HomeMy WebLinkAbout20121480.tiff RECORD OF PROCEEDINGS
MINUTES
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
JUNE 13, 2012
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, June 13, 2012, at the hour of 9:00 a.m.
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 Sean P. Conway, Chair
Commissioner William F. Garcia, Pro-Tem
Commissioner Barbara Kirkmeyer
Commissioner David E. Long
Commissioner Douglas Rademacher
Also present:
County Attorney, Bruce T. Barker
Acting Clerk to the Board, Esther Gesick/Debbie Heffel
Director of Finance and Administration, Monica Mika
e MINUTES: Commissioner Long moved to approve the minutes of the Board of County
Commissioners meeting of June 11, 2012, as printed. Commissioner Rademacher seconded the
motion, and it carried unanimously.
e AMENDMENTS TO AGENDA: There were no amendments to the agenda.
▪ CONSENT AGENDA: Commissioner Kirkmeyer moved to approve the Consent Agenda as
printed. Commissioner Rademacher seconded the motion, and it carried unanimously.
▪ PRESENTATIONS:
1) RECOGNITION OF SERVICES, BOARD OF COUNTY COMMISSIONERS - VICKY
SPRAGUE: Chair Conway read the certificate recognizing Vicky Sprague's years of service. Former
Commissioners, Dale Hall, Glenn Vaad, Mike Geile and Connie Harbert were present to express their
appreciation to Ms. Sprague. Fellow co-workers and the current Board members also shared fun
memories and stated her knowledge and professionalism will be greatly missed.
Fl PUBLIC INPUT: Doug Meyer, County resident, stated he attended the Farm Bureau meeting two
weeks ago, and he requested the Board consider using Coordination as a means of working with the
state and federal agencies to get a study done. He also submitted articles, marked Exhibits A, B, and
C. El Commissioner Garcia stated he is willing to keep an open mind on the issue. Fl
Commissioner Kirkmeyer indicated she is also willing to hear everything about the issue. In Gene
Kammerzell, County resident and Weld County Farm Bureau Water Committee Chair, stated he is
seeking Coordination and an effort to avoid the passage of Initiatives 3 and 45 so private water rights
Minutes June 13, 2012 2012-1480
Page 1 BC0016
are not abolished. El Commissioner Conway stated the Board will be very actively engaged in
campaigning against the Initiatives. Fl Bob Winter, County resident, stated he supports the previous
comments regarding Coordination. He further stated the Colorado Farm Bureau also supports the use
of a Coordination policy. El Jim Dicker, County resident, urged the Board to adopt a Coordination
action for the entire County regarding the pumping of wells.
Fl COMMISSIONER COORDINATOR REPORTS: Commissioner Rademacher stated that he made
the most wanted list as far as the public trust proponents are concerned, along with Chief Justice
Hobbs. Fl Commissioner Conway commented being in the same company as Justice Hobbs, who is
the foremost authority in Water Law in the State of Colorado, demonstrates how flawed the logic of the
proponents is. El Commissioner Kirkmeyer stated she has received comments from several area
Realtors expressing their appreciation for the Board's action against the Initiatives, as well as the Farm
Bureau. Regarding the Emergency Declaration, she also received a call from Morgan County
Commissioner McCrackin who is interested in seeing where this goes and would like to participate.
Fl Commissioner Long stated he went to a meeting last night regarding the oil and gas industry. Fl
Commissioner Conway reported that the Board of County Commissioners sent a letter to the Governor
yesterday requesting a meeting next week concerning the Emergency Declaration.
BIDS:
Fl 1) APPROVE BID #61200091, CHIPSEAL OIL AND SHOULDER SEALCOAT -
DEPARTMENT OF PUBLIC WORKS: Monica Mika, Director, Department of Finance and
Administration, stated staff is recommending acceptance of the sole bid. She stated Cobitco, Inc. has
been used in the past and they are requesting that the contract be renewable for up to two years.
Commissioner Long moved to approve said bid. Commissioner Rademacher seconded the motion,
which carried unanimously.
IR 2) PRESENT BID #61200108, GRADER BLADES - DEPARTMENT OF PUBLIC WORKS:
Ms. Mika stated staff will bring this item back for approval on June 27, 2012.
Fl 3) PRESENT BID #B1200088, EMERGENCY DISPATCH CENTER ASSESSMENT AND
STRATEGIC PLAN - COMMUNICATIONS: Ms. Mika presented the bid and recommended the Board
have a work session prior to approval on June 27, 2012. Commissioner Kirkmeyer agreed, stating she
is not sure why it is going through the County process when it is an E911 project. (Clerk's Note: This
item was inadvertently left off of the 6/27/12 Agenda and will be considered for approval on July 18,
2012.)
NEW BUSINESS:
Fl 1) CONSIDER CONTRACT FOR VICTIM SERVICES FUNDING AND AUTHORIZE CHAIR
TO SIGN - VICTIM'S ASSISTANCE AND LAW ENFORCEMENT (VALE) BOARD: Donald Patch,
Sheriff's Office, requested approval of the continuance grant contract. Commissioner Kirkmeyer moved
to approve said contract and authorize the Chair to sign. Commissioner Rademacher seconded the
motion and it carried unanimously.
Fl 2) CONSIDER SMALL TRACT OIL AND GAS LEASE AND AUTHORIZE CHAIR TO SIGN
(PT W1/2, S22, T4N, R68W) - SUNDANCE ENERGY, INC.: Bruce Barker, County Attorney,
recommended approval of the Lease, which meets the minimum requirements. Commissioner
Rademacher moved to approve said lease and authorize the Chair to sign. Commissioner Garcia
seconded the motion and it carried unanimously.
Minutes June 13, 2012 2012-1480
Page 2 BC0016
IR 3) CONSIDER CONTRACT AMENDMENT #2 TO PURCHASE OF SERVICE
AGREEMENT AND AUTHORIZE CHAIR TO SIGN - ACS GOVERNMENT SYSTEMS, INC.: Ms. Mika
stated this amendment was drafted at the direction of the Board, which reflects an additional staff
person is necessary to carry out the Spillman component. She also submitted a copy of the cost
breakdown, marked Exhibit A, Following discussion, Commissioner Kirkmeyer moved to continue
consideration of said amendment to June 18, 2012. Commissioner Rademacher seconded the motion
and it carried unanimously.
e 4) CONSIDER LICENSING AGREEMENT AND AUTHORIZE CHAIR TO SIGN - DENVER
REGIONAL COUNCIL OF GOVERNMENTS: Ms. Mika stated this is the contract for mapping services.
Commissioner Rademacher moved to approve said agreement and authorize the Chair to sign.
Commissioner Kirkmeyer seconded the motion and it carried unanimously.
10 5) CONSIDER APPOINTMENT TO BUILDING TRADES ADVISORY COMMITTEE:
Commissioner Garcia moved to appoint Chad Sanger to the Building Advisory Trades Committee.
Commissioner Rademacher seconded the motion and it 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.
There being no further business, this meeting was adjourned at 10:32 a.m.
BOARD OF COUNTY COMMISSIONERS
/� WELD COUNTY, COLORADO
ATTEST: y'o,`.`�'
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Seanon Chair
Weld County Clerk to the Board
William F. arcia, Pro-Tem
BY: l ii
Deputy CI k to the Board EXCUSED DATE OF APPROVAL
JE A�` Bar a Kirkmeyer
C y
1861 ti;'
avid E. Long
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Minutes June 13, 2012 2012-1480
Page 3 BC0016
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STATEMENT OF INADEQUACY AND STATUTORY VIOLATIONS OF THE
DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR THE I_RANS-TEXAS
CORRIDOR-35 (TTC-35) OKLAHOMA TO MEXICO/GULF COAST ELEMENT.
This Draft Environmental Impact Statement for the Trans-Texas Corridor—35 (TTC-35)
Oklahoma to Mexico/Gulf Coast Element submitted by the Texas Department of
Transportation(TXDOT) is insufficient for many reasons, but most importantly because
the agency did not coordinate with the City of Texas, and therefore is
missing vital information regarding the impact the Trans-Texas Corridor will have on the
communities it directly and indirectly affects. Specifically the Texas Department of
Transportation:
I. Failed to coordinate with local government as mandated by Congress at 42 USC
4331.
2. Neglected to consider the cumulative effects the project will have on the natural
and human environment.
3. Neglected to consider the impact this massive project will have on the local
economies and the cultural and historical values of thousands of communities.
4. Prepared the DEIS with a predetermined outcome in mind,withholding detailed
planning documents and contracts from this assessment, and from the public.
PROJECT BACKGROUND
The Trans-Texas Corridor is one element of a grand transportation project designed to
create a massive trade corridor connecting the three nations of Mexico,the United States
and Canada. The Trans-Texas Corridor I-35 segment will span nearly 580 miles from
Mexico to Oklahoma. The right of way to be acquired will be 1,200 feet, or one quarter
of a mile wide. It will contain six passenger lanes, four truck lanes and six rail lines,and
a wide utility corridor for electricity,gas lines,water lines and other such elements. The
superhighway will contain everything a traveler will need, including gas stations,
restaurants and hotels. A passenger will never need to leave the corridor while traveling
through Texas.
Every mile of the TTC-35 segment will take 146 acres out of production, for a total of
84,680 acres and that does not include acres needed for environmental mitigation
purposes, which will realistically be three to four acres for every one acre of habitat
taken. The TTC-35 segment however is only one of four segments planed for Texas. A
parallel north-south route, I-69, is also being prepared, and two east-west connections are
also in design. The Texas Department of Transportation estimates that nearly One
Million people will lose their homes and 584,000 acres will be taken if the entire project
is completed as planned.
1. TEXAS DEPARTMENT OF TRANSPORTATION FAILED TO COORDINATE
WITH LOCAL GOVERNMENT WHEN PREPARING THE TTC-35 DEIS.
r#i,fc
Congress passed into law the National Environmental Policy to ensure significant actions
that impacted the natural and human environment are fully considered before actions that
altered this environment were taken. The TTC-35 is certainly a project that will impact
the environment. Congress did not leave the duty of considering the impact to federal and
state agencies alone,but instead called for the express and critical involvement of local
government throughout the statutory language and corresponding federal regulations to
ensure the actions were properly considered. Congress mandated this local involvement
because it understood that every action would directly impact the local community,and
that no other government body was more qualified to address these impacts than the local
governments elected by the residents.
Congress recognized the essential contribution of local governments to the NEPA process
at 42 USC 4331:
" ... it is the continuing policy of the Federal Government, in cooperation with
State and local governments, ... to use all practicable means and measures,
including financial and technical assistance, in a manner calculated to foster and
promote the general welfare, to create and maintain conditions under which man
and nature can exist in productive harmony, and fulfill the social, economic and
other requirements of present and future generations of Americans. "
Section"b"of this mandate further requires that the government do this "to improve and
coordinate federal plans, functions,programs,and resources ... ."Coordination must be
conducted with local government, in order for this Congressional mandate to be properly
implemented.
In preparing the DEIS for the TTC I-35 Corridor,the Texas Department of
Transportation(TXDOT)neglected to coordinate with ,Texas,and
instead relegated the important input of local government to the general public comment
process. They did not use"all practicable means"to work with ,Texas,and
they did not consider the positions of , Texas to"improve and
coordinate"a proper environmental review of the Trans-Texas Corridor.
The Corridor will impact thousands of communities and local economies,tens of
thousands of private landowners and millions of individuals all represented through their
local governments. This is a massive transportation project far surpassing any other
transportation plan proposed. A natural disaster affecting one million people in America
is inconceivable,yet TXDOT is methodically planning such a displacement of human
lives not to mention the effect it will have on the natural environment. However,these
same people whose lives and communities will be destroyed, have been given no more
consideration than permission to submit comments. Their one hope, which Congress
dutifully mandated, is that TXDOT coordinate with local government. But TXDOT has
refused to do so, and in so doing has violated the law.
TXDOT has also violated the federal regulations,which require the meaningful
participation of local government in the environmental review process. Under 42 CFR
2
1500.2(f),the agency"shall to the fullest extent possible: Use all practicable means,
consistent with the requirements of the Act and other essential considerations of national
policy,to restore and enhance the quality of the human environment and avoid or
minimize any possible adverse effects of their actions upon the quality of the human
environment." This policy cannot be carried out without the express involvement of local
government who are uniquely charged with protecting the people and economy that
makes up the"human environment"impacted. The NEPA regulations require that this be
done"consistent with the requirements of the Act,"which TXDOT failed to do by
refusing to coordinate with Texas.
Further at 42 CFR 1501.2 (d)(2) TXDOT is required to"consult early with appropriate
State and local agencies and Indian tribes and with interested private persons and
organizations when its own involvement is reasonably foreseeable." The quarter of a
mile corridor will impact thousands of rural communities and their economies making the
involvement of local government not only"reasonably foreseeable,"but necessary.
Millions of people will be directly impacted,yet TXDOT not only has failed to"consult
early"with the local government,but has never coordinated with the local governments
responsible for the social,historical, cultural and economic well being of the community.
President George W. Bush has also recognized the importance of meaningful local
involvement to the NEPA process and federal decisionmaking through Executive Order
13352 signed on August 26, 2004,where he specifically directed the agencies to carry
this out.
"The purpose of this order is to ensure that the Departments of the Interior,
Agriculture, Commerce, and Defense and the Environmental Protection Agency
implement laws relating to the environment and natural resources in a manner
that promotes cooperative conservation, with an emphasis on appropriate
inclusion of local participation in Federal decisionmaking, in accordance with
their respective agency missions,policies and regulations. "
"Cooperative Conservation"is defined as"actions that relate to use, enhancement,and
enjoyment of natural resources, protection of the environment, or both,and that involve
collaborative activity among Federal, State, local and tribal governments... ."
The agencies are further directed to implement the law in a manner that,"takes
appropriate account of and respects persons with ownership or other legally recognized
interests in land and other natural resources,"and"properly accommodates local
participation in Federal decisionmaking."
Again, both the Congress and President of the United States have consistently recognized
the necessary involvement of local government in the NEPA process. This directive
cannot be ignored by TXDOT without exposing the final EIS on the TTC-35 to judicial
review. TXDOT has not complied with any of these directives,and has instead avoided
inclusion of local participation in the NEPA process. Nowhere in the DEIS prepared by
TXDOT is there mention of"coordination with local government,"as required by
3
Congress,promulgated in the federal regulations, and expressly ordered by the President
of the United States.
The State of Texas has also mandated that local governments have meaningful
involvement in the planning of state activities, specifically for transportation issues. In
the Texas Local Government Code, Chapter 391, Regional Planning Commissions,the
State of Texas established: "The purpose of this chapter is to encourage and permit local
governmental units to: (1)join and cooperate to improve the health, safety, and general
welfare of their residents; and(2)plan for the future development of communities, area,
and regions so that: (A)the planning of transportation systems is improved,"among other
functions. Just as the Congress and President have directed the federal agencies to
coordinate their plans,decisionmaking process, and environmental reviews with local
government, so too has the State of Texas directed its many agencies, specifically for the
function of planning the critical transportation projects.
TXDOT has failed, in every manner,to coordinate with local government as it prepared
the Draft Environmental Impact Statement for the'FTC I-35 corridor, and therefore the
US Environmental Protection Agency should require this agency begin the environmental
review process over,this time properly coordinating with the local governments directly
and indirectly affected by this massive project.
2.NEGLECTED TO CONSIDER THE CUMULATIVE IMPACT THE PROJECT
WILL HAVE ON THE NATURAL ENVIRONMENT AND LOCAL ECONOMIES.
A. DEIS does not consider the cumulative effects of the ITC, which connects a
"Superhighway"planned to span from Mexico to Canada.
The Trans-Texas Corridor 1-35 Segment is the largest highway project ever proposed in
the history of the United States. Although this DEIS is only addressing the Texas
segment,this portion is a necessary component of an even larger project to build a
"superhighway"that connects Mexico to Canada through the heartland of America. The
purpose for this can be found on the North American Super Corridor Organization
(NASCO)website where they anticipate an increase of trade traffic from Mexico to
Canada to grow 350%by year 2030. Similar plans for a superhighway are underway in
the connecting states, including Oklahoma,where TXDOT Commissioner, Ric
Williamson has already made personal visits to the state to discuss the Texas portion of
the project. However, in the TTC-35 DEIS, this cumulative impact has not been
considered. In fact, no mention is made of the connecting segments in this DEIS.
In a similar case involving the expansion of a highway system, Western N.C.Alliance v.
N.C. Department of Transportation (312 F.Supp.2d 765), the court faced the issue of
whether the Highway Department should have included the other known connected
projects when preparing the EIS even though they were to be built in separate segments.
The court determined that they should have and ruled:
4
"The Court finds that in failing to assess, or even acknowledge the potential for,
cumulative impacts from 1-4400, 1-4700, and the other proposed developments to
the 1-26 corridor in the EA and FONSI, Defendants `entirely failed to consider an
important aspect of the problem'... Therefore the Court finds ... Defendants acted
arbitrarily and capriciously in issuing its EA and FONSI in violation of NEPA. "
The TTC-35 segment is not an independent project. Not only are their interstate plans to
connect the Texas segment to equally massive segments in other states,but there are also
three other segments planned within Texas which will also complete the project.
However none of these segments are being addressed in this DEIS. Attempting to
discuss the TTC-35 segment as a stand alone highway system is impractical. This
massive highway will not start and stop at the Texas borders. It must logically connect to
equally massive segments in the neighboring state. The DEIS submitted by TXDOT
neglects to consider these cumulative impacts.
B. DEIS does not take a"hard look"at the cumulative effects of the entire TTC
route within the state of Texas.
The purpose of preparing an Environmental Impact Statement is so that the public can
properly assess all aspects of the project and their effects on the natural and human
environment. It is appropriate for the agency to"tier their environmental impact
statements to eliminate repetitive discussions of the same issues and to focus on the
actual issues ripe for decision at each level of environmental review."(42 CFR 1502.20)
However,this cannot be used as a means to avoid addressing specific impacts.
The Texas Department of Transportation has elected to prepare the TTC I-35 Corridor
Draft EIS through a two-tier process. In their executive summary they state: "At the Tier
One level,broad issues are addressed,while taking into account the full range of potential
effects to both the human and natural environments. After the broad issues are assessed
in Tier One,the focus would shift to Tier Two environmental studies(NEPA documents)
and to issues associated with a more exact determination of effects and the avoidance and
mitigation of adverse effects. The difference in focus is one of degree." They further
explain that they will conduct individual Tier Two EIS or EA analysis on each specific
segment of the proposed highway as they prepare for construction.
The purpose of the tier process is to eliminate duplication, but 42 CFR 1502.20 requires
that first tier assessment cover in detail the critical issues that will affect the environment.
The second tier assessment can then refer to the detailed tier one review and avoid
duplication of issues at that level. "Whenever a broad environmental impact statement
has been prepared(such as a program or policy statement)and a subsequent statement or
environmental assessment is then prepared on an action included within the entire
program or policy(such as a site specific action)the subsequent statement or
environmental assessment need only summarize the issues discussed in the broader
reference and shall concentrate on the issues specific to the subsequent action." The Tier
One Assessment is expected to provide detailed analysis of all the issues to be considered
5
so that the public can properly assess the impact it will have on the environment as a
whole.
In Wilds v. South Carolina Dept. of Transportation (9 Fed 114),the court found"[I]n
determining whether a project has significant environmental impact, an agency may not
avoid significant environmental impact by improperly `segmenting' a project by dividing
the NEPA analysis of a larger action into smaller actions with insignificant impacts."
TXDOT is attempting to do just that by preparing an insufficient Tier One DEIS,where
they avoid answering critical questions because they claim they will address these in the
individual Tier Two segments. For example, in answering the question, "What affect
would the alternatives have on noise?"TXDOT answers, "Noise characteristics were not
used to identify a preferred alternative among the RCAs because in absence of a TTC-35
facility(ies) alignment,potential noise receptors(residences, businesses,etc.)cannot be
determined and predicted."
TXDOT has avoided addressing the impact by passing it off to the Tier Two review by
claiming that they do not now know the specific alignment. However, in 2005, Jamie
Marie Reckinger, a master's student at the University of Texas, under the guidance of
Professor Kara M. Kockelman, was able to study and assess the potential noise impact by
simply calculating the combined volume of all the components if they were running at
once. She concluded that the area within one mile of the corridor would be uninhabitable
for humans because the noise would be at such a high volume, it would be prohibitive for
people to live within this area.
TXDOT could have attempted to make the same calculations, but instead deliberately
failed to answer this question. As a result,this DEIS and future assessments will not be
providing the hard look required for the entire Trans-Texas Corridor 35 route, as is called
for in NEPA and upheld by the courts, unless the US Environmental Protection Agency
require them to start the process over and address these impacts.
Also, deferring these issues to the Tier Two assessment allows TXDOT to avoid
revealing the massive size and impact this project will have on the human and natural
environment. Displacing a potential one million Americans and paving over the natural
habitat they currently reside in, is clearly something TXDOT would prefer to avoid
addressing. However,NEPA requires that they do so. In fact,this is the primary purpose
for conducting an environmental review. Using the tier process TXDOT has elected to
use,the route will never be reviewed as a whole, in sufficient detail, for the direct,
indirect and cumulative impact it will have on the human and natural environment, and
the massive impact this project will have on the economy and culture of Texas, will never
be fully considered.
Not only is this a disingenuous approach to hide the real impact of the project, but it is
also not a practical approach. While some segments of the corridor may operate
independent of each other, many of the segments cannot. To build one of the truck and
passenger lane segments without expecting it to connect to another is impractical.
6
Therefore,planning to conduct environmental assessments for each segment,which
couldn't operate without the others, is illogical, and appears to be an attempt to hide the
real impact of this massive project from the people.
In Western,the court considered the same question and ruled"NEPA does not allow
Defendants to subdivide projects that do not have independent utility or logical termini
simply to expedite the NEPA process or avoid addressing environmental impacts."
For this reason alone,this DEIS should be rejected.
C. The TTC-35.DEIS fails to sufficiently address the cumulative affects the
proposed project will have on the natural environment.
TXDOT evades answering issue after issue in the Tier One DEIS by claiming that it can
not do so until a specific facilities alignment has been selected. For instance,the question
"What affect would the alternatives have on river basins?" is answered by stating"If the
Tier One decision results in the selection of a corridor alternative as the Preferred
Alternative,rivers would not be directly affected, because no construction-related
activities will be authorized as a result of the Tier One decision"(ES-30). The purpose of
the Tier One assessment is to consider just that, what the impact will be if construction
occurs.
In this same manner they have also avoided addressing the impact the corridor will have
on species. "If the Tier One decision selects a corridor alternative as the Preferred
Alternative,the federally and state-listed threatened,endangered, and candidate species
potentially occurring in the counties traversed by any RCA would not be directly
affected,because no construction-related activities will be authorized as a result of the
Tier One decision" (ES-41).
TXDOT shifts the answer to future review,and therefore avoids answering virtually
every issue raised regarding the cumulative impact the corridor will have on the natural
environment. As a result, no expert or member of the public could read this DEIS and
make an educated determination among the different alternatives.
3. PREPARED THE DEIS WITH A PREDETERMINED OUTCOME IN MIND,
WITHHOLDING DETAILED PLANNING DOCUMENTS AND CONTRACTS FROM
THIS ASSESSMENT, AND FROM THE PUBLIC.
The Federal regulations give the agencies guidance on elements they should consider
when preparing an environmental assessment. At 40 CFR 1502.2 it directs them to: "(0
Agencies shall not commit resources prejudicing selection of alternatives before making
a final decision. (g) Environmental impact statements shall serve as the means of
assessing the environmental impact of proposed agency actions, rather than justifying
decisions already made. TXDOT has violated both of these regulations when preparing
the TTC-35 DEIS.
7
In 2005,TXDOT accepted the Master Development Plan(MDP) fbr the TTC-35
segment, from contractor,Cintra-Zachary,which included the specific location,design
and alignment for the 1-35 component. Although several members of the public asked to
review this document, and the Attorney General for the State of Texas ruled that it must
be made public,TXDOT withheld the contract. A case was filed to force the MDP to be
released. A year and a half passed as the case pended in the courts, until in September of
2006, individual landowners prepared to intervene in the case and filed 100's of open
records requests for this information. At this point,TXDOT settled the case and released
the MDP to the public.
Within this document was a detailed set of engineered plans and aerial maps, prepared by
three major engineering construction firms, which define the specific route of the TTC I-
35 corridor. The route falls entirely within the preferred alternative TXDOT has
presented in this DEIS. The details in this contract are voluminous and specific and were
obviously available to TXDOT as they prepared this DEIS,but instead of making these
public and using the information to properly assess the impact the corridor will have on
the environment,they pursued a year and a half of litigation to keep this information from
the public. Their public reason for doing so was,they claimed,that the document was
not final,but clearly,TXDOT was actively involved in preparing detailed plans for the
specific placement of the corridor.
They had this specific information prior to filing this DEIS which occurred on April 4,
2006. Answering the many critical issues raised by claiming they had no"route specific"
data is disingenuous. TXDOT violated NEPA, as they must include all data and
information they have on a project when preparing the DEIS. They are also prohibited
from withholding such information from the public,and use it internally to pre-determine
the outcome of the DEIS. Even while they claim to be waiting for fmal approval of the
DEIS,they have allowed the investment of millions of dollars into the specific plans of
the project,within the route they have presumed EPA will approve.
In Shoshone-Paiute Tribe v. US(889 F. Supp. 1297 (D. Idaho 1994),the court considered
whether the Air Force had submitted a sufficient EIS to expand a training range in Idaho.
The EIS they submitted was vague in details,however, specific details had already been
prepared and the agencies and State of Idaho were acting on these plans,even though
they were not made a part of the EIS. The court found great fault in this action:
"During the same time that the AF EIS was being prepared, the Air Force
contracted with Spectrum Sciences and Software to prepare a 'Desktop Design'
of the ITR[Idaho Training Range]. The 'Desktop Design'contains detailed
range layouts with target area boundaries defined by precise longitude and
latitude coordinates. Thus, by the time the AF EIS was being prepared, the
general acreage and boundaries of the ITR had been established, and the target
locations had been plotted with precise longitude and latitude coordinates. The
Defendants would have never committed S90,000.00 for a multi seasonal analysis
if the ITR had merely been a vague, undefined 'area'."
8
As a result,one of the courts findings was, "That the failure to include a study of the
environmental impacts of the Idaho Training Range in the AF EIS was an abuse of
discretion or otherwise not in accordance with law under 5 USC 706(2)(A)." The court
also exercised its authority to, "[E]njoin the Air Force decision to pursue further study of
a proposed air-to-ground training range in Southwestern Idaho unless conducted as part
of an environmental impact statement compared in compliance with NEPA that addresses
the full scope of Air Force in Idaho proposals, including connected and cumulative
actions."
The withheld MDP by TXDOT minors the actions by the Air Force, which the United
States District Court rejected. The aerial maps alone show how far along TXDOT is in
the planning of this project, which they have withheld from this environmental review.
The MDP is proof that they have hidden substantive information that should have been
considered when preparing the DEIS, and therefore completed the DEIS with a
predetermined outcome in mind.
4.NEGLECTED TO CONSIDER THE IMPACT THIS MASSIVE PROJECT WILL
HAVE ON THE LOCAL ECONOMIES AND THE CULTURAL AND HISTORICAL
VALUES OF THOUSANDS OF COMMUNITIES.
This limited access superhighway will cut across Texas without regard to existing and
historical routes of travel, school district boundaries,water supply system boundaries,
watershed project boundaries,postal routes, school bus routes, communities,towns and
cities. It will dramatically disrupt established patterns of trade and commerce.
Because overpasses connecting existing roads would have to span a quarter of a mile, few
are being incorporated, forcing on and off ramps to be five,ten and even twenty or more
miles apart in some areas. Rancher's and Farmer's land will be split. They will be
forced to travel extra miles with their large agriculture equipment to reach their fields,
causing an additional financial strain on their operations. Emergency service routes will
be blocked,and they too will have their travel time dramatically increased in order to
reach life-threatening events.
Some towns may die. All will probably face a readjustment in trade area and patronage.
Tourists will have no need to enter the community the superhighway dissects, as all gas,
food and sleeping accommodations will be contained within corridor, with lease revenue
going to the investors who build the project. So,while the local community must bare
the full impact of direct and indirect expenses the project will force on them,they will
receive little or no financial benefit to offset these impacts. Few local communities can
withstand such a huge financial burden.
However,the current DEIS has addressed none of these concerns. When answering the
question"What affect would the alternatives have on economic characteristics?"they
have responded with: "If the Tier One decision results in the selection of a corridor
alternative as the Preferred Alternative, direct effects to the Texas economy would be
limited to land value change, which could occur within and near the Preferred
•
Alternative,based upon speculation of future placement of an actual TTC-35
facility(ies)"(ES-21).
If TXDOT had coordinated with Texas,we could have provided them with
volumes of examples of how the superhighway would directly impact our local economy,
other than just the land values. We could have provided them with specific costs of
increased emergency services to respond to accidents that occur on the corridor,which
our community will be responsible for, and the increased costs to travel additional miles
to reach current service areas along with additional costs to build new emergency
facilities in places where complete access will be blocked. We could have provided them
data as to the expenses of re-aligning our waste treatment lines, and water lines, and other
utilities, which will have to be tunneled under the massive road structure. We could have
provided these and so many other details that would have allowed them to fully consider
the impact of this project on the thousands of communities it will directly impact. If they
had coordinated their assessment as required,they could have considered the critical
impacts the project will have on the local economies.
NEPA requires that they take into account the economic impact of the proposed project at
42 USC 4331 where Congress mandated as the continuing policy of the Federal
Government to use all practicable means to"fulfill the social, economic and other
requirements of present and future generations of Americans." The Federal Government
must"preserve important historic, cultural and natural aspects of our natural heritage, and
maintain,wherever possible, an environment which supports diversity and variety of
individual choice." This DEIS addresses none of these factors, not the impact on the
social or economic environment, and not the impact on the historic and cultural heritage
of the local communities it will likely destroy or change substantially. Their data is
insufficient to comply with NEPA and indicative of their top down approach to highway
management, instead of following the law established by the United States Congress,
requiring them to"coordinate"with local governments.
There is also the human impact to consider. The project will create many problems and
adjustments that will be difficult.Boundaries may have to be changed, students may have
to change districts,the economics of school bus routes may be adversely affected. Water
supply corporation, which generally operate marginally in order to keep their rural
patrons from having to pay more than they can afford, will see increased expenses as the
project will directly and adversely affect their ability to monitor and maintain their
systems and increase the cost and time factors for repairs, meter reading and health
functions.
Within the possible alignment of the project are watershed authorities founded and
sponsored by not only taxpayers,but the federal government, and changes in
sedimentation, stream character,runoff speeds, reduced infiltration of rainfall, and direct
effects of construction on dams and dam sites create problems.
10
All of these economic impacts could have been considered, even without site specific
details,and should have been in this Tier One DEIS, if TXDOT had coordinated with
Texas.
SUMMARY
For these, and many other reasons not covered in this accounting of the submitted TTC-
35 DEIS,we request that the Environmental Protection Agency reject this assessment.
We request that you require TXDOT to begin this process over, with coordination of
local governments as the top concern. Only in so doing, could TXDOT prepare a
sufficient assessment of the impact the Trans-Texas Corridor will have on the human and
natural environment.
In addition to these reasons set forth and for further details as to those reasons, attached is
testimony presented to the Texas Senate Transportation&Homeland Security Committee
on March 1, 2007,by Mickey Burleson,a former Texas Parks and Wildlife
Commissioner representing herself who stated additional insufficiencies and illegalities
of the TTC-35 DEIS.
Attachments: Burleson Testimony
Master Development Plan TTC-35—Aerial Photo of Alignment
11
Overview of Data Quality Act and Regulatory Flexability Act Page 69
OVERVIEW OF DATA QUALITY ACT AND
REGULATORY FLEXIBILITY ACT
The Data Quality Act and Regulatory Flexibility Act are two other federal statutes that
can be used to require accountability of the federal agencies during the coordination process.
These statutes do not require coordination themselves, rather they call upon the agencies to
provide and substantiate the quality of the material they are basing their decisions upon, and to
review the economic impact on small entities.
DATA QUALITY ACT
The "Data Quality Act" is a name which we have given to a two paragraph statute
which was included in a budget appropriations bill. The two paragraphs, as part of the
appropriations bill had no specific and separate name.
The paragraphs which are set forth in the following section required the Office of
Management and Budget (OMB) to issue guidelines to all federal agencies to ensure and
maximize the quality, objectivity, utility and integrity of information used in making their
decisions. The information was specifically to include statistics.
The OMB issued its guidelines as ordered. They require every federal agency to prepare
and follow Data Quality Guidelines. When data is of concern,when you believe that a
decision has been made on faulty or incorrect data, look up the guidelines of the agency making
the decision which govern its data quality insurance.
The coordinating local government can then call on the agency to verify its data in
accord with its own guidelines. This statute provides one of the most effective tools available to
coordinating local governments.
The coordinating local government can challenge the quality of the data, and in that
way determine the specific data upon which the agency has relied, and test the accuracy and
soundness of that data.
The process is simple to execute. When the agency has made a decision and you are
suspicious of the data on which the decision is based,you simply by letter request that the
agency disclose to you the data upon which the decision is based and disclose to you the quality
check which they have run on the data pursuant to their data quality guidelines; plus you ask
for their data quality guidelines.
When they comply, it gives you a chance to see the specific data and determine the
validity of the data to base the decision. If they do not comply, then you follow their guidelines
as to how you appeal their refusal. Remember, this is different from Freedom of Information
13
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Page 70 CALL AMERICA 2009 Section B - Coordination Authority
Act (FOIA). This is not a request for production of documents subject to FOIA. This is a
request pursuant to the Data Quality Act pursuant to Office of Management and Budget and
the Agency guidelines. FOIA charges do not apply.
REGULATORY FLEXIBILITY ACT
The Regulatory Flexibility Act requires the federal agency to conduct an analysis of
any rule or regulation which it issues to determine any adverse impact on small "units" which
include small local government units of less than 50,000 in population. If there is a rule or
regulation, or its implementation that is being used to plague you as a county, city, town or
district or your constituents, simply request to see a copy of the agency's flexibility study as
required by the statute.
In the Federal Register notice when a rule or regulation is published, the agencies
usually include a notation that they have complied with this statute, however, rarely is this the
case. To do so is time consuming. Therefore, requesting to see their analysis often reveals they
have not complied with the law in regards to this statute.
ii
Data Quality Act Page 71
DATA QUALITY ACT
H.R.5658: Treasury and General Government Appropriations Act, 2001
(Introduced in House)
SEC. 515. (a) IN GENERAL-The Director of the Office of Management and Budget shall,
by not later than September 30, 2001, and with public and Federal agency involvement, issue
guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide
policy and procedural guidance to Federal agencies for ensuring and maximizing the quality,
objectivity, utility, and integrity of information (including statistical information) disseminated
by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44,
United States Code, commonly referred to as the Paperwork Reduction Act.
(b) CONTENT OF GUIDELINES-The guidelines under subsection (a) shall--
(1) apply to the sharing by Federal agencies of, and access to, information disseminated
by Federal agencies; and
(2) require that each Federal agency to which the guidelines apply--
(A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and
integrity of information (including statistical information) disseminated by the agency,
by not later than 1 year after the date of issuance of the guidelines under subsection
(a);
(B) establish administrative mechanisms allowing affected persons to seek and obtain
correction of information maintained and disseminated by the agency that does not
comply with the guidelines issued under subsection (a); and
(C) report periodically to the Director--
(i) the number and nature of complaints received by the agency regarding the
accuracy of information disseminated by the agency; and
(ii) how such complaints were handled by the agency.
SEC. 516. For the purpose of resolving litigation and implementing any settlement agreements
regarding the nonforeign area cost-of-living allowance program, the Office of Personnel
Management may accept and utilize (without regard to any restriction on unanticipated travel
expenses imposed in an Appropriations Act) funds made available to the Office pursuant to
court approval.
SEC. 517. None of the funds appropriated by this Act shall be used to propose or issue
rules, regulations, decrees, or orders for the purpose of implementation, or in preparation for
Page 72 CALL AMERICA 2009 Section B-Coordination Authority
implementation,of the Kyoto Protocol,which was adopted on December 11,1997,in Kyoto,
Japan,at the Third Conference of the Parties to the United Nations Framework Convention
on Climate Change,which has not been submitted to the Senate for advice and consent to
ratification pursuant to article II,section 2,clause 2,of the United States Constitution,and
which has not entered into force pursuant to article 25 of the Protocol.
SEC.518.Not later than July 1,2001,the Director of the Office of Management and
Budget shall submit a report to the Committee on Appropriations and the Committee on
Governmental Affairs of the Senate and the Committee on Appropriations and the Committee
on Government Reform of the House of Representatives that:(1)evaluates,for each agency,
the extent to which implementation of chapter 35 of tide 31,United States Code,as amended
by the Paperwork Reduction Act of 1995(Public Law 104-13),has reduced burden imposed
by rules issued by the agency,including the burden imposed by each major rule issued by the
agency;(2)includes a determination,based on such evaluation,of the need for additional
procedures to ensure achievement of the purposes of that chapter,as set forth in section 3501 of
title 31,United States Code,and evaluates the burden imposed by each major rule that imposes
more than 10,000,000 hours of burden,and identifies specific reductions expected to be
achieved in each of fiscal years 2001 and 2002 in the burden imposed by all rules issued by each
agency that issued such a major rule.
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