SA officials to use tax money to build toll roads

Sen. Donna Campbell amended the fee hike bill in committee to direct these tax revenues to the toll authority - with no restrictions on it going to toll roads. Now John Clamp, the unelected RMA Board Chairman and puppet of Rick Perry, is using those taxes to subsidize his loser toll projects that aren't financially viable without public subsidies. He claims TxDOT won't give us any money unless the local govt brings its own money to the table. But he has it all wrong - TxDOT wields OUR money like a weapon and is illegally withholding the gas taxes WE PAY until local officials capitulate to toll roads. That's extortion, and not the way road policy is supposed to work.
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Link to KSAT-TV 12 story on the ‘Super Toll Plan’ for San Antonio as well as the ’Turn Back’ proposal to make city taxpayers foot the bill for STATE highways in the city here.

Link to WOAI story here.

‘Super Toll’ Plan Gaining Traction at City Hall
by Jim Forsyth
WOAI radio
Thursday, November 21,2013  

That $1 billion scheme to build toll lanes on I-10, US 281, and Loop 1604 across the north side, dubbed ‘Super Tolls,’ appears to be getting traction at City Hall, as the plan was unveiled to city officials on Wednesday, 1200 WOAI news reports.

Truck toll discount another flop for SH 130

Why the truck toll discount on Texas 130 will end soon
By Ben Wear
Austin American Statesman
November 20, 2013

A toll discount for trucks on Texas 130 has significantly increased big-rig traffic on that road since the program began April 1, likely luring several hundred trucks a day off of Interstate 35 through Central Texas.

Despite that, what was projected to be a yearlong pilot program on the entire 89-mile tollway likely will be discontinued on the southern 40 miles at the end of the month, and, in the next couple of months, it likely will cease on the other 49 miles of the highway. The reason: lost revenue.

This story continues on our new premium website for subscribers only. 
Continue reading/get access here.

Traffic on private toll roads takes a dive

Another indicator that P3s are a risky bet and instead of investors shying away from financing loser toll projects, these special interests are lobbying full-time to ensure taxpayers pick-up the tab for any losses -- which WILL come. They're setting up the next 'too big to fail.'

Drop in Traffic Takes Toll on Investors in Private Roads
By Ryan Dezember and Emily Glazer
Wall Street Journal
Nov. 20, 2013

Millions of motorists cross the Foley Beach Express toll bridge every year, many to hit Alabama's beaches. But traffic never reached the 10 million drivers that the bridge's investors were led to believe would be paying tolls in 2012.

The result is a familiar scenario to global investors who wagered on U.S. toll roads in the years before the financial crisis—and have since seen many of those bets fail.

To read on, must be a subscriber. Go here.

Even An 85 MPH Highway Can't Fix Austin's Traffic Tangle

Link to article here.

Once again, the mention of swapping free Interstate 35 with the SH 130 tollway that's about to go bankrupt has raised ire across Texas, especially in Austin. It's yet another form of taxpayer bailout for private corporations.

Even An 85 MPH Highway Can't Fix Austin's Traffic Tangle
by Wade Goodwyn
National Public Radio
December 17, 2013

Four decades ago, Austin, Texas, had a population of 250,000 and a reputation as a laid-back oasis of liberal politics and live music. Today, the Austin metro area is home to 1.8 million people and has some of the nation's worst traffic congestion.

For years, the city has done little to address the growing problem. But most in the Texas capital now agree something has to change if Austin is to save what's left of its quirky character. The best way to experience Austin traffic may be from inside the police department's new helicopter. Breathtaking in the late afternoon sunlight, the state Capitol and the University of Texas Tower glow like torches.

But tear your eyes away from the skyline to look down and — poof! There goes your pretty picture. Nearly everywhere you look, the roads are backed up with cars, pickup trucks and 18-wheelers crawling along.

Alaska pulls plug on P3 project

Link to article here.

At least there's one Republican out there willing to pull the plug on the corporate welfare known as public private partnerships...

Parnell wants to abandon public-private partnership to let state build Knik Arm Crossing itself
By Pat Forgey
Alaska Dispatch
December 18, 2013

JUNEAU -- Gov. Sean Parnell says the new plan to get the Knik Arm Bridge built is to remove the "private" from the public-private partnership concept that has until now been a key selling feature.

"It is a change from the road we were on, but it isn't a change in the project itself," said Michael Foster, chairman of the Knik Arm Bridge and Toll Authority [3].

Talk of swapping I-35 with failing SH 130 tollway

Link to article here.

The Texas Transportation Commission Chairman, Ted Houghton, caused a firestorm of controversy over directing TxDOT to explore swapping free interstate 35 with the failing SH 130 tollway, forcing local traffic in Austin to pay tolls to use an interstate that today is free. Most lawmakers say 'No way!', but with TxDOT's powerful, illegal lobbying arm, it's only a matter of time. Yet another taxpayer bailout for private corporations looms...

Worsening Austin Traffic Prompts Talk of Toll Road Swap
By Aman Batheja
Texas Tribune
November 5, 2013

As congestion worsens on Interstate 35 through Austin, state leaders are seriously discussing a drastic response: tolling the highway's lanes in the city and making part of the nearby State Highway 130 toll road free.

“You’d move the free lanes out to 130 and the toll lanes to I-35,” Texas Transportation Commission Chairman Ted Houghton said last week at the commission’s monthly meeting. “I think that’s something that needs to be looked at — whether it’s legal; if it’s not, what you’d have to do to get it across that goal line.”

Black boxes: Is your car spying on you?

Link to article here.

Is your car spying on you? GPS tracks ‘consumers,’ identity theft at risk
Data collection raises concerns
By Phillip Swarts
Washington Times
January 7, 2014

Consumers' locations and other data are at risk of being leaked by companies that run automobile navigation services like GPS, a report has found, putting the national debate on privacy behind the wheel.

Despite telling consumers they are collecting the information and seeking consent, companies do not always disclose what information is collected and how it is used. Companies are also inconsistent when it comes to giving drivers the ability to delete their information.

TxDOT wants to put elevated toll lanes on I-35 in SA

TxDOT evaluating elevated toll lanes for I-35
By David DeKunder,
October 29, 2013
San Antonio Express-News



Motorists traveling on Interstate 35 from northeast San Antonio to Schertz could have the option of using toll lanes in the future as part of a proposed expansion of the highway.

The Texas Department of Transportation proposed Monday constructing elevated toll lanes along a 15-mile stretch of I-35 from Loop 410 to FM 1103 in Schertz.

As part of TxDOT's suggested plan, two elevated lanes would be built in each direction from Loop 410 to FM 1103, with access to the elevated lanes at three points along I-35: at 410 west, 410 south, and Loop 1604.

Details of the proposed project, which is part of TxDOT's 25-year plan to address capacity needs on I-35, were revealed during a public meeting and open house at the Schertz Civic Center.
The purpose of the meeting, which included exhibits and a DVD presentation on the proposed expansion of I-35, was to gather public feedback on TxDOT's plans, officials said.



Read more here. http://www.mysanantonio.com/default/article/TxDOT-evaluating-elevated-toll-lanes-for-I-35-4936983.php

Virginia Supreme Court props up toll roads

Link to article here.

Virginia Supreme Court Saves Toll Roads
Legality of toll roads restored by Virginia Supreme Court ruling.
November 13, 2013
The Newspaper.com

Toll roads in Virginia have found themselves in legal limbo since May, but the state's highest court came to the rescue on October 31. Portsmouth Circuit Court Judge James A. Cales Jr had thrown the industry into chaos with a ruling that found the General Assembly violated the state constitution when it gave the Virginia Department of Transportation (VDOT) and the Elizabeth River Crossings toll road company authority to raise taxes in the form of tolls, which would be taxation without representation. In a 55-page ruling, the Virginia Supreme Court rejected the reasoning of Judge Cales.

Since 1952, a tunnel has crossed the Elizabeth River to connect the cities of Portsmouth and Norfolk, but as the area has grown so has traffic congestion. The state has constructed additional crossings. In 1995, the General Assembly passed the Public-Private Transportation Act which allows private, for-profit companies to build toll roads with heavy subsidies from state taxpayers. VDOT was given authority to cut these deals, including setting toll rates, without involving lawmakers in any way. An Elizabeth River $2 billion midtown tunnel crossing was first on the list of projects under the new law, with tolls set to kick in on February 1, 2014.

Portsmouth residents sued in July 2012, arguing that the tolls are taxes because their primary purpose is raising revenue. The residents added that the payments are not "voluntary" because there are no reasonable travel alternatives to the tunnel. The Supreme Court rejected this line of argument, and overturned the lower court's judgment.

"In the present case, the tolls paid by users of the project facilities are user fees because: (1) the toll road users pay the tolls in exchange for a particularized benefit not shared by the general public, (2) drivers are not compelled by government to pay the tolls or accept the benefits of the project facilities, and (3) the tolls are collected solely to fund the project, not to raise general revenues," Justice Leroy F. Millette Jr wrote for the court.

The high court likewise found no problem with unelected officials at VDOT and the private company setting toll rates because lawmakers made the decision to give away this power.

"Our role is simply to ascertain whether the political entities have acted within the constitutional boundaries that limit the exercise of their governmental power," Justice Millette wrote. "If so, then their policy decisions are subject to, and properly evaluated by, the political will of the people, and we have no authority to override such political decisions."

The justices decided that the General Assembly can do whatever it wants, so long as it what it intends is not explicitly prohibited by the state constitution. The power to tax cannot be delegated, but because the court insisted that tolls are not taxes, there is no problem with delegation.

"We also hold that General Assembly properly delegated to VDOT the legislative power to impose and set the rates of user fees in the form of tolls, and that this legislative power was not impermissibly delegated to ERC," Justice Millette concluded.

A copy of the decision is available in a 200k PDF file at the source link below.

Source: Elizabeth River Crossings v. Meeks (Virginia Supreme Court, 10/31/2013)

Road repair costs have limits

Link to article here.

The ridiculous idea to swap the free Interstate 35 with the failing SH 130 tollway made news all the way up to the New York Times. You'd think that'd shame Gov. Rick Perry's Texas Transportation Commission into dropping the idea, but don't count on it unless the new Governor cleans house and brings sanity back to transportation policy.

Facing Limits on Financing Road Repairs
By ROSS RAMSEY

New York Times
November 7, 2013

Ross Ramsey, the managing editor of The Texas Tribune, writes a regular column for the Tribune.

Texas voters overwhelmingly told the state government to open a $2 billion account to finance water projects this week, a little beam of sunshine for conservative politicians asking their price-sensitive constituents to spend some money.

The supportive numbers for that proposition on financing the projects were healthy, but evidence of voters’ thrift was easy to find: In local elections on the same day, here in the middle of football season, voters that would have converted the once-beloved Astrodome into a convention hub and would have enshrined a district’s football teams — this time in the Katy school district — in a $69.5 million stadium of their own.

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.

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