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Aquifer district wary of plan for scaled-down version of SH45 SW

Tuesday, January 31, 2012 by Elizabeth Pagano

A plan to resurrect State Highway 45 SW as a county road between MoPac Boulevard South and FM 1626 may have a profound impact on a longstanding settlement between the Texas Department of Transportation and the Barton Springs /Edwards Aquifer Conservation District.


When the road was initially proposed, the aquifer district sued in federal court over the impending construction of the road. This resulted in a 1990 consent decree between the district and TxDOT which stipulates protections and water-quality measures that must be adhered to should the road ever be built.


“It’s a short but bloody stretch of road,” explained Director Craig Smith at a meeting of the district’s directors last week. “It really is the heart of the recharge zone; there are 371 recharge features just along those two miles.”


Though the consent decree remains in place to this day, there is a proposal for a scaled-down version of the road that would be one lane each way, instead of a six-lane toll road. It would be constructed and operated by Travis and Hays Counties, neither of which are a party to the decree.


“This is an agreement that was entered and approved by a federal court, and so if the department were to convey the right-of-way of way to one of the counties, would the obligations of this consent decree automatically go with it? I think the answer there is ‘no,’” said TxDOT General Counsel Richard O’Connell. “That’s why we need to keep on talking, because we probably want to have a separate amendment of the consent decree.”


Right now, the plan is in the initial stages, explained TxDOT engineer Don Nyland.


“Hays County is kind of fishing out the water right now – is this something the department would entertain doing, and is this something we think is possible? So we’re just kind of getting into wading into the water right now, we really haven’t gotten too deep. But we did want to come out early because word travels around Austin very fast when it comes to 45,” said Nyland


Though TxDOT told Hays that it would be a possibility, they have yet to turn over requested information to the county. More to the point, it remains unclear what role Travis County will play in this as of yet, though the majority of the road is in Travis County.


General Manager Kirk Holland spoke with In Fact Daily about his plans in the meantime.


“We will be looking at in the interim; it seems unlikely that consent decree would be a transferable instrument…That’s one of the things that we wanted to go ahead and get out on the table, because we’re going to have to start doing some legal homework ourselves,” said Holland.


“We will continue to seek the protections, the water-quality control measures, that are required in that consent decree by whomever puts a roadway across the recharge zone along that alignment there. But if TxDOT is not involved in it at all, if the counties are the ones that are making the final decision whether to do it, and how its going to be designed and constructed and maintained, the best management practices for water-quality control – we will need to reestablish, I guess, those requirements with the counties,” Holland said.


Andrew Hawkins, with the SOS Alliance, said he was unimpressed by TxDOT’s assurances that they intend to honor the decree, saying, “It sounds like there is a lot of wiggle room. If I was advising you as your attorney, I would be very nervous about what is going to happen to this consent decree, and where this is all going.”


A much lower estimated cost has some worrying just where that savings might come from.


“The roadway that TxDOT was designing, and TxDOT was doing its environmental assessment on was probably on the order of $80 million. The roadway that the counties are talking about… my understanding is that it’s just a fraction of that, something like $15- $20 million. And that is of some concern, because we want to make sure that the counties provide enough funding to assure that good water-quality control measures are being designed, and effective water-quality control measures will be built as part of that roadway.” Holland told In Fact Daily.


Hawkins told the board he hoped it would not be built, saying, “There’s a reason why this project has not advanced in 30 years, and I think if this project were proposed today, people would say, ‘You’re absolutely out of your mind.’ Why would you build a road in this location? The sensitivity is just incredible. There is no responsible way to build it.” 


“The idea is never far away,” said Smith. “This issue was considered every bit as urgent when I came on this board in 1998, as it is considered urgent today.”

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