Judges clear way for start of Texas 45 SW construction

Updated Nov 04, 2016

A three-judge appellate panel on Friday denied a request for an injunction in the Texas 45 Southwest case, clearing the way for construction on the tollway to begin next week.

The decision came hours after a hearing in the federal lawsuit, in which lawyers for the environmentalists opposing the road had asked the judges to intervene.

“We expected that the stay would be denied,” said Mike Heiligenstein, executive director of the Central Texas Regional Mobility Authority, which will build and operate the 3.6-mile, four-lane road connecting the south end of South MoPac Boulevard to FM 1626.

“Our contractor will be on the ground Tuesday with equipment beginning construction,” Heiligenstein said.

A highway in that location has been in local plans since the late 1980s, and was the subject of an earlier lawsuit that was settled in 1992. This time, with the passage of time and a new design, the project was challenged in federal court in February by the Save Our Springs Alliance and 11 other plaintiffs, including two former Austin mayors, who argued that the road should have been studied in conjunction with two other related projects in the South MoPac Boulevard corridor.

That underlying lawsuit continues for now, with a trial possible in the coming months. But the mobility authority and its contractor by then likely will have cleared much of the tollway’s path of trees and other vegetation.

Renea Hicks, arguing for the 12 plaintiffs, said in Friday’s hearing before judges of the 5th U.S. Circuit Court of Appeals that declining to grant the emergency injunction and allowing clearing to begin would “destroy habitat” for the endangered golden-checked warbler.

Observing from nearby preserve land, city of Austin officials this year heard the song of at least one warbler. But the mobility authority effort spotted none of the birds last month in a two-week avian search, which was conducted by consultants and federal wildlife officials.

Hicks also argued that imposing the injunction would cause no real harm to the mobility authority, which the lawyer said really wouldn’t want Texas 45 Southwest completed before a project to add South MoPac underpasses at La Crosse Avenue and Slaughter Lane.

Those underpass projects aren’t set to begin until at least May 1, officials said. The mobility authority, Hicks said, is “rushing” to clear the Texas 45 Southwest right of way.

“Make them stand up to the people and say, ‘There are environmental consequences of what we intend to do,’” Hicks said.

Jane Webre, a lawyer representing the mobility authority and the Texas Department of Transportation, said the harm of waiting would occur to the driving public, which faces more dangerous and slower alternatives as long as Texas 45 Southwest doesn’t exist. The tollway would run from the south end of MoPac to FM 1626, providing a faster and potentially safer alternative for commuters to and from Hays County, many of whom use Brodie Lane or Manchaca Road to get to Slaughter and then MoPac.

“If we don’t start Nov. 8, there’s a yearlong delay,” because the land clearing must take place while the migratory warblers are out of the Austin area, Webre said. “The public’s interest is having this important infrastructure go forward.”

The arguments before the judges, in effect an appeal of a ruling against the plaintiffs last month by U.S. District Lee Yeakel in Austin, centered on a technical question of which federal regulations apply to environmental analysis of Texas 45 Southwest, the South MoPac intersections project and planned express toll lanes on South MoPac from near Davis Lane to Lady Bird Lake.

The plaintiffs contend that one set of federal rules required TxDOT, which conducted the environmental studies of Texas 45 Southwest and the underpass projects, to look at “cumulative impacts” of all three projects. Yeakel rejected that argument, saying that other rules crafted by the Federal Highway Administration supersede that general requirement. He rejected the plaintiffs’ motion for a temporary injunction preventing construction until a trial can be held. That ruling was quickly appealed to the 5th Circuit.

The three-judge panel in effect upheld Yeakel’s ruling.

The plaintiffs, aside from the SOS Alliance, include the Save Barton Creek Association, Clean Water Action, former Austin Mayors Frank Cooksey and Carole Keeton, singer Jerry Jeff Walker and others.