Judge clears way for Texas 45 Southwest construction

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

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 lawsuit.

Renea Hicks, the lead attorney for the plaintiffs, said no decision had been made on whether to file an emergency appeal to the 5th U.S. Circuit Court of Appeals in an effort to prevent the start of construction.

“We’re noodling over that at this point,” Hicks said Wednesday afternoon, adding that a better course might be “to put our most immediate effort in getting the case in front of the judge for trial, and convince him that his current view of the law, which is preliminary, is wrong in our view.”

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

Mike Heiligenstein, the mobility authority’s executive director, said Wednesday that clearing of the road path could begin as soon as Nov. 8. The agency in July awarded a $78.6 million construction contract to McCarthy Building Cos.

Construction is expected to last three years.

The lawsuit, filed in February, argued that TxDOT and the mobility authority had violated federal environmental law by doing separate studies on Texas 45 Southwest, the planned MoPac underpasses at Slaughter Lane and La Crosse Avenue, and the proposed toll lanes on South MoPac from Lady Bird Lake to south of Davis Lane. After a trial at a date to be determined, Save Our Springs and the other plaintiffs want the judge to rule that a single environmental study analyzing all three projects must be done.

The arguments at the Oct. 12 injunction hearing concentrated on the underlying law, becoming in effect a minitrial 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 lawsuit.

Yeakel, in his order, said the authority and TxDOT “have complied with all applicable federal regulations governing the construction.” Given that, he wrote, he didn’t need to 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 for the tollway construction in early November, so as to have time to complete the clearing work before February, when endangered golden-cheeked warblers return from their southern migration.

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

TxDOT and the mobility authority originally intended to build the $109 million road using TxDOT money, which is at least in part considered to be federal in origin. But about three years ago, TxDOT 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. In either case, TxDOT has the final say 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. TxDOT approved its own study 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 lawsuit’s outcome.

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