December 5, 2024

AGENCY NAME:
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).

DOCKET NUMBER:
FHWA-2019-0013

DOCUMENT ID:
FHWA-2019-0013-0009

REGARDING:
This comment is regarding the Renewal Package from the State of Texas to the Surface Transportation Project Delivery Program and Proposed Second Renewed Memorandum of Understanding Assigning Environmental Responsibilities to the State, [Docket No. FHWA-2019-0013]. The relevant agencies are Federal Highway Administration (FHWA) and U.S. Department of Transportation (DOT).

Reconnect Austin appreciates this opportunity to comment on the Renewal Package from the State of Texas to the Surface Transportation Project Delivery Program and Proposed Second Renewed Memorandum of Understanding Assigning Environmental Responsibilities to the State, [Docket No. FHWA-2019-0013].

Reconnect Austin has worked for the past twelve years to improve the I-35 corridor through Austin, Texas. We have met with neighborhood associations, community groups, the City of Austin, Travis County, and the Texas Department of Transportation regularly in that time with the goal of narrowing the footprint of this highway and improving its design substantially to benefit the people of Austin. We are a member of the statewide Texas Streets Coalition and work regularly with other advocacy organizations across the state calling for improved highway design or removal of highways altogether. We are also a member of the national Freeway Fighters Network and work alongside over 60 organizations across the country. We have engaged consistently and in good faith with TxDOT throughout the NEPA process, from Scoping through the Final Environmental Impact Statement and Record of Decision, on I-35 Capital Express (CapEx) Central, their project to expand the portion of I-35 that runs through the center of Austin.

Reconnect Austin has conducted extensive research on air quality, air pollution from highways, and its impact on public health. During the Draft Environmental Impact Statement (DEIS) comment period for I-35 CapEx Central, Reconnect Austin submitted 137 journal publications, articles, and other resources on air pollution from highways and the resulting public health impacts to TxDOT. We further outlined our many concerns with the minimal air quality analysis TxDOT had conducted for this project: “DEIS Appendix P (Air Quality) contains only a study of carbon monoxide (CO) and does not include any study of particulate matter, despite a wealth of academic research on the dangers of particulate matter to human health both directly adjacent to highways and on a regional scale, and a commitment by the Environmental Protection Agency (EPA) to lower attainment standards for PM2.5, which could put Austin in nonattainment status once implemented. We request that TxDOT study air quality along this corridor for PM2.5, PM10, and NOx as well as CO. PM2.5, PM10, and NOx are all criteria pollutants and pose great danger to human health, especially for people living and working close to the highway” (Reconnect Austin DEIS comments, March 7, 2023).

Reconnect Austin worked extensively with Austin City Council and Travis County Commissioners Court to call for expanded air quality analyses specifically relating to PM2.5 because Austin was on the verge of nonattainment once the new National Ambient Air Quality Standards (NAAQS) were issued lowering the standard from 12.0 to 9.0 micrograms per cubic meter. Austin City Council resolution number 20231019-045 stated: “City Council finds the projected increase in GHG emissions from the TxDOT I-35 Capital Express Central project, as proposed in the Final Environmental Impact Statement and Record of Decision, to be unacceptable and out of step when the Central Texas region is pulling together to reduce those emissions and protect our future” and “City Council asks TxDOT and the CAMPO Transportation Policy Board (“TPB”) to delay funding for the construction of I-35 Central until after the completion of the CAMPO Regional Mobile Emission Reduction Plan, funded by the FHWA Carbon Reduction Program, and the Austin MSA Climate Plan, funded by the EPA Climate Pollution Reduction Grant, so that TxDOT can incorporate the findings and recommendations of these critical regional planning initiatives, as well as the potential subsequent federal implementation funding opportunities, into the design of the I-35 Central project” (Resolution No. 20231019-045, October 19, 2023). Travis County Commissioners Court, in a letter to TxDOT, stated: “The I-35 Capital Express Central Project should conduct a study of existing and future particulate matter 2.5 (PM2.5) in the I-35 corridor, with monitors placed directly adjacent to the highway and throughout the region. PM2.5 is a significant public health threat. Children and the elderly are especially vulnerable. This study should specifically analyze existing and future PM2.5 at schools and elder care facilities within 2 miles of I-35. This study should be included in the final EIS and inform this project moving forward” and “The I-35 Capital Express Central Project should conduct a study of existing and future air pollution in addition to carbon monoxide (CO). This study should also include nitrogen oxides (NOx), which causes Ozone, as well as other pollutants that affect the population. Air pollution represents a significant public health threat. This study should specifically analyze existing and future air pollutant levels both adjacent to the highway and across the region and should be included in the final EIS and inform this project moving forward” (Letter to TxDOT, February 28, 2023).

TxDOT ignored Reconnect Austin’s air quality research and requests for improved air pollution analyses, the resolution by Austin City Council, and the Travis County Commissioners Court letter. When the FEIS was released for this project, TxDOT had conducted no additional air quality studies beyond carbon monoxide and had conducted no study of particulate matter.

TxDOT further ignored a set of joint recommendations from the Austin Bicycle Advisory Council (BAC) and Pedestrian Advisory Council (PAC) requesting that the I-35 CapEx Central project align with existing City of Austin plans and NACTO and AASHTO guidance. The joint recommendations concluded with the following statement: “The BAC and PAC do not support any alternative currently proposed by TxDOT. The BAC and PAC remain open to collaborating with TxDOT to find designs and solutions that address the Councils’ concerns enumerated above” (Recommendation 20230221-006, February 21, 2023). No effort was made by TxDOT to collaborate on remedying the many outlined issues from the BAC, PAC, and Austin City Council or to align the project with the requested City plans and guidance.

TxDOT jointly released the Record of Decision (ROD) and Final Environmental Impact Statement (FEIS) with no comment period or opportunity for the City of Austin and Travis County to weigh in. This came after numerous organizations, including Reconnect Austin, requested that the issuance of the ROD and FEIS for this project be unbundled and include a comment period so that the community and local government could have an opportunity to speak on the FEIS and any changes to it from the Draft Environmental Impact Statement (DEIS). Per our March 7, 2023 letter commenting on the DEIS: “Reconnect Austin also requests that any Final Environmental Impact Statement (FEIS) have a 90-day review period, with an official public comment period, and that the FEIS be unbundled from the Record of Decision.” This request was ignored and the ROD and FEIS were issued together with no comment period.

We are commenting on this proposed second renewal of the MOU assigning NEPA authority to TxDOT because we believe this MOU has given TxDOT the ability to act functionally without oversight and at the expense of Texans’ health and wellbeing. Over the last 10 years, since the first MOU was signed in 2014, we have witnessed TxDOT pushing through projects that benefit them as an agency while ignoring community and local government pushback. On I-35 CapEx Central, TxDOT ignored thousands of comments from community members calling for a study of project alternatives and official City and County recommendations calling for expanded environmental studies.The MOU allows TxDOT to act in this way.

TxDOT’s actions over the course of the NEPA process for I-35 CapEx Central are indicative of larger problems with the agency, and its ability through this MOU to act without oversight. TxDOT has an incentive to select projects which benefit the agency – highway expansions or greenfield highway development that are status quo – and has no incentive to work towards the kind of creative projects that are becoming increasingly necessary to build sustainable and equitable cities – including transit, multimodal networks, active infrastructure, climate resilient infrastructure, and so forth. While undergoing the NEPA process for its chosen projects, TxDOT overwhelmingly issues Categorical Exclusions (CEs) and Environmental Assessments (EAs) that result in Findings of No Significant Impact (FONSIs). “Between 2015 and 2022, 130 TxDOT projects were found to have no significant impact after an initial review, while only six received full environmental analyses detailing their impacts. Cumulatively, those 130 projects will consume nearly 12,000 acres of land, add more than 3,000 new lane miles to the state highway system, and displace 477 homes and 376 businesses. The total projected costs of those projects was nearly $24 billion” (Megan Kimble for Grist, 2022). TxDOT frequently segments larger projects to obfuscate the full impacts. Smaller projects arbitrarily divided can more easily be passed through the EA / FONSI process, and TxDOT uses their smaller size to justify not studying a full Environmental Impact Statement and all associated impacts. However, these projects are functionally one much larger project with larger cumulative impacts that are not being studied, and communities adjacent to the projects are unaware of the health and wellness consequences of these projects.

This MOU allows TxDOT to propose and select projects that benefit the agency, rush projects through the NEPA process while obfuscating the full impacts, and gives communities and local government agencies no recourse when experiencing issues with TxDOT’s actions. TxDOT is effectively the highest authority on the NEPA process except in the instance of litigation. This has led to a number of lawsuits against TxDOT by local organizations, who have tried for years to work with TxDOT to improve their projects through the NEPA process but have been ignored every step of the way. Their only recourse to reach a higher power than TxDOT is to file a lawsuit and attempt to involve FHWA.

With these numerous issues in mind affecting communities and local governments statewide, and with TxDOT not acting in the best interests of the people of Texas, we request that this MOU be revoked or significantly reformed. We’ve included a redlined copy of this draft second renewed MOU from the Texas Streets Coalition, showing how specifically it can be improved to remedy these issues. We’ve also included a report from the Texas Streets Coalition, contributed to by Reconnect Austin, outlining specific instances of TxDOT violating NEPA in projects across the state and the subsequent effects on Texas communities. We hope that this documentation of issues statewide, alongside concrete recommendations for an improved MOU, will aid in FHWA taking action to revise this second renewed draft of the MOU. TxDOT cannot be allowed to act in ways detrimental to the health and wellbeing of Texans, and FHWA has a responsibility to act as a safeguard for the people of Texas. Please revise this second renewed draft MOU in line with the recommendations by the Texas Streets Coalition and supported by freeway fighting advocacy organizations across Texas, including Reconnect Austin.

Thank you,

Heyden Black Walker

Co-Founder and Chair of the Board of Directors
Reconnect Austin