Ruling allows Texas 45 Southwest tollway roadwork to begin

A federal judge in Austin has denied an injunction in the Texas 45 Southwest case, allowing construction to begin on the tollway.

The Central Texas Regional Mobility Authority will build and operate the 3.6-mile, four-lane road connecting FM 1626 to South MoPac Boulevard (Loop 1).

Ruling a week after an all-day hearing on the injunction requested by the Save Our Springs Alliance and 11 other plaintiffs, Judge Lee Yeakel said in his 14-page ruling that the plaintiffs had “failed to establish a substantial likelihood of success on the merits” of their claim.

The lawsuit, filed in February against the mobility authority and the Texas Department of Transportation, argued that the two agencies violated federal environmental law by doing separate environmental studies on Texas 45 Southwest, the MoPac “intersections” project and proposed toll lanes on South MoPac from the river to south of Davis Lane.

The arguments at the Oct. 12 injunction hearing concentrated on the underlying law, becoming in effect a mini-trial before Yeakel, because one of the key standards for granting an injunction and preventing the start of construction on Texas 45 Southwest is that the plaintiffs have a reasonable chance to win the case in the end.

Yeakel, in his order, said the authority and TxDOT “have complied with all applicable federal regulations governing the construction.” Given that, he wrote, he did not need to consider and rule on other arguments made by the plaintiffs in the case.

Lawyers for the two agencies had said Oct. 12 that they wanted to begin removing vegetation on the right of way for the road construction no later than Nov. 8 so as to have time to complete the clearing work before the early spring, when endangered golden cheeked warblers return from their southern migration.

The heavily wooded site in Southwest Travis County and northern Hays County is adjacent to city of Austin preserve land that is considered habitat for the warbler. And Flint Ridge Cave, just a few hundred feet for where the road is to be built, is home to protected cave spiders and considered a conduit for rain water to Barton Springs pool. All three proposed road projects at issue in the case lie over the recharge zone of the Barton Springs segment of the Edwards Aquifer.

TxDOT and the mobility authority, which originally had intended to build the $109 million road using TxDOT money, at least in part, considered to be federal in origin, about three years ago instead decided to use only state tax money along with $20 million in Hays and Travis County contributions. That allowed the agency to conduct a state environmental review of Texas 45 Southwest rather than one under the National Environmental Policy Act. TxDOT has the final say in both cases about whether an environmental study passes muster.

TxDOT did a federal review of the intersections project, which involves building South MoPac underpasses at Slaughter Lane and La Crosse Avenue, thus extending the freeway section all the way to MoPac’s south end. That review was approved in late 2015 and construction could start on that as early as next spring.

The federal environmental study of the South MoPac toll lanes projects, begun more than two years ago, has been on hold pending the results of the lawsuit.

The SOS Alliance could not immediately be reached for comment.

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