Eminent domain abuse in wetlands case in WA

Link to article here.

Zing: Wetlands Expert Sees Huge Flaw In Eminent Domain Case
December 11, 2013
Watchdog Wire.com
By Benjamin Nanke

Watchdog Wire reported back in November that Snohomish County, Washington seized a woman’s property through eminent domain and then sued her to get the money back, leaving Kay Kohler without her land and her compensation for it. Now, Ed Kilduff, a hydrogeologist and expert in wetlands within the state of Washington, has noticed a problem with the wetlands designation the county used to justify their actions. He talked about what the county is doing wrong in an interview with Watchdog Wire.

Kilduff stated that wetland designations are determined by the 1987 Corp of Engineers Manual, however any wetland designation is technically legal until it is challenged. Kilduf alleges that the wetland designation of Kay Kohler’s Snohomish County property was incorrect, citing that the land had never been designated as a wetland in any journal or map of the area and shows no traits of a wetland. However, due to the legal issues, the designation stands.

This, however, poses a significant issue for Snohomish County due to their decision on how to use the land seized by eminent domain.

“There are different types of water,” Kilduff explains, “it’s not all the same water.” Virgin water, or receiving water, is the natural water running in streams. Waste water is any water that flows into the receiving water from an outside source. Snohomish County has transformed Kay Kohler’s seized farmland into a storm water runoff reservoir. Storm water is not considered virgin water, but instead falls under the designation of waste water. Therefore, it can’t be considered receiving water. However, a wetland is considered receiving water.

As the law stands, construction on wetlands is considered illegal. However, the larger issue for Snohomish County lies in the realm of water pollution under the Clean Water Act. Kilduff asserts that Snohomish County paid for the land and then, between the payment to Kay Kohler and the completion of the construction project, reassessed the land as a wetland, challenged the initial cost in a court of law and, Kilduff says, “got a very good deal because of it.”

With the designation of wetland, Snohomish County has violated their permit by dumping waste water into a wetland. “If you take them at their word, that it’s a wetland” Kilduff said, “and then see that they have violated a wetland and filled in a wetland, according to the standard set there would be fine for excavating and working in a wetland that would look something like $10,000 a day.”

Dumping waste water, including storm water, into a wetland is, as Kilduff puts it, a “no go.”

Kilduff says Snohomish County has created a big problem by trying to get a good deal on the property. “They’ve decided that it is a wetland, but then want for it to be a wetland only when they want to get a good price, but not when they’re building stuff on it.”

While Kilduff still doesn’t believe the land is a wetland, he asserted that Snohomish County does, and they need to live within the restrictions. He encourages that citizens put pressure on them, force them to be subject to fines and penalties that citizens are subject to under the Clean Water Act.

While it probably won’t get Kay Kohler her property back, it draws light to the situation and ensures that the county can’t walk away with a good deal in a mess of fraud and abuse.
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Link to article here.

WA: Snohomish County Uses Eminent Domain, Keeps Property And Payment
By Benjamin Nanke
November 6, 2013
Watchdog Wire.com

Following the vein of waste, fraud, and abuse, Watchdog Wire has discovered the story of a woman in Snohomish County who, after an eminent domain agreement beginning in 2008, was subsequently relieved of both her property and, after a lawsuit filed against her, the money intended to compensate her for it.

Our story begins with Kay Kohler and her family’s farm. Kohler inherited the farm, which had been in her family since the 1930′s, and was a largely undeveloped plot of four and a half acres in the midst of increasing development projects within Snohomish County. Despite Kohler and her family attempting to receive the permits to develop the land, the requests were rejected by the county.

It was 2008 when Snohomish County contacted Kay Kohler and informed her of a road expansion in the works and their need to use some of her property. The county determined that the value of the land totaled at $404,000 and offered this amount of money to Kohler in exchange for the land. Kohler accepted, and signed a Possession and Use Agreement to seal the deal. This agreement is important, and we’ll touch on exactly why in a moment. However, for the time being, the agreement proceeded as many other eminent domain agreements do.

It was only when Snohomish County approached Kay Kohler a few months later, demanding the money to be returned, that the situation went awry. The county’s justification for this action was that the land had been inaccurately assessed – Snohomish County claimed that Kohler’s land was actually a wetland, and significantly dropped the land value accordingly. However, Ed Kilduff, a licensed hydrogeologist who frequently deals with wetland designations in the state of Washington, asserts that Kohler’s land has never been considered a wetland, and shows no indication of being a wetland.

“If you look at US Fish and Wildlife maps, the National Wetland Inventory, it’s not shown as a wetland on those maps,” Kilduff says, “so it’s never been a wetland, but they’ve identified it as a wetland and devalued it and gotten a good deal as a result.”

The county’s assessment comes out of the blue.

Snohomish County subsequently filed a lawsuit against Kay Kohler to secure the return of the money paid in compensation for seizure of the property. The county was successful in this suit, with Kohler’s appeal unsuccessful, leaving her required to return most of the money paid in compensation, as well as forfeit her land. The county has since bulldozed most of the property, installing a storm water runoff and retention pond and diverting a large amount of storm water onto the property.

Kohler, on the other hand, has been left both without her land and the supposedly agreed upon $404,000 to her name. With legal fees piled on top of that, and no property to serve as her retirement, Kohler doesn’t know what to do.

“At the end of the day,” she says, “it’s your future that they’re really messing up.”

The key point in this story is the Possession and Use Agreement that Kohler signed with Snohomish County. The document, which Kohler trusted in and signed without legal counsel, established that the “just compensation” for the property would be decided at a later date, and included no further specification or protection for the citizen involved in the agreement. This document allowed Snohomish County to renegotiate the terms of the agreement – and the value of the property – at a later date, permitting them to retract the initially agreed upon compensation.

The lesson to be learned from this story is that legally binding documents from local governments are not to be trusted. It is unknown whether other Washington counties have used this Possession and Use Agreement to pull the same trick on other landowners in similar eminent domain cases, but WatchdogWire advises that any citizen faced with one of these agreements, or any legal document presented by a local government for that matter, be extremely skeptical and consult qualified legal counsel regarding the matter before signing or taking any action.

The Freedom Foundation in Washington State is responsible for uncovering this clear case of government waste, fraud, and abuse, and has produced a video highlighting the details of the case in their Tales of Tyranny series. WatchdogWire will give you updates as we dig further into this case and the nature of Possession and Use Agreements.

Bike caucus chair pushes near doubling of gas tax

Link to article here.

Congressman Pushes $27 Billion Tax Hike On Drivers
Oregon congressman introduces legislation to boost transit programs by nearly doubling the federal gasoline excise tax.
December 4, 2013
TheNewspaper.com

The leading advocate of bicycling in the US Congress wants drivers to pay an extra $27 billion a year at the gas pump. US Representative Earl Blumenauer (D-Oregon) this morning will hold a press conference to unveil his legislative proposal to add 15 cents to the existing 18.4 cent tax on gasoline. The new revenue would be sent to the Highway Trust Fund to back a massive increase in spending on bicycle paths, light rail and related transit programs. In the long term, Blumenauer would like to replace the gas tax with per-mile tax on drivers, and he would spend $150 million to promote the concept.

"In order to fund all economically justified projects, the Department of Transportation estimates that Congress would need to provide $83 billion a year in addition to current funding," Blumenauer explained in a statement on his bill, which he calls the Update Act. "When the current surface transportation authorization ends at the end of Fiscal Year 2014, Trust Fund balances will nearly be exhausted. In order to maintain current funding in the following years, the Highway Trust Fund will need almost $15 billion a year (in addition to current gas tax receipts). If we do not find a way to make the Highway Trust Fund solvent, the continued disinvestment will mean an over 30 percent drop in federal transportation spending by 2024. "

To justify the increased taxes and spending, Blumenauer cites the recommendations of the Simpson-Bowles deficit reduction commission and two surface transportation panels that advocated higher motoring taxes. Representatives from various transportation unions and other prospective recipients of new funding also endorse the concept. Blumenauer cites opinion surveys that support the imposition of a GPS tracking tax on motorists.

"A number of states, including Oregon, Nevada, Minnesota, Iowa, Texas, and New York have tested pilot projects where they charged drivers for the number of miles they traveled rather than the fuel they consumed," a statement from Blumenauer's office explained. "The tests have proved convenient for drivers, demonstrated strong protections for personal privacy, and have been easily administrable."

As chairman of the Congressional Bicycle Caucus, Blumenauer last month introduced HR 3494, which would require the US Department of Transportation to measure the number of injuries and fatalities for pedestrians and cyclists in the same way that the department measures automobile accidents per vehicle mile traveled.

Spanish govt mulls bailout of private toll roads

Link to article here.

Is this what Spanish toll road operator in Texas, Cintra, expects will ultimately happen when its SH 130 and other overpriced toll roads go belly-up? Not as long as Texans draw breath...

Spain to rescue empty toll roads in deal avoiding deficit hit
By Sonya Dowsett and Jose Elías Rodríguez
November 28, 2013
Globalpost.com

MADRID (Reuters) - The Spanish government is nearing a deal with the country's main builders and banks to rescue up to nine bankrupt toll roads and take over debt worth up to 4 billion euros ($5.4 billion), four sources with knowledge of the talks said.

Motorists have preferred to use Spain's free national highways during the recession so traffic on the toll roads has fallen nearly 40 percent in the 5-year economic slump.

Erroneous toll billing by TxDOT

Link to article and to view the video of the story go here.

Incorrectly charged by TxDOT tolls
by ANDY PIERROTTI / KVUE News
November 26, 2013

AUSTIN -- A KVUE Defenders investigation has uncovered thousands of drivers incorrectly charged on toll roads operated by the Texas Department of Transportation over the past several years.

The issues involve tolls only operated by TxDOT, which include parts of Loop 1, State Highway 45, State Highway 130, and SH 45 SE.

Cintra-operated LBJ Express opens in DFW

The Cintra-operated LBJ managed toll lane project in DFW is described as 'impossibly confusing' and a 'monster' in some of the articles that follow. We've suspected all along that this 'innovation' in road building is still a taxpayer rip-off and will make most drivers shy away from using the monstrosity. Not that the opening price goes up to 55 cents a mile but later will go up as high as 95 cents a mile to use it in peak hours!
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Link to article here.

First foreign-owned toll road opens in Dallas
By Terri Hall
Examiner.com
December 16, 2013

The first foreign-operated toll lanes became fully operational in Dallas over the weekend. Interstate 635 known as the LBJ opened the first 3-mile stretch of the public private partnership toll project to the public on Saturday. The expensive price tag won’t hit commuters immediately, since it opened at a big discount for the first six months as drivers get used to the variable pricing. To use the 3.5-miles of phase one it will cost anywhere from 15 cents up to 95 cents depending on time of day. However, the regular toll rates will cost between 10 cents PER MILE up to 75 PER MILE in peak hours.

Private Toll Road Investors Shift Revenue Risk to States

Link to article here.

Private Toll Road Investors Shift Revenue Risk to States
By David Mildenberg - Nov 27, 2013
Bloomberg

Companies that build private toll roads are pressing states to assume more financial risk of traffic not meeting expectations, a change that benefits the operators while threatening to increase taxpayer costs.

Illinois and Indiana are among states offering set payments instead of the right to keep toll revenue, the standard financing method in the past. A similar approach is being used in Florida to expand highways in Fort Lauderdale and Orlando, and by the Port Authority of New York and New Jersey for a bridge to Staten Island.

Traffic forecasts fall short on Intercounty Connector in MD

Link to article here.

Intercounty Connector toll revenue falls short of early forecasts
By Katherine Shaver
Washington Post
November 30, 2013

Maryland officials have said repeatedly that traffic on the Intercounty Connector matches state projections, even as motorists say the controversial toll road continues to feel remarkably underused two years after it opened.

Tolls collected on the highway, between Montgomery and Prince George’s counties, do align with state forecasts, but only because those projections were adjusted downward, according to internal state reports obtained under a public records request.

Recent state projections of toll revenues from the Intercounty Connector were generally lower – and more accurate – than those made when Maryland lawmakers approved the road’s $2.5-billion construction.

The ICC took in $39.6 million in the past fiscal year — almost dead-on the latest projection but $10 million to $32 million less than forecasts that Maryland lawmakers had in 2005, when they agreed to significantly increase the Maryland Transportation Authority’s debt to build it.

“They lowered the bar so now they can step over it,” said Montgomery County Council member Phil Andrews (D-Gaithersburg-Rockville), a longtime ICC critic. “When you merge onto the ICC, it doesn’t feel like a highway. It feels like an airport runway.”

How many vehicles are using the ICC matters to motorists across Maryland. The $2.5 billion highway, which was hotly debated for decades because of its cost and environmental and community impacts, was the most expensive ever built in the state.

Maryland lawmakers agreed to pay for it by greatly increasing the authority’s debt, including $1 billion worth of bonds and a federal loan backed by all state toll revenue. The state committed to raise tolls statewide, if necessary, to pay them off.

The highway’s massive construction debt also prevents the state from lowering ICC toll rates — $8 for a passenger car making an end-to-end round trip during rush hours — to attract more motorists. Doing so, a recent study found, would lower the 18.8-mile highway’s revenue, requiring motorists statewide to subsidize even more of its costs.

Transportation Authority officials say the ICC is a success. They point to a recent study done by the Metropolitan Washington Council of Governments that found that ICC motorists cut their travel time in half and that traffic on nearby roads had dropped by 5 percent to 10 percent. ICC traffic is growing by an average of 2.6 percent a month, officials said.

Earlier toll revenue estimates were “ballpark” projections made before ICC toll rates were set, state officials said. The projections also didn’t always reflect the need for a three-year “ramp-up” period for motorists to absorb the new road into their travel habits, officials said.

The state’s consultant, Wilbur Smith Associates, lowered ICC revenue projections significantly for the last time in 2010 — by $7 million annually — to reflect the effects of a global recession and rising gas prices, according to the reports.

Even so, state officials said, the ICC’s true financial impact won’t be known for five to 10 years, after traffic has stabilized. The last segment, between Interstate 95 and Route 1, is scheduled to open next year.

“The fact is, you always have [roads] built for a 30-year time frame,” said Bruce Gartner, the authority’s executive secretary. “You don’t build them for day one.”

State, federal subsidies
Motorists on Maryland’s seven other toll highways, bridges and tunnels have faced two toll increases in the past two years, in part to pay off mounting construction debt from the ICC and express toll lanes being built on I-95 north of Baltimore. On some facilities, such as the Chesapeake Bay Bridge, tolls more than doubled.

In the past fiscal year, about $1.8 million in toll revenue collected from motorists statewide helped cover the shortfall between the ICC’s toll collections and its annual debt service and operating and maintenance expenses.

ICC debt service also consumed $87.5 million in federal highway funds — 15 percent of Maryland’s total federal highway allotment in the past fiscal year.

“What other dangerous roads or bridges in the state aren’t getting fixed because they’re blowing all this money on the ICC?” said Greg Smith, an anti-ICC activist. “That’s a big question.”

Gartner, of the Transportation Authority, said the agency always intended to subsidize the ICC’s construction debt with toll revenue from across the state. The authority pools toll collections and directs the money to where it’s most needed, whether to build the ICC or repaint the Chesapeake Bay Bridge.

Robert L. Flanagan, who was state transportation secretary under then-Gov. Robert L. Ehrlich Jr. (R) when the ICC financing plan was approved, said Maryland could not afford the road without using statewide toll revenue and borrowing against future federal highway allotments. For decades, he said, planners had recommended building a highway outside the Capital Beltway to connect Montgomery’s I-270 jobs corridor with I-95 and, beyond that, Baltimore-Washington International Marshall Airport.

In setting the ICC tolls, Flanagan said, “I think there probably was a decision to maximize revenues rather than maximize the [traffic] flow. . . . That remains a choice. You could reduce the tolls and maximize the flow, but somewhere, somehow you have to pay for those bonds you issued.”

Speed enforcement
AAA Mid-Atlantic spokesman Lon Anderson, a longtime ICC advocate, said the roadway is “underutilized” because motorists unaccustomed to paying tolls were scared off by the ICC’s high rates and visible police patrols. The ICC’s initial speed limit, 55 mph, was raised in March to 60 mph, but Anderson said motorists complain that it’s still too low to pay extra for.

“They had a low speed limit and police swarming it to ticket people who dared exceed that limit,” Anderson said. “People felt like they were paying a lot for the privilege of getting a ticket.”

Sen. Richard S. Madaleno Jr. (D-Montgomery), an ICC supporter who reviewed the financial plan in 2005, said lawmakers were well aware that paying off the ICC’s construction debt would require subsidies from statewide toll revenue and federal highway funds for 10 to 15 years.

“It was not supposed to be self-sustaining,” Madaleno said of the ICC. “If it had to be self-sustaining, the tolls would have to be so high, the project would be a failure.”

But Stewart Schwartz, executive director of the Coalition for Smarter Growth and a longtime ICC critic, questioned the validity of the toll revenue estimates that lawmakers saw when they agreed to build the road.

State transportation officials “may have been trying to sell the project despite its high costs and significant environmental and community impacts,” Schwartz said. “We shouldn’t be making multibillion-dollar decisions based on wrong data.”

Schwartz said the earlier forecasts missed the fact that the Internet revolution, with its online shopping and videoconferencing, would reduce the need to drive.

Some motorists might save time on the ICC, Schwartz said, “but is it enough people? Clearly there aren’t enough people traveling on it to justify the expenditure.”

Anderson, of AAA, said he believes that the use of the ICC will pick up as the economy recovers.
“I think its time will come,” he said, “but perhaps not as quickly as we thought it would.”

TCEQ takes private property without notice or hearing

Link to article here.

TCEQ Takes Private Property Without Notice or Hearing
By Caroline Runge
Manager, Menard County Water Control and Improvement District No. 1
Wednesday, October 23, 2013

For the past couple of months rumors have been floating around that the Texas Commission on Environmental Quality is planning to re-classify creeks and streams in the western Hill Country as navigable streams. Last week we learned that they have already done so in Kimble County. A rancher on Bear Creek let us know that he had been issued a citation, setting a fine for having a dam on the creek and ordering him to tear it out within days. He protested that the dam has been there for generations, and the creek is private property.

Not so, said TCEQ personnel, informing him that Bear Creek had been re-classified as a navigable stream on September 3rd. The significance of re-classification is that the stream beds of navigable rivers belong to the state; the beds of non-navigable streams are private property and belong to the owner of the land through which the stream runs.

This distinction dates from the early history of the United States when rivers were a primary means of transport of goods, and the state prevented obstructions in the rivers to protect and promote commerce. The early law cases required that a river be “navigable in fact” – that is, that it really could float a commercial boat. By the 1920’s and ‘30’s, when the Federal government and the states felt that water resources more under government control, the definition of navigable underwent a series of changes. Now a stream can be declared navigable in Texas if the stream bed is 30 feet wide from cut bank to cut bank (the technical term is “gradient boundary”).

That doesn’t mean that the water has to be 30 feet wide – only the bed of the stream. Many streambeds in this area have been widened to 30 feet by the occasional flood, though their normal condition may be only a trickle through the streambed.

A call to the General Land Office, which has jurisdiction over state lands, confirmed that the TCEQ is looking at re-classifying streams in Menard, Mason, McCulloch and Kimble Counties.
There are several serious concerns with re-classification. If carried out to the extent proposed, it converts thousands, possibly hundreds of thousands, of acres in the Edwards Plateau region from private property to state property. And once the streambeds are state property, the ranches they cross are open to free access by the public.

Any place a creek crosses a county road, for instance, anyone can walk or boat from that point up the streambed through the ranch. The main reason people buy ranches these days is to have privacy and a place that the public can’t access, so the reclassification may have a very negative impact on values of properties that have streams.

Another issue is the due process aspect of re-classifying the streambed with no notice to landowners that their land is being taken by the state – a total violation of constitutional principles of law.

And to assess a fine and demand that the property owner tear out the dam without giving the his having been given prior notice that the land is no longer deemed private further violates all notions of due process.

Finally, there is a legal question of whether the land can be declared state property before it has been surveyed and the boundaries defined by the General Land Office.

We need answers about how and why this is happening and who authorized it. The western Hill Country is affected now; if unchecked, it won’t be long before it spreads everywhere in the state where surface water resources are scarce.

FYI. This is TCEQ’s response to the initial op-ed printed in the Menard paper.

TCEQ: No Taking of Private Property
Zak Covar, executive director, TCEQ

Last week’s Menard News and Messenger contained an op-ed, TCEQ Takes Private Property Without Notice or Hearing, that contains misleading and incorrect allegations of TCEQ taking private property without due process in Kimble County. The TCEQ would like to respectfully provide additional information to help fully understand the facts of this case.

In the West Bear Creek case cited in the article, the TCEQ initiated an investigation based on an anonymous citizen compliant. The complaint alleged an unauthorized impoundment of state water. An on-site investigation was conducted where an on-stream dam and impoundment were observed and documented. TCEQ records were reviewed for the presence of an active water rights permit authorizing the impoundment of state water. No authorization for the impoundment was found.

Following protocol, TCEQ requested assistance in confirming the navigability of the stream segment from the General Land Office (GLO). The GLO reviewed historical mapping of the stream and other official state records on file for many years. Based on this information, the GLO concluded that the stream segment in question met the definition of a navigable stream. This conclusion did not “re-classify” the stream segment as indicated in the article. Rather the TCEQ was simply verifying the existing navigability status of the segment as part of its investigation protocol.

After all information was gathered and evaluated, the TCEQ issued a citation to the responsible party in the West Bear Creek case for impounding state water without a required permit. The TCEQ also offered the responsible party the option of obtaining a water permit to authorize the impoundment of state water. Rather than contesting the assessment of this penalty by requesting an administrative hearing, the responsible party chose to sign the field citation, paid the $875 penalty and then removed the dam. Based on these facts, the complaint investigation is in the process of being closed.

TCEQ takes private property rights seriously and enforces state law and rules accordingly. In this case, no re-classification of navigability status, and no taking of private property occurred.

NAVIGABLE STREAMS REVISTED
TCEQ Executive Director  Zac Covar has found fault with my characterization of agency action on Bear Creek, saying they had “found” that Bear Creek was navigable, not that they had “reclassified” it as navigable. The effect on the landowner is the same:  his creek bed has been “found” to be state property and the public has access to it.

Not only that, but the agency is planning to “find” more creeks navigable, since they have been checking maps and records at the General Land Office (GLO) for creeks in Menard, McCulloch, Mason and Kimble County - the western Hill Country, as it was characterized to me by GLO staff.
There are several procedural problems with this: (aside from the dubious authority of the TCEQ to unilaterally determine that a creek is navigable).

1) Under Texas statute a waterway is navigable as far up from the mouth of the stream as it averages 30 feet wide. It is not a simple matter to determine whether a waterway is navigable - there have been some cases in which a court has found that a waterway was navigable where it was wider some distance up the stream than it was at the mouth. Ultimately the GLO and the courts have to make the decision if the assertion of navigability is challenged.

2) It would seem that minimal fairness and due process require that the landowners along a stream be notified by certified mail that their creek, which up to now has been assumed to be nonnavigable, has been “found” to be navigable. In this case the landowner only learned that his creek had been “found” to be navigable when he was issued a citation, fined for having an “illegal” dam (which had been there for several generations) and ordered to tear the dam out within days.

3) “Finding” creeks and streams on private property to be navigable is going to have a devastating effect on real estate values in this region, and may subject some realtors to litigation. People buying land for recreational purposes are not going to want to acquire property that is subject to free access by the public. They are buying it for their own quiet peace and enjoyment, and don’t want to have any and everybody entitled to come onto it for “fishing, camping, boating and, in general, any other activity that is legal” as described in the section on navigable streams on the TP&WD website. To say nothing of the well-documented problems landowners have had with people poaching on their properties from the streambeds of navigable rivers.

The objective of the TCEQ appears to be getting rid of dams on creeks to get more water downstream. They take advantage of a complaint by a downstream landowner about an upstream dam to make this “finding”. The downstream landowner often doesn’t realize he is shooting himself in the foot, since his part of the stream will also now be accessible to the public.

If the TCEQ is not willing to adopt regulations requiring that:
1) There be a public hearing in the county where a stream is located which the agency proposes to “find” to be navigable, before any regulatory action is taken based on the navigable status of the stream
2) that they be required to file in every county the exact extent of the area that has been “found” to be navigable, so landowners are on notice that they are liable for regulatory activity and cannot  eject trespassers from their stream beds; and
3) there be procedural requirements that they notify a landowner of the newly “found” status of his stream bed at least thirty days before they  may issue any citations for violations based on the navigable status of his stream. This would give the landowner a chance to challenge the finding of the TCEQ that his creek is navigable or to take action to avoid fines and compliance requirements.

Then legislation requiring these landowner protections should be passed.

The “navigability servitude” was a judicial doctrine that came into being in the early days of the United States to give the Federal government authority under the Commerce Clause of the Constitution to restrict the building of obstructions in rivers, back in the days before railroads and highways when rivers were the principal means of transporting goods, logs, etc. from one place to another . It is ludicrous that the doctrine has been stretched over the years to gain state control over rural creeks and streams that can’t float anything larger than a canoe –and often not that.

I think those counties that are going to be seeing negative impacts on their economies from these “findings”  of navigability should think about filing local legislative bills to declare nonnavigable all streams in the county that have not previously been declared navigable by a court.

House forms special panel on public private partnerships

Link to article here.

House forms special panel on public-private partnerships
By David Tanner, Land Line associate editor
January 16, 2014

Transportation leaders in the U.S. House of Representatives have formed a special panel that will focus on public-private partnerships in transportation and other infrastructure. OOIDA urges truckers to stay in contact with lawmakers on the issues, as many public-private partnerships involve tolls or the leasing of public infrastructure to the private sector.

House Transportation and Infrastructure Committee Chairman Bill Shuster, R-Pa., and Ranking Member Nick Rahall, D-W.Va., announced the 11-member Panel on Public-Private Partnerships on Thursday, Jan. 16.

Government land heist for private developer in Texas Hill Country

Link to article here.

Terrell Graham and his wife’s family have owned their ranch in the Texas Hill Country for over 100 years. It’s remained a working farm and cattle ranch, and now Texas state government is stealing their land so private developers can discharge treated sewage from 1,500 new homes into the Lux family’s dry creek bed. Texans are supposed to have constitutional protection against eminent domain for private gain, but what about land heists that don’t involve eminent domain yet are still clearly for private gain? What about when government steals private property for its own gain, outside any perceptible public use? Apparently, there is no such protection for Texans.

Read the full article on the Examiner.

Watch the Kens5 news story on it here.

TxDOT to hijack I-35: Plans to toll new & existing lanes

Link to article here.

TxDOT to hijack I-35: Proposes tolls on new & existing lanes
By Terri Hall
November 3, 2013
Examiner.com

When a local San Antonio TV reporter goes on a rant over a toll lane proposal, you know the Texas Department of Transportation (TxDOT) has hit a nerve. TxDOT is proposing to add two elevated toll lanes on Interstate 35 each direction from Loop 410 in Bexar County to Schertz in Comal County, approximately 15 miles. The insanity doesn’t stop there.

VA toll opponents dealt blow by State Supreme Court

Link to article here.

Tolls are a tax and no longer a user fee once general taxes subsidize the project and when toll revenues from one project go to pay for another corridor/project that those same users don't use. The citizens ought to challenge this ruling since the tolls are clearly a tax under these circumstances.

Toll opponents' attorney: "They're not quitting"
By Dave Forster
The Virginian-Pilot
November 2, 2013

The state’s highest court delivered what appeared to be a knockout blow Thursday to an effort to stop the Elizabeth River tunnel tolls. That evening, about a dozen determined fighters gathered to discuss how they might go another round.

They talked for about two hours, mulling their options and chances for success. Their attorney, Patrick McSweeney, was there, still incredulous over the Supreme Court justices’ reasoning. He had heard their ruling in person, then driven to Portsmouth to counsel his clients.

Ideas ranged from a legislative fix that would require political pressure, to a federal challenge, to hope that voters on Tuesday would elect Terry McAuliffe, the Democratic gubernatorial candidate, whom the toll opponents view as an ally.

Friday morning, McSweeney said he was “working on something” but wasn’t ready to divulge specifics. He was more clear about the resolve of the group.

“They’re not,” he said, “going to quit.”

Before Thursday’s court ruling, the plaintiffs, about three dozen residents and businesses, along with their supporters, had been riding a wave of optimism.

In May, Portsmouth Circuit Judge James A. Cales Jr. had ruled that the tolls, which are scheduled to begin Feb. 1 at the Midtown and Downtown tunnels, amounted to taxes established in violation of the Virginia Constitution, and that the General Assembly had exceeded its authority by granting “unfettered power” to the state highway department to set the rates.

The Supreme Court reversed Cales’ decision, saying that the tolls are user fees, not taxes, and that the General Assembly, through the 1995 Public-Private Transportation Act, had lawfully delegated to the Virginia Department of Transportation the power to impose and set the toll rates.

McSweeney maintains that not even the General Assembly had the authority to set those toll rates, let alone delegate that power. The authority to set toll rates that will generate a profit for a private company running a government-owned facility is the exclusive domain of the State Corporation Commission, he argues.

“The court simply didn’t read our brief,” he said.

A federal challenge would likely involve a claim that the state highway department and its private partner did not sufficiently study the impact the tolls would have on Portsmouth, a city with a predominantly minority population and a disproportionately high number of low-income residents.

Nancy Lamartin, a Portsmouth resident who has been researching the option, said the tolls will create a barrier for the poor and disabled to health care, jobs and higher education in Norfolk and Virginia Beach.

“We are being segregated here,” she said.

The tolls are part of the financing for a project that will build a second Midtown Tunnel tube, renovate the Midtown and Downtown tunnels and extend a freeway in Portsmouth. The state’s private partner, Elizabeth River Crossings, will maintain and operate the network of roads until 2070.

The company is authorized to earn an average annual return of 13.5 percent on its investment, which involves a commitment of $272 million in private equity on the $2.1 billion project.

The tolls will be all-electronic, with no booths. They will begin at $1.59 for passenger vehicles during off-hours and $1.84 during peak weekday travel times: from 5:30 to 9 a.m. and from 2:30 to 7 p.m. Trucks will be tolled $4.77 during off-peak times and $7.36 during peak hours.

Users who do not sign up for an E-ZPass transponder will have to pay higher rates. They will be billed via license plate readers.

If motorists eschew ­E-ZPass but choose to register their license plates and set up an account with Elizabeth River Crossings, they will be billed the base toll rate plus $1.59 each time they cross one of the tunnels.

Those who don’t register their license plates or sign up with E-ZPass will be assessed a $3.18 fee in addition to the base toll rate on every trip. That would bring the cost of using the Downtown or Midtown tunnel to $5.02 for those drivers during peak travel times.

Elizabeth River Crossings plans to roll out a marketing campaign for E-ZPass after Tuesday’s election, said Leila Rice, a company spokeswoman.

A customer service center opened Oct. 7 in Portsmouth, at 700 Port Centre Parkway. Three workers sat behind a marble counter Friday, ready to help callers or walk-in customers.

The center, open from 7 a.m. to 7 p.m., had one customer visit as of 1 p.m. Friday. He wanted to know about adding his motorcycle to his E-ZPass account.

Foot traffic has been building, said Todd Kelley, the program manager for the center.

“I think it was Monday or Tuesday, we had eight,” he said.

Moody's predicts default on Cintra's SH 130 by end of 2014

Link to article here.

TX130/5&6 has very little traffic, revenues low, Moody's thinks may default mid-2014
Toll Road News
October 24, 2013

2013-10-22: October 24 last year the Texas State Highway 130 segments 5 and 6 (TX130/5&6) opened for traffic southeast of Austin to I-10 near Seguin. But there's not much celebration on the pike's first birthday. Traffic seems to be under 6,000 vehicles/day, perhaps one-eighth capacity for its expressway standard 2x2 lanes.

Moody's Investors Service has just downrated SH 130 Concession Company LLC's senior bank debt of $686m and $493m of US Government TIFIA loans to Caa3, the third lowest in 'junk' status.

Many toll violations billed in error

Link to article here.

Many toll violations are being billed in error, like Mr. Brooks below who has a current TollTag that's being paid right out of his bank account, and yet due to the driver of a motorcycle he sold more than a year ago, he's being taken to the cleaners and being personally, very publicly shamed for something he didn't even do. This is what the power of electronic government monitoring of our private lives reaps and it's what the power of taxation in the hands of an unelected body can do to you - not only financially ruin you, but can also can block your car registration.

Man shocked to find name on list of top toll violators
16 drivers owe more than $100,000 state said
By Kevin Schwaller
KXAN.com
October 18, 2013

AUSTIN (KXAN) - The names of the top 25 violators of toll roads operated by the Texas Department of Transportation were released Thursday by the state agency, and 16 of them owe more than $100,000.

And all 25 are from the Austin area.

The top delinquent drivers had 14,358 unpaid transactions that totaled $236,026.32. Number 2 had more than 10,000 unpaid transactions totaling more than $127,600.

Roger Brooks, of Round Rock, is on that list.
 
Brooks tells KXAN News, he hasn't been neglecting his tolls. Brooks showed us his TxTag and says it is set up to auto-withdrawal from his bank account.
 
"So I go online, I take a look. Sure enough my name is on that list," said Brooks. "Apparently it's tied to a motorcycle I sold a year ago."
 
TxDOT lists Brooks as having 4,462 unpaid transactions totaling $111,596.74.
 
"Surprising how it can stack up so quickly," said Brooks. "And I sold the motorcycle about a year ago. So, I don't know how somebody can just go on the toll all day everyday."

TxDOT confirms it would be possible for someone else to rack up those fees if a TxTag wasn't deactivated or the proper license plate changes were not made through the Texas Department of Motor Vehicles.
 
"The day started with a phone call from a neighbor who said 'hey, you can't be driving my daughter around because you're going to go to jail for not paying your toll tags,'" said Brooks. "To come up in this surprising situation is kind of hard to swallow because it's a personal situation."
 
Brooks says he called TxDOT and has set up an appointment to meet about his case.
 
KXAN News also went to an address listed online for Amee Geren, who is shown as owing $145,341.08.
 
However, Geren didn't live in the home.
 
"Not sure that this is the best way to go about trying to punish people or getting people to pay their bills," said Allisa Latham, who lived at an address listed for one of the violators. "I haven't heard them do this with anything else before."

“Effectively, these people have been stealing form the state and fellow citizens of Texas," TxDOT spokeswoman Veronica Beyer said. "It’s not fair that people have been driving around not paying their tolls to the thousands of other people who have been doing the right thing and paying their tolls.”

A new state law gives the TxDOT the authority to report the names of toll violators in an effort to collect more than $27 million in unpaid tolls owed across the state.

"The tolls collected will be used to pay debt and fund operations of state-maintained toll roads," the TXDOT website says..

In addition to publishing the list of top violators, TxDOT also has the authority to:
    •    Ban vehicles from using TxDOT toll roads with Texas Transportation Commission approval. If stopped by law enforcement, vehicles in violation of the ban can be ticketed and impounded.
    •    Report the habitual violators to county tax assessor-collectors to potentially block the renewal of the vehicle’s registration.
    •    Motorists with unpaid toll violations should immediately contact the TxTag Customer Service Center at (888) 468-9824 between 8 a.m. and 7 p.m. weekdays. A negotiated settlement amount may be offered as well as a payment plan, if needed.
    •    
TxDOT operates several toll roads in the Austin area, Laredo and one in Houston. Regional authorities operate the other toll roads.

Beyer said the agency is willing to negotiate payments and and establish payment plans for drivers who owe. The main focus is just getting the offenders to step forward, she said.

The department has been receiving calls all day since the list went up, but Beyer said she didn’t know if it was anyone owning up to the fines. The main goal is to get people calling in; they’ll negotiate with people from there.

TV Reporter goes on rant, asks if Texans will vote out politicians who raid road funds

Link to video here.

Let's make sure this reporter gets the message loud & clear. We don't want toll roads and we will hold any politicians who votes for them accountable at the ballot box! Toss 'em all out!

New toll possibility on I-35 brings up question
By Randy Beamer
WOAI-TV
October 30, 2013

SAN ANTONIO -- Would you vote for or against a candidate based on their support (or lack of support) for better roads? Would diverting tax money that's supposed to be spent on transportation make you think twice about sending them back to Austin?

The questions come up because the Texas Department of Transportation (TxDOT) this week is unveiling the possibility of elevated toll lanes above a 15-mile stretch of I-35 in northeast San Antonio. San Antonians have been pretty vocal in their rejection of prior toll projects as this metro area is the biggest in the state without any toll roads or even toll lanes.

Pauken speaks out against public money in private tollway

Link to article here.

Tom Pauken is only candidate untainted by the special interests pushing tolling in Texas...

Texas Gubernatorial Candidate Calls for End to Toll Road Subsidies
Focus Daily News
October 30, 2013

Moody’s Investors Service last week downgraded the credit rating for the SH 130 Concession company that operates the SH 130 toll road between Seguin and Mustang Ridge. The new junk status rating is a reflection of underperformance, by 55%, of forecasts for toll road usage.

In response, GOP gubernatorial candidate Tom Pauken issued the following statement:

“The failure of SH 130 to meet forecasts and its possible bankruptcy should send a message about the dangers of subsidizing these types of road project deals.

“The policy goal should be seeking road project deals which pay for themselves. We should make sure that we do not put Texas taxpayers at jeopardy for any losses which such efforts might incur.”

“Texas needs to live within its means and work to decrease the amount of debt it owes on transportation-related projects. Subsidizing toll roads that may need a bail-out works against that goal.”

Houghton lies about public money for SH 130 private tollway

Link to article here.

Transportation Commission Chairman Ted Houghton flat out lied at the Transportation Symposium held by the Texas Tribune. Indeed, public money is involved in SH 130's public private partnership. The U.S. taxpayer is on the hook for a $430 million federal TIFIA loan. It's also offensive that Houghton uses Grand Pkwy as a model for tolling when taxpayers will also be on the hook for $2.9 billion of the project. If taxpayers have to, in essence, co-sign the loan and guarantee the debt of a toll project, it, too, has questionable financial viability as a toll road. Private investors aren't willing to risk their own money on that project so TxDOT came in and put that risk on taxpayers, further en-denting the state and tying up funds needed for freeways.

Debt Issues Tied to SH 130 Could Impact Toll Projects
By Aman Batheja
Texas Tribune
October 23, 2013

A year ago this week, a toll road opened in Central Texas that represented two milestones for the state. While its posted 85 mph speed limit — the highest in the country — drew international headlines, many state and local leaders were more interested in the road’s unique financing: A private consortium designed and built the road and agreed to operate and maintain it for 50 years in exchange for a cut of the toll revenue.

Toll glitch traps motorists at DFW airport

See the story and watch the video here.

Technology has its own powers....once we're dependent on it, it becomes our master. So is the case with toll plazas and electronic tolling, too.

Toll plaza glitch stymies motorists at DFW Airport
by MONIKA DIAZ
WFAA.com
October 21, 2013

DFW AIRPORT — Motorists who had trouble leaving Dallas/Fort Worth International Airport on Monday were forced to wait in line while workers lifted exit gates by hand at its toll plaza on the north side.

According to DFW Airport spokeswoman Cynthia Vega, the system was failing to identify every Toll Tag. In some instances, the system read the tag as a vehicle entered the airport, but problems popped up upon departure.

Review of TxDOT's bloated salaries finally coming

Link to article here.

TxDOT's excessive salaries will be studied...and we've been advocating zero-based budgeting for the agency since its sunset review started in 2007-2008.

Lawmakers add a little stick to their TxDOT largesse
By Robert T. Garrett
Dallas Morning News
July 29, 2013

Lawmakers may be about to serve up a cool billion more in funding for roads, but they also could add a little stick: A study of whether “employee salaries and benefits” are bloated at the Texas Department of Transportation.

When Gov. Rick Perry named former Texas Secretary of State Phil Wilson to run TxDOT nearly two years ago, Wilson’s salary struck some people as excessive — $292,500 a year, or $100,000 more than former executive director Amadeo Saenz, a former road engineer who retired. At the time, the Perry-appointed commission that oversees TxDOT wanted key legislators who oversee the state budget to approve additional salary of $88,500 for Wilson, once a salary study could be completed.

Prop 6 opponents stir up controversy over special interest backing

Watch the video here.

Proposition 6 controversy grows as early polling nears
by Karen Grace / KENS 5
October 14, 2013

The growing controversy over the use of Proposition 6 to bring in water has people speaking out.
Governor Rick Perry says it will bring in more water.  Opponents are calling in voters to reject Proposition 6 at the polls, calling the water policy corrupt.

"Scheming a $2 billion heist of rainy day fund, it's a heist. So outrageous it requires an amendment to the Constitution to pull off," Said Sam Brannon of Hays Constitutional Republicans.

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Eminent Domain

Climate Policy

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