe objections that citizens had been expressing to no avail When Eastern Central met with TXDOT the first time, it was getterally-understood :and: not denied by'TX)OT that submission ofthe Draft Environmental Impact Statement was no more"than two months away. TXDOTpersonnel admitted to Eastern Central that they had not considered the impact on the small towns and school districts in the sub -region. They admitted that they had not considered the :impact of the coiTidor' eograph1caliy splitting the towns and districts. They admitted that they had not considered the impact on.emergency service personnel, on school bus routing, or on the economy of the towns and districts.. Because of the persistence of eastern Central, because Eastern Central used: its coordination process to bring into them mix the Environmental :Protecti©n Agency, the Texas Department of :Environital�Quality, the Texas Department of Parks and Wildlife, the Natural Resources Conservation Service and expert evidence from individuals as to thedestructive nature of the TTC-35 project, TXEXYT delayed:ant further delayed submission to youof your Draft Environmental impact Statement Twenty seven months later, Texas withdrew the corridor concept and recommended to :you.that you adopt the No Action alternative. As the SSuccess,pf Eastern Centr:al'became evident, other Section 191 commissions were formed to'regoi-re.coordination of TXDOT, The PirieywoodsS.tiib Regional-Plainning Commission (hereinafter Pineywoods).the Trlihity-Neches-Texas Sub -Regional. PianningCommission (hereinafter TNT) and the South Central Texas Sub -Regional. Planning Commission insisted on toordination;and :net with the:_ agencies;requir l to prepare and oversee preparation of your LEIS. ..... Asto the 1,69 projectthat'had been outlined by'MbL T,opposition was raised. to converting the. proj t Into a section of.t lit corridor Eastern Central, Plneywoods .and TNT demanded coordir ion;on.the `l b9 portion of the corridor. Texans: United for Reform and freedom thereinafter 'ruRI , headed by TerriHall; agonized and focused public protests of the entire Tit -corn' or tail project: Hag, who has been honored as San.Aritonian. of the Year,pointed: out in a: column dated October. 7, 2009that TXDOT did not:abandon-the TTC-35 corridor project because of citizen i.w.A:letitiori 312.�:t1_Q: - Pa9e 117 input;: but because -Eastern Central was formed to "stand Up against and stop cue and for all the: governor's massive lentlfrab known as:the Trans: Texas Corridor:" She pointed out that the newly announcedTXI OT decision to focus on widening` and: improving the existing1-35 highway was exactly 'the plan that Eastern Central had proposed through coordination.. Hall asserts, and Eastern Central agrees, that the TXDOT announcement to the public and to you did not: result: from a desireby-the,governor to honor public opinion. Rather, as she put It in a column dated October S; 2 9 "The:REAL reason:Perry':5:(.the governor's) highway department; .:put' the nail in the coffn Of TIC -35 was because it was under the threat of a federal lawsuit by Western Central] which was formed: to stop TTC-35 dead in its tracks:" She asserted that TXDOT retreated fromthe. field beca t::a "messy" lawsuit would not help the governors re-election carapai, The fact thatTXDQT, did not recommend<to you the same "no action" alternative on the 1-69 .i corrioartdtatth dld_orttlie. 1-35, pr:.ovides. Rather evidence that TXDOT caved because of the litigation threat posed by Eastern Certral, not because of public opinion. The public opposition to l-69r:was just as.strong.mayhe even more so, as thatto+35. So, it was not public opinion thatguided: the Governor's decision.. It was the knowledge that the state faced litigation based on violations ofthe law with regard to -35: You Were and are aware of those violations and of The fct that Eastern Central was ready to file suit, in fact; ordiit to,A news article printed In Madrid on October 8 2009, TXDOT "recommended notto proceed with the f trC-3:5 project- In response to comments orr►ments received from the federal; l-lighway:Admin stration (RIWA) during the environmental review phase of the prolecr"and cited asks authOtity for the statement a report from TXDOT to the Spanish consortium that TXDOT had named as,its "strategic: planner'," Even though your agency and MOT kept eon umcati"ons between. your agencies a secret from the public, and more importantly, a secret from the coordinating_ I.oralgpvernmental units that were demariding knowledge of any such -cots mumcatlons,'I XQOT reported those communications to its "strategic planner/' a. foreign consortium of corporations. Bemuse of that press notice In::a.Madrid. newspaper, we are aware that you communicated to TX OTcortirnents that .made .i(t appear thatTXbOT should not reveal itto Eastern Central or any of the other 391 coordinating agencies of local gorernment. Eventhough obligated to coordinate such inforfnation with Eastern. Central by the law of Texas, IX©.OT did not do so. Even more ironically, EVEN THOUGN•PO /. RE ALSO OBLIGATED. TO COORDINATE PROJE-'T tyliTKE�I 4I CENTRAL LI: ELL A1SEAR [E,JV1EIVIBER T[3WNS YOU DID :±II0T V/S E EASTERN CENTRAL OR THE TOWNS Of YOUR COMMENT TO TXDOT. TXDOT FAILED To ADVISE EASTERN CENTRAL IN SPITE OF THE REQUEST FROM. EASTERN CENTRAL THAT IT SE ADVISED, QF ANY INPUT YOU HAD DA( THE DEIS. FRW.A. Pe.#i.Uion 442f1 Page I't$ Bdfh p rr agency and ixociT violated the law by not: advising agencies with which you were obligatedto coordinate -that you were suggesting that TXDOT not proceed:. Either your agency was corn plicit in this subterfuge, orTXDOT to its foreign business partners, either of which is totally believable graven the lack of credibility displayed. in this case. No doubt you can understand why Eastern' Central does not trust TXDOT to retain firm on its commitment to abandon.TTt-35. ?ou:cali understand Ms Hall's comments on October 6, 2009 that the citizens OfTe iaSare still threatened by the TTC-69 project EVEN THOUGH THOUSANDS OF TEXANS HAVEVOICED OPPOSITION:1O.-THISPROtECT ONTO* SAME GROUNDS AS THOSE EXTENDED AGAINSr TTC 3 . An in! d pt.:Sierra..Club;eoacrient on the TTC-69 Project very dearly dissected your,DEIS . on that project, demonstratingthat:your DEIS is inadequate under NEPA-anti every other apple federal and state. law:. You. have that. dissection in your file YoutoWn.NotieeS of Intent published :for the two prOjetts made it clear that your DEIS documents must analyze the cuittulative impact of 69 on 35: and vice versa. The documents preparedfor you- by TXD0T did not:make a cumulative impact analysis. TXDOT's: failure to matte. such • analysis:constittutes AN:INTTNTlONAL DEUSERATE REFUSAL TO WEIGH THE CUMUL.ATiVE IMPACTShecause::Easteen Central, Pineywoods; TNT, Hall, and the Sierra Club all pointed out clearly that such.enalysis was missing.from your DEIS documents. ;in Its Jute, 2OO9 petitioninsisting.that you reject your DEIS, Eastern Central emphasized the unlawful acts of Dom wkicborne to light because of'i: airs TURF lawsuit against you and TXDOT fin which TURF was joined as plaintiff by the Aquifer Guardians In Urban .Areas), The Unlawful acts, the falsehoods, the Misdirecting statements. of TXDOT which were turned up: by that lawsuit WERE ALL KNOWN TO YOU At one point you were forced to reject a contrived F0NSI filed by TXDOT.and obVIOUslyipte-approyed by you.: The lawsuit forced your. hand in directing :TXDOT to=move ahead With astudy TXDQT is using the "No Action" recommendation toMislead the public, This rogue departrrrent (so identified duringe SOnsetiMunittee Process by the Texas legislature) ill no doubt later try to rely on this unlawfully Inadequatez and flawed DEIS as a base for projects suchas a Light Rail or T-bone rail project *illbe_adverse to all citizens -of the Eastern Central jurisdiction. Your aoquiescence to the: "No Action" recommendation will als 'permit TXDOT to .cater, recommend an Action altetnativei Providing. Its. leader Governor Perry survives the election process and is returned to the statehouse. Eastern Central its..conrerned about you following the law, given your prior attempts to convince Eastern Central that :decisions as,to-supplementing the DM were within the authority P :et:iifon'ZJ`�:13 Pane i9 of TXDOT, and yourprior COMplicity in the MOT itlegaL..a Ions brought to lfight bythe:lawsuit in.whir.!) ;Hall's orgatuzatit n::was a plaintiff.. A suspicious i asternCentrai_ren;ask,. as.flail did In an October 16 column, why TXDOT merely sent a letter to. you recommending a NO Action alternative rather than ACTUALLY WITHt)RAWWNG.THE DOCUMENT .IT,PREPARED FOR YOU So T4AT YOU ViWOU.LTl- HA! E NO *MIS UPON.WHICH TO ACT. • On the_basisof, all the evidence_ in thincase as:to:the total iadc of crethbillty ofTXDOT as your agent in: PreparingYOUROWN-DELS fOr ITC -35 and 1170 ,69, the evidence as Ito:the public policy of the State that the TfCthe ITC-cOrridor:cCatceptIthat includes 1T'C-69 has been abandoned, and the failure•:of TXDOT to examine thetirmulative impact of 1TC-3S andITC-69 :on. each, EASTERN CENt -Rill • • -CALLS UPON YQtJ TQ!aiey THEI.AW AND WITE(DRAW YOUR.OWN DEISTTC-35 and. DEIS 1TO69 BECAt$ TIN.ERE IS NO MABE_E PROJECT ,BEFORE YOU AND BECAUSE OF THE LEGAL *ADEQUACY ACY .Of BOTH DEISMpock) MENTS. ivt The offsis .arrmpletely:.anal uniawfullyfcawed and inadequate to satisfy the requirements of laW, irktthe only solution is: to withdraw the document so. that It cannot. be usedasa gha t document for-futote projects. Eastern. Central Set forth a.ftall statement of the flaws: anti inadequacies of your DEIS in its request to €orce.a development of a-supplemerstal DEIS:executed on May 13, 2008 and mailed to'i%DOT's Director of Cprr Systems Edward Peosoetc'a copy to: your Janice Drown can :M :20; 2008. , .A.co -.aYpy 0fthat i{equest iS attached hereto gas Exhibit 2: a, Economic Maly* Failure Particularly, but not in the detail that is in Exhibit 2,. Eastern Central pointed out, and:docturnerited, the following flaws and inadequacies just as to the economic failings of: OEIS i. The DEIS failed to include aft economic irrrpact:analysis adequate to holly inform tfteovbik so that a judgment could be made as to .alternatives.'St ch adequacy is required gf NEPA:environm ental impact studies as. you well know. ii. Tire` .std` thhat:led tousuante of the flawed D`EiS;ignored the economic impact • Or -diminished land Vaittesthat would result :from. toss cafaccess because of the limited 'accesspo%tit s o ithe TfC-3tright:ofwey, • The "study" ignored the adersetax impact an. local citizens from arse of tax dol lam to allow thedeVeldper to build any Overpasses needed tOaCgilmModate local school buses, ernergen y services; delivery afgoods and regular residential ri WA. Petition 3f12t. q.:...... Page Pa =travel;;° th�e.developer was only obli ed`:to build OdreaSsis offer state and li;$ highways, not local roads necessary for local access) iv.. ►e"Study" nored the cost mpacX of tolls that local. crti ens would have to pay touse overpasses even though they did not use the: main artery.: Texas Code 227;O8i ..a > v, The "study" ignored the heavyburden of:discrirrmatorytolis on: those citizens wholive where they will be forted to use the superhighway, iii: The 'study' ignored a adverse ImRact of water and utility rate Increases necessary for re-fcgting of utility linesnecessitated by forced use of the corridor easement and thede impart of the con Of such re-routingon municipal Water systems; vii. The "study" ignored the odverse impact of thecost restructuring school district bus limes and school district boundaries because of the actual physic division of the districts by the superhighway route shown` in the preferred alternative (TXDOT planners; and administrators -admitted=during a tOordinatiOn, meeting forced by:i?Astgrn Central that they had not. even Considered this element of cost and: social disruption); grit. The ° turfy" i oredthe economic impact of decreased property -tax dollars as. a result of :the Sete condemning land and structures to provide for construction, and the increased taxes that would have to be assessed to make up the loss; ix, The "study" Ignored the economic impact; on the school districts from doss of. patrons resulting from the schools being requirto rettrictiveircut down operations and ch~:ange, routesroutesof transportation (again, TXDOT of afs admitted thaitathey had not considered these elements of cost)=, x. The "study' ignored the:•economic impact of the need to duplicateemergency services in order_to serve both sides of a limited: access superhighway that geographically. cut in half fire response, medical response and PO** response areas (emergent services personnel testified at a public coordinationmeeting forced on:1XOOT by Eastern: Central, and TXDOT officials admitted not having cpnsideredt : ai The 'stud? l ignored t economic impact of increased fuel costs required of those who would.. lose use of direct local:routes, and increased tax costs of repairing -ege 121 :existing: fads_ 900 damaged by heavy equipment used to constrict the 'superhighway; xit. The. "Study' ignored the economic impact of the tax cost of m'itiga'ting.noise, a .slghlf1eant f act as shown by a study prepared by the University of Texas FQR T) D&T AND` YOU (The study "Potential: Impacts of the Trans Twos. Corridor" was commissioned MOT; supervised by Dr. terra Kockeirnan, and stated: a potential co-st of $:t lviluION PER MILE for even minimal:mitigation of the,noisse which the Addy says will make land within one :mileof the right of way UNINHABITABLE FOR HUMAN USE See Pao fi• of Exhibit 2 or Bout' own copy of the Study wh'sch. surely TXtOT furnished to you,); elli., The *study' Ignores the;; economic impact ofloss of property values of at:least all the lane - lying within one mile of the right of waay'because of the noise impact referred to in the Texas study; At. The study" wedimpact of : loss of population when. residents � .fie. economic have tomove to avoid. theiaccess restrictions -.of the corridor fat a coordination meetingfortedon.T) DQT by Eastern Central,.. Mayor Arthur White of Bartlett painted out'that the citizens of histown mostly workout of the area and will have to: move to avoid the : tose down of access caused by the superhighway splitting his city awayi. from -ready access: totheWork sites. :EPA officials acknowledged that the bond debt of Bartlett which would be made unserviceable by loss of population was "a substantial impact-") b'.TheriEIS inappropriatelyshi€ts the analysis required by NEPA toe second study, tobe,completed after the route:of the,corridor has been selected to the detriment Of the ecosystem,... The DEIS claims that TXDOT, fbr you, h'es taken a hard >io 1c.at:tt e. directirripactsx but have concluded that if the Tier One decisidee tettidtt in the selection aa.COrridor alternative as the Preferred: Alternative_ . .[there would be no harm] because no construction related activities will be authorized es a resuft of the Tier .One. decision:" This position has been taken as: to. noise and vibration, cultural resources,parklands,: historical ARM prime farmland soils, OW basins, impaired stream basins, existing reservoirs, major -and Minot aquifers, fl pronea_reas,:-wetlands, mineral resources and mining activities, publicly owned or privately held terrestrial and aquatic habitat areas, neighborhood and c immunity cohesionsenvironmental . . poP�lat�lanc; emv�ror►menta#:justi, relocations air quality and potentially occurring -threate iedd-eit'iidangered oan :te,species. tlif.r;:ri:3d 11.t� Pa9e I22 So, all:the Addled imparts of the project were: put:off.fota fuE a "tier two" stdy, afterthe preferred alternative hes been decided, and When it is too late to do anything but attempt. to mitigate the damages that wiltoccur, .. Rather than conduct a. hard look study .of theSe elements, TXDOT used Tier One to Justify a: predetermined route for:the corridor. The DEIS is flawed beyond repair as pointed out by Eastern'Central in both documentsE.xhibit:Z and. the petition to reject the DEIS in its entirety filed with; your of ce on>iwe.IS, 7009.( ihit.3).. The iltratklandsPreirle was: tuit_gi the d look" analysis required by•NEPA. The:valfiat►ie. black lands farin *WM:Wittedlocated in::the:lliec rands prairie is considered a :national treasure becaue of itsuniquesoi►`composfdon which produces -bountiful crop;y,ear after year, lout irrigating, It is specifi allyIdentifed.by Texas Department of Parks and Wildrife:as. having the highest priority for preservation In its Comprehensive ldli€e _Conservation Strategy. The corridor route Identified estiie•preferred route travels the entire length Of the Prairie. The executive sum mary of the D£ig pointspointt.gut.that this'airea Was deliberately selected because,. of ease of constructiont. theotttiDd is flat and there aver endangered and 'candidate species to the west, The DEIS does net include any substantive analysis of the value of the Prairie, or of the impapt of the preferred corridor on the Prairie. Neither does It include any:substantive analysis of the impact go species in the preferred corridor, .,7hooi:ealliG "tOTsays that,sbcft:impacts will be studied in the Tier 2 study when only mitigatiion *tithe issue Vet In this first °tier": t did study enough to consider the presence of species:west of the preferred site. in. order to reject the western route and select :the preferred route;_ Curious, that it analyzed:the presence of .species tothe west and used that presence to reject the route; yet made no analysis as to impact on the species in the preferred route. ,Cuiious,°that is, .tintil time reaftzes t .eat die preferred route was pre -determined prior to the begihning.:of any NEPA study. Only by ignoring the.adverse impacts during Tier Onecould TXDOT possibly select the preferred route shown on the maps as crossing directly through, Eastern Central: The- Sierra Club destroyed the credibilityof'the 'study' performed in the i-ice DM by going through thestudy page byliege, pointingout the failure of the DEIS to consider direct, indirect or: cumulative:Impacts on anyof the: elements identified iii NEPA as being:the baser any DEIS Ft-Itl Petition 3/2 ";�:o::. Page 113 -The detailsofthe flaws and inadequacieseqof the DEIS are pointed : out in both Exhibits t and2 and are incorporated herein as fully as if they Were set forth at length. and in detain herein. C.UNOER FEDERAL AND TEXAS LAW, SUBMISSION OF THE PENDING DEIS APPROVAL IS UNTIMELY; SELECTING ANY ALTERNATIIVE STATED IN THE PENDING DEIS WILL VIOLATE THE LAW. Failure Of TXDOT„ as your agent,to complete the NEPA process for the Environmental Impact Study for the COrtidors in a Urn* fashion renders the entire process useless. Your failure as the lead agency to move TXDOT along in timelyy fashion puts you squarely in the middle of the failure. For meg of the study period after publication of the NOtice for development of the .EIS for t:35 and I-59; local government was Left-out:of'the process, in violation of federal end state_ law. The Notices for :develop nt of Environmental. impact Statements were issued in January, and February, 20, over Six years ago. Actually, a case can be made that the process should have been NEPA compliant as early:as 2002 when the Corridor concept WAS first announced. Federal funding was already coming to rxDot at that time, and everyone knew that the corridor would need federal approval byat least yncy. So, under the regulations Issued by. the. Council on EnvirotmentalQuality, NEPA should ihavebeen commenced at that time. But, giving the be €it of the doubt,.thep/anning process for NEPA purposes began at least in iahuary:and February, 2004. Our ng-the past six years, neither the ecosystem nor TXDOT has remained constant TXDOT has changed>the basic concept of the. project by announcing that thecorridtor plan was beingmithdyawn .and that planning would proceed on a conventional mode, the e►xpansion='oftile exxlsting. i-35 Interstate. The existing Interstate 3515 not even analyzed in the pending DE.IS .. That material, substantial change, should: have ended your consideration of the pending DEIS, and should have initiated a new study; period by TXDOT. But, sofar, you and TXDOT act asthough that Major ch'ange.had no impact oh the pending DEIS or on .yotm duty to begin a new study focused on the current development plant. When TXDOT officials first met With Eastern Central, they advised that the DEIS was complete as -a draft, and was being readied fotsubmission to you for review and approval. Early in the coordination process Eastern Central was told that the information being provided as to.local impacts would probably n t:be included inthe final draft -that would be submitted to you. So, departmental approval had already bn:r ade. Federal Highway Administration.iNEPA ruies.require that a reevaluation of an environmental study, be prepared if "an acteptabie" EIS.is not submitted to the Administration "within three FH4 . A •.'p'/i#tio.n °3.122.f# 0 e .,J: years from the::date of -'the dry EIScirculation." That time limit has tkpired in this case, and: TXDOT is reqtlitedto pyre a.Writteitr-eevaluation of the DEIS before your agency can even considet telettingen alternative designated €n the pending DEIS. (43 CFR, Section 771..129) There is no exemption in the rule which, would allow the FHWA:ta issue a. record of decisior:t.of "no action!' The .tuleabsolutely req 'res-a.reevaluation when a three, year period- has expired after circulation of the DElS. TXDOT's Mouestthat you issue a "no adtiOir record of decision on this lArktimeiYstthnliSsiOrt is certainly out of order. Rule 711.12904.am.provides-that a -written reevaluation: be made "if major steps to advance the aCtiQfi (e.g.•.0'11404110 Undertake final design, authorityto acquire a significant portion of the right of way, or approval of tplays. spec ca sand estimates have Pot occurred within three years after;4he last major Admire ation approval or: grant Nona of'those major steps have been made. _ Under -Texas law, there.are tw dlsfi ;c reasons. Why the pend'rngDFis should simply he withdrawn::First, Title 43, part t,: Chapter 2, Subchapter A, section 2.13 of the Texas Administrative :Cs de providesthat"there-must be a reevaluation under three. applicable provisions . L. Rule 2. (11) 1$$.requires..a reevaluatiOn when "a period of three. years has passed withoUt Major steps to advance the project, !such as:aothority_to `undertake final*sign oarqUiteSignificant portions Of rightof.way Or proval'of the plans specifications, and estimates." 'Rule 2,13 (b } requires a reevaluation when "there are changes in the 3. Rule 2.13 (b.) (2) requires a.reevaluation if' he district has not submitted an ficcevtable FELS to theinVironmental division .w thfnthr:eeyearsfrom the date of circulation of the= DElS..2 Asta_ he first; since the inceptionOf this project, none of the "mater steps" have been taken by TXDQT. In faMe Texas legislature: put a stopto the feasibility of TXDQT taking any of those steps. As toothe a rid, there have bed major .changes to..the project. DWI Governor announced the iivithdrawai of the corridor rncept. You: were told that, in a letter from the Executiie Director of TXD6T, and the people of Texas were told that in a series of well covered press conferences and announcements. Th • n' resorted td the rnore conventional idea of FHVV.A :Petition a:I22Jrt. : page 12$ expancling:.afr a4y exist ng. i ighuuays� 1'!>ia : is a inajOrchangein the focus of the ttudy:of the DEIS pending before. you. The Om is -focused on the core' .dor, and *is. on that basis that TXt)OT, for you, deferred offs ;meaningful enviroma ental and economic analyses to a. second Tien. The major shift in concept is foreign to the 1)11S before you, and reevaluation is demanded by 40th federal and the Texas law;. - As. to the third, there is rtc ":acceptable FE1r That can be- Orovid.ecitO any di,iv,.iMton of.TXIDOT or MINX The DElS is still pending,: re than three years after first clroulation: ft s:so flawed that. no "acceptable" F could be iSsued in any event Bat, the fact that it has NOT been issiied;reouires a reeval attoh under this Texas law. Slnce both federal and TexasTexaslaskrevires.4 reevaluation of the pending DEIS•for reasons of timeliness, you cannot' issue a record of:decisiort choosing one of the alternatives in the DEIS. . Ta do. 5O Would violate both. hh federal and to law, and it is: irrelevant, that the selection of alternatives mighthe: the"' no_ action" 'alternative: The very selection of an alternative from the pending.D.EIS will violate federal: andstate law, The situation regarding t estate Highway 16i corridorhas'recenntly demonstrated the serious • problemswith allowingallOwing untimelypreje to continue. TXDOT initiated the project: in May, 1969, forty; one years•ago: y`ou:approved the project Then, twenty-eight Years later, you Issued a°record of decision. forASupplementa I Final Environmental Impact Srtatemenat. Finally, .you' approved a reevatuation'that allowed tolling of the road on February 29, 20Q8. The -Congress which eriarted.NgPAwpt,►d be scandalized. Timeliness was made a major: concern both 'by the Act and by implementing: regulations. All recognized that ecosystems and • circumstances related to theliuman and natural -environments change and, sometimes, change quickly: i astern -Cenral will ao .tolerate:sue untimely delays regarding the Pending DEIS;. If it takes; turning to the federal judiciary to'force regulators like yourselves and TXDOT to obey the law, so be it Important to Eastern Central, from a. litigation standpoint, ,is that individuals at.FHWA and at TXIOT.are Made :6A-400: Of the illegalities so.that personal as well as governmental , • liabgrty cyan be. inalted. S, CON lrf '►ll l ... Eastern .Centrarhas presented *set of compelling reasons why the laws of the United States and Texas R . lire that the Fi .WA'. tdraw its. own DEIS: prepared by itsagent,. TXDOT. Texas would have the people believe that, requesting a "no action" , record of decision would put an end to the corridor, project from the federal. standpoint You at: the FHWA, and we as members of Easternn Central lwow;ttat such .is not. true f,.i4WA Pahl: tp i :3/22/1:0.. ., .age.l26 You and we know that if you select an alternativefron.the pending .i3E , iit ill open :the .°i for -for Texas to change its mind and proceed with a corridor development Without:ever performing the enviropl1tentai ari l economic studies that are required bylaw. Secton:771..127:ofthe.r:egulations of the Federal Highway Adrriimstratlon provides as folliws: j if the AdrninistratiOn subsequently wishes to approve an alternative which Was not identified` as the preferred.alternative but was fully evaluated in the final ElS.. -refsed f D shall be subject titi*Vifitikbv. I se Admi'nistrat on offices which reuteweil the final EIS....To the extent practicable The approved revised ROD shall be provided:to:all persons, organizations; arid agenctesthat received a.copy ofthe°final EIS pursuant to:Section 771 t: g UnAer.tbis foie, 1.you;select an alternative,:evenihe "no action" alternative, you will be recognizing that the OHS IS.valid enough to even su <. est such alternative. Then, if Governor Perry.lsreected,.eirunder:othercircumstances,TXDOTcan resume -plans for corridor development and you: alter the'ReCOtcl of Decision by.simply°s omitting the ROD -for bureaucratic rview. even the last tiau e.of the rule does not guarantee.public input car coordination. regarding the revised Record of Decision. You are obviously aware of the duplicity matte possible.lf you select an alternative from the flawed DEIS p riding is re you. :.the DE!S houldbe withdrawn because . • :1... The stir dy of economic analysis is woefully inadequate Rader the law 2.... The study Of natUrOtenvirOrnen4tand human environmental impacts As ws efully inadequtittundettl a law; .:3.. The "tiering process" is misused in order to bypass studies .required by .4, The 31.1 'Viabfe project befdi:e ye* - - 5.. Adoption of the'no attidn" of any her alternative fromthe pending DE i5 violates both federal. and state law, because At hest a reevaluation is *an dated:byb th.feder;aland.state au►r. Failure of yoMT agetwy to'follow the law cannot be tolerated. The people of Texas have spoken • tlhirou :the r legislature:and through .the€r representatives on Eastern Central. and other Texas .391 coroh issians..If ou at Fl -I A dlo not follow the law- and withdraw the pending MIS, thus stymieing ;any ability of TXDGTAci avoid and evade the impact of NEPA, litigation will be Paige 1.21 tiOr csai y. Prior to the tltirtg of that Iitigatit ttt .every research effort withe made to determine whether -a RICO causeoi'action can he stated # ecause of the Misleading, fraudulent, unlawful' statements and actions that have been witnessed la this case. We wig also:: ear* whether personal. as wen. as governmental mental liability Win attach to-uiOlations Of the law in this case.. We urge you -at PliWA to follow the laws, es set forth by the united. States of Americaandthe spvereign state of Texas,. and to withdraw the pending DEIS,. Respe tft Iiy stihniitted this 22nd tiny of With., 2010. • Hello