TEXAS TRANSPORTATION COMMISSION MEETING

Dewitt Greer Building
Commission Room
125 East 11th Street
Austin, Texas

9:00 a.m. Thursday, December 17, 1998

COMMISSION MEMBERS:

DAVID M. LANEY, Chair
ROBERT L. NICHOLS

DEPARTMENT STAFF:

CHARLES W. HEALD, Executive Director
KIRBY W. PICKETT, Deputy Executive Director
MICHAEL W. BEHRENS, Assistant Executive Director
for Engineering Operations

P R O C E E D I N G S

MR. LANEY: Good morning. Let me call the meeting of the Texas Transportation Commission to order and welcome all of you to this December 17, 1998, holiday edition of the Transportation Commission. It's a pleasure to have all of you here today.

Let me note for the record that public notice of the meeting, containing all items of the agenda, was filed with the Office of the Secretary of State at 4:22 p.m. on December 9, 1998.

It is, as I alluded to just a second ago, a holiday season, and I know a number of you will be traveling on the roads during the holiday season. Accident and injury and fatality rates are always up; be very, very careful, please.

Also, I want to spend a second focusing on some accomplishments during the year, highlights of the Department. And I'm not going to spend much time on it and I'd like comments from Commissioners Nichols in a minute. But we've had a great year in a lot of ways, starting, of course, with the great victory in Washington with TEA-21 and all of its ramifications for years to come, including some challenges it presents that we need to address in the legislative session beginning January 1. That was a great step forward for transportation in Texas.

Also, this was the year that I think one of the real significant initiatives, early initiatives of the Commission, but led by Robert Nichols in a way, came to fruition, and that is the completion of the work and the final conclusions as to the phasing and the funding for our trunk system and the completion of major segments of our trunk system throughout the state; a very, very significant move, and our thanks to Robert Nichols on that front.

This is also the year he finished his visits to all 25 districts, which was a phenomenal thing.

On the other side of the coin, we had some significant events that it's probably worth taking note of, because I don't think any agency or organization in the state stood out like TxDOT did in connection with the fires of the summer of 1998 or the floods along the border area. We have a lot to be thankful for, but I think Texas should be thankful for, as much as anything else, the efforts and the commitment of the employees of TxDOT who went way beyond the call of their duty, and in many cases, put their own selves at risk to some extent.

So it's been a very interesting year, a very productive year, but we really won't be able to fully capitalize on what we accomplished with TEA-21 unless we're successful in covering a gap created by our additional $700-or-so million a year requiring a $200 million or so state match, which we don't have the funds for. DPS does have the funds for, and we would be delighted to borrow some of those from DPS for the next six or so years.

But we do have some very interesting and challenging issues we're going to need your help on as we step into the session in January, and we look forward to working with our legislators very closely on that and a number of other issues, to see if we can continue the momentum I think we've created in the last few years.

Just a note. Anne Wynne will not be with us this morning; she has a son who is ill. And I'm sorry she is not here, because we're closing in on the end of her term and she has been a very significant contributor to the Department for the six years of her term that conclude in February of next year. So, sorry she's not here, but look forward to having her back in January.

Mr. Nichols, do you have anything to add?

MR. NICHOLS: Very little. I just wanted to reemphasize the significance of the action by the Department during the emergencies that occurred here in the state this past year: the drought that brought on the major West Texas fires that went on -- I think they were much greater than anybody can imagine unless they had been out there. But the Department, working in conjunction with several other emergency things, did an incredible job. People went way beyond the call of duty on that. And then only in Texas, the next emergencies were floods. To go from fires to floods, and the Department's reaction -- just highly commended by us.

I think the actions of TEA-21, as the Chairman mentioned, creates new challenges for us to react, because the increases are so quick, to make sure those projects are taken care of efficiently in the proper places, for the most effect for the overall state. And I look forward to the next year.

MR. LANEY: With that, the first item of the agenda is the approval of the minutes of the regular Commission meeting held on November 19, 1998.

MR. NICHOLS: So moved.

MR. LANEY: And seconded. All in favor?

(A chorus of ayes.)

MR. LANEY: Wes.

MR. HEALD: Thank you, Mr. Chairman. This should be a relatively short meeting today, starting off with Agenda Item 2, and Al Luedecke will present that; it has to do with the US 190 feasibility study.

MR. LUEDECKE: Good morning, Commissioners. My name is Al Luedecke, Director of the Transportation Planning and Programming Division.

We've completed a study that y'all had requested a while back on US 190 in East Texas. We want to give you a report on that today. I figure you're going to see enough of me during the rest of the meeting, so I've asked one of my planning engineers, Ms. Peggy Thurin, to give you the presentation. She's with our Systems Planning Section.

And you'll note, we have left the maps of a lot of the work that was done here to go along with the reports that were in your books. That was an oversight on our part that those weren't included when we sent them down. With that, I'll turn it over to Ms. Thurin.

MS. THURIN: Good morning. The US 190 Coalition appeared before the Commission in February of '96. They requested that we improve US 190 to a four-lane divided highway and to make it, in their terms, straight as an arrow. The Commission directed staff to study this issue, and we subsequently hired Rust, Lichliter & Jameson to do the study.

Basically, what the study looked at was the feasibility of upgrading US 190 and State Highway 30 to a four-lane divided highway, to look at the potential of the redesignation issue, and then to produce a project prioritization list. The corridor is approximately 220 miles in length; of that, 168 miles are two-lane.

At the beginning of the study, we formed a steering committee made up of elected officials, local government staff, community leaders, and affected citizens throughout the corridor. These folks were going to have input into the process and to help us disseminate the information out to their constituents.

We started out with probably the most contentious issue of the study and that was the redesignation issue. And to begin to answer that question, we set up an O&D, an origination and destination study, at three locations in the corridor: two east of Bryan and College Station on State Highway 21 and State Highway 30, and another site east of Huntsville.

Approximately 42 percent of the vehicles that were passing through the sites were surveyed. We collected information regarding vehicle classification, trip origin/destination, trip purpose, and most importantly, the route selection criteria.

Basically, we were asking the folks why they chose the route they were driving, and of the 5,600 surveyed, not a single person said they had chosen that route based on its signage. Most of them said they chose it because it was the shortest distance from point A to point B.

The steering committee also brought up some issues concerning the deployment of troops from Fort Hood. I guess there had been some confusion during the Desert Storm mobilization with the dogleg on 190. It goes up to Madisonville and then goes down I-45. We interviewed some of the officials at Fort Hood, and they basically said that the military would use any highway within Texas that they felt they needed to for their maneuvers and that the route designation really did not play a factor in that.

We also explained to the public that while State Highway 21 is NHS, and State Highway 30 and State Highway 21 are both trunk system, moving that US 190 designation off of State Highway 21 to State Highway 30 would not affect the NHS designation. And we presented these facts to the public and presented a recommendation that we did not think the redesignation issue needed to go past this point.

We looked at the existing conditions and corridor alternatives. We looked at the engineering aspect: what deficiencies exist, can we build the proposed facility; we looked at traffic: what's there now, what are we anticipating; environmental issues; the cost of the improvements; and the public acceptance of those.

We looked at seven environmental factors: sensitive species, natural areas, wetlands, public lands, cultural resources, solid waste sites, and HAZMAT sites.

We found two areas that have potential major impacts. The first is between Huntsville and Livingston, and that's the impact of crossing Lake Livingston and the taking of wetlands there.

The second spot is between Woodville and Jasper, and again it's the impacts of crossing Lake Steinhagan and the impacts of taking those wetlands. There's also the potential for lead contamination with the existing Nueces River bridge.

All the other constraints that we found within the corridor were relatively minor and could be worked around.

Currently in the corridor, the traffic volumes run between 26- and 5,080 in the rural areas. In the urban, areas that jumps up to about 10,000 to almost 30,000. the projected increases for the rural areas are about 5,100 to 11,000, and in the cities that goes up to 14- to 60,000.

We found that the projected traffic increases range from the Bryan-College Station area to the Polk-Tyler county line. Those annual increases were about 2-1/4 to 2-3/5 percent annually. East of that point, the projected increases drop off to about 1.2 to 1.4 percent.

We looked at three alternatives. The first alternative was to upgrade the entire corridor to a two-lane improved geometric facility with ten-foot shoulders and some four-lane spot improvements. This costs $393 million. It was a slight increase in the mobility for the area; it avoided major environmental impacts, and was a minimal safety improvement. And while the public realized that there was a need for the improved shoulders, they really did want a four-lane facility out there.

The second alternative we looked at was upgrading US 190 and State Highway 30 to a four-lane divided facility to the Polk-Tyler county line, and then do some spot four-lane improvements east of that point, and improve the two-lane that's out there to a standard geometric facility. That increased the capacity with the traffic increases, it minimized the environmental impacts, and it also improved the safety, and it had some acceptance with the public.

And the final alternative we looked at was upgrading the entire corridor to four-lane divided. It had the most safety and environmental impacts and maximized the capacity throughout the corridor. That alternative was $630 million to do that improvement. The improvement cost for upgrading to the Polk-Tyler county line was $541-.

When we started forecasting the funding to do this work, we had a few basic assumptions: We didn't assume that there would be any new gas taxes, and we only assumed that the district bank balances would be available for use on this project. And this might be optimistic, but we assumed that 10 percent of that fund for the districts could be applied to projects in this corridor. And what we found out was that under those assumptions, we were still short $414 million to do Alternative 2, which is the upgrade to the Polk-Tyler county line.

We presented this to the public. And a month ago, I had lunch with Judge Thompson, and the comment was made: Can we take the extension from the Polk-Tyler county line to Woodville to meet up with US 69, which is a Phase 1 trunk corridor. And for system continuity, that was a reasonable request, and that's why the minute order is written the way it is.

Basically, it's the same story all over the state: The need exists, the funding doesn't. But the project does give us a blueprint to do improvements as the funding becomes available. So we're recommending that you approve the study as noted.

MR. LANEY: Questions.

MR. NICHOLS: Are there some people to comment on this, David?

MR. LANEY: Yes, I think so.

Don't go too far, because we may have some questions.

We have at least one person signed up to speak on this. Representative-elect Dan Ellis.

REPRESENTATIVE-ELECT ELLIS: Thank you, Commissioners, and thank you, staff. Take it easy on me; I'm a rookie at this. Hopefully, this is the first in a long line of presentations that I'll get to make before y'all, and I look forward to working with you.

First of all, let me thank you for the opportunity to make some brief comments on behalf of the US 190 Coalition. These members represent towns, cities, counties, Native American tribes, councils of governments, chambers of commerce, businesses, and individuals from the Sabine River to the Bryan-College Station area.

We appreciate the work done on the study that you commissioned by the firm of Rust, Lichliter & Jameson. The firm did a good job of collecting data and public comment from a very diverse nine-county area, spanning three TxDOT districts. Their task was considerable, but they did a fine job in a timely manner. We commend them in general for the recommendation, and then you for being responsive to Representative Allen Hightower's request on the Coalition's behalf a couple of years ago.

I'm proud to say that, like many others in this room, I attended that meeting in support of this project and of Representative Hightower. When I attended that meeting, I came as a representative of Polk County, serving as President of the Polk County Chamber of Commerce. Today I'm privileged to have been elected to the District 18 seat that Mr. Hightower occupied for 16 years, and represent four counties that are intersected by US 190.

Please allow me to assure the Commission and the TxDOT staff that I intend to continue the same support of our Highway Department that Allen had provided. All I expect in return is your considerate consideration of the worthwhile projects recommended in Rust's study report.

East Texas folk are patient, but we're realists. We know that in the end, straight-arrow route improvement is not in the offering, but we want you to know that we do not wish to be left on the back burner for piecemeal consideration out of loose-change funding either.

This study identifies a number of pressing projects that address critical needs in specific areas along the route. Bridge structure improvements are already underway and are being paid for by the U.S. Department of the Interior in the area of the Alabama-Coushatta reservation in Polk and Tyler Counties. We welcome the help from the federal government, we're happy that they recognized the carrying capacity limitations and hazards in Washington and took action to help be a part of the solution.

The allocation of scarce resources is a difficult burden for the Commission and the staff of the Department of Transportation in a state this size and with the complexity of ours, but we must not overlook the transportation needs of the citizens of the less-populated areas of the state where the raw materials originate that are necessary to sustain our expanding economy. When the transportation routes that are limited and impacted as much as US 190 is, commerce in the region will surely and severely suffer.

The study is complete and has been presented. We know that the study was a prerequisite, a first step. Please do not let this initiative end here as a document on a back shelf.

Members of the US 190 Improvement Coalition met recently with representatives from Alexandria and Leesville, Louisiana, in Jasper to exchange ideas and develop a dialogue for concurrent improvements to the route on both sides of the Sabine River. My understanding is that letting on some phases of improvements in Louisiana will occur as early as 1999.

Our Texas highways have always been a source of pride, and I feel that any comparison of road conditions with our adjoining states should always reflect superior conditions in Texas. Wouldn't it be a shame if the good folks from our neighboring state found the funds and gathered the will to make the necessary improvements to the route before we did.

Once again, I want to thank you, the members of this Commission, for your valuable time, and also a big thank you to those in attendance today from the corridor in support of the 190 project. I want to assure you, the Commission and the staff of TxDOT, that I will be most happy to work with you and your very capable staff as a member of the Texas Legislature. Please do not hesitate to call on me at your convenience for consultation or assistance in support of a well-balanced transportation system, as well as any problems that I may assist you with that occur within my district.

Thank you very much, gentlemen.

MR. LANEY: Thank you, and welcome. That's the last time we'll be easy on you.

(General laughter.)

MR. LANEY: Do you have any questions?

MR. NICHOLS: We will be calling for help.

I have some questions on the study. I think they're pretty minor -- or some of them may be observations.

There's one section where it adds up the money for the different alternatives, and it refers to the section of State Highway 21, Bryan to I-45, has a pretty large dollar figure. Haven't we already funded a major portion of that?

MS. THURIN: I'm sorry. I'm not sure where you're referring back to.

MR. NICHOLS: I'm in this book, I-6. I'm not trying to surprise you. Did this take into consideration, I guess, the portions of these lanes that are already being funded?

MS. THURIN: Yes. We did look at what was committed along the route.

MR. NICHOLS: Okay. So if it was already funded but not let, was that dollar figure added in here as part of the construction costs?

MS. THURIN: If it was a committed project, we assumed that it was being built.

MR. NICHOLS: And not added to the total cost?

MS. THURIN: That is my understanding, yes.

MR. LANEY: Okay. That answered that question.

An awful lot of this roadway was currently two-lane, and the volumes on that roadway are pretty substantial in a lot of the areas. On a standard two-lane, like the majority of this is, what is the vehicle capacity per day on that two-lane?

MS. THURIN: Normally it breaks to a four-lane -- between 5,000 and 7,500 is where we go up and make that decision to bump up.

MR. NICHOLS: So somewhere in the 5,000 to 7,000, you would say you are at capacity.

MS. THURIN: Right. You factor in the truck percentage also into that.

MR. NICHOLS: A great portion of this right, west of the line you indicated, is already at that capacity.

MR. LUEDECKE: Approaching it.

MS. THURIN: Yes.

MR. NICHOLS: Rapidly approaching it.

MR. LUEDECKE: Particularly in the built-up areas.

MR. NICHOLS: Yes. I notice in one area they're referring to -- I guess particularly during the summer months, vacation, the volumes jump from like 5,000 a day to like --

MS. THURIN: Almost a 400 percent increase.

MR. NICHOLS: -- 22,000 a day, and that's on the

two-lane.

MR. LUEDECKE: Right.

MR. NICHOLS: Representative-elect Ellis mentioned to me earlier when we were talking -- I thought he may comment on it -- but he said that Louisiana on this same corridor, was committing to make it a four-lane all the way east to west across Louisiana. I didn't see anything in the book or study as to what the other states --

MR. LUEDECKE: We've not been contacted by Louisiana yet, at this time, on the study, other than the meetings that were held in Jasper.

MS. THURIN: Yes. I had lunch with some of the Louisiana representatives about a month ago, where they were presenting what they had planned for their highway system.

MR. NICHOLS: So are they indicating that they are making this an important corridor through Louisiana?

MR. LUEDECKE: We believe they are, but we don't know what their projects are yet.

MR. NICHOLS: Okay. That's all I had. Thanks.

MR. LANEY: And I don't have any further questions. Appreciate the report very much; it's helpful. It's a big challenge from a funding standpoint. And, Representative Ellis, thank you very much.

REPRESENTATIVE-ELECT ELLIS: Commissioners, if I can interject something.

MR. LANEY: Sure.

REPRESENTATIVE-ELECT ELLIS: Our understanding with Louisiana is that it will be four-lane all the way from state line to state line. They are actually letting some of those projects in '99 and they're going up through 2004 with lettings, so they're planning on proceeding pretty quick.

MR. LANEY: Thanks.

Is any of this on the trunk system already, in the early phase, first phase?

MR. NICHOLS: The whole thing -- most of this roadway is on the trunk system, as I understand it. And I know that when the phases were looked at that last round, this particular corridor ranked very high in the process.

MR. LANEY: So is any of it in the first phase of the trunk system?

MR. NICHOLS: No.

MR. LUEDECKE: It didn't make the first phase. It's a good candidate for second phase.

MR. NICHOLS: Yes.

MR. LANEY: Great. Thank you very much.

Wes?

MR. HEALD: There is a minute order for your consideration, accepting the report.

MR. LANEY: Oh, accepting the report. I don't have a copy of the minute order. I don't think you do either. Secret minute order. This moves it into Phase 1?

MR. NICHOLS: No, I don't think so. I think it just accepts -- I'm not so sure about this portion, but I think we can just accept the report.

MR. LANEY: Can we come back to this? I want to bear down on this and look at it a little bit more carefully; this is unfamiliar to me. Sorry. It didn't appear in our books.

MR. HEALD: Okay. Moving along. I guess this is Al Luedecke day. And, Peggy, I was told you were supposed to be very nervous. You did a great job. Thanks.

Under Agenda Item 3, Programs, and Al has got several items here.

MR. LUEDECKE: Once again, for the record, I'm Al Luedecke, Director of Transportation Planning and Programming Division.

Item 3(a), this minute order authorizes the replacement of a substandard bridge on Farm-to-Market Road 787 at Little Pine Island Bayou in Hardin County; it's in the Beaumont District. The bridge is currently in Priority 2 in the On-System Bridge Replacement and Rehabilitation Program; however, due to very low sufficiency rating, it needs to be moved to Priority 2. The timber piling and substructure has deteriorated and is in need of total replacement. The estimated cost of this project is $279,000, and we recommend your approval of this minute order.

MR. LANEY: Do you have any questions about this bridge, Robert?

MR. NICHOLS: I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. LUEDECKE: Moving on to Item 3(b), the Department applied for and received authorization from the Federal Highway Administration to obtain $1.6 million for the construction of a new ferry boat at the Port Aransas ferry landing. Obligation from the Federal Highway Administration needs to be granted by December 31, 1998, in order for Texas to construct this new ferry using the additional federal funds.

This minute order authorizes the executive director to use these funds to construct the much-needed ferry boat, which will replace a nine-car boat with a 20-car boat to handle traffic more efficiently. We recommend your approval of this minute order.

MR. LANEY: Do you have any questions, Robert?

MR. NICHOLS: I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. LUEDECKE: Item 3(c), a public hearing was held on October 29, 1998, to receive public input concerning the project selection process and relative importance of the various criteria on which the Commission bases its project selection criteria. Four participants provided oral comments and testimony at the public hearing, and two written comments were received before the November 9, 1998, deadline.

The comments and responses are shown in your books as Exhibit A. Also, Exhibit B is the project selection process as presented at the hearing.

We've had an opportunity to review the responses to the project selection process, and we believe that the process, as presented, is consistent with the agency

goals to manage and develop and preserve the state's transportation system in a safe, effective, and environmentally sensitive manner.

We recommend your approval of the minute order to formally close the project selection process public hearing.

MR. NICHOLS: The only comment I had was the comments made by the public and some of the entities I thought were good comments, and I thought the responses were also very adequate to good, and I move that we accept it.

MR. LANEY: And I second it. All in favor?

(A chorus of ayes.)

MR. LUEDECKE: Thank you. They were good comments this year.

Item 3(d), in early November we received draft guidelines on how to submit applications for projects to be submitted for the National Corridor Planning and Development Program, and the Coordinated Border Infrastructure Program. It's taken on the name the Corridors and Borders Program here.

We transmitted these guidelines to the districts and the metropolitan planning organizations, and as a result, we received 36 applications, totaling $224 million by the December 4 deadline we established in order to properly prepare the final listing for your consideration for submission on the January 16, 1999, deadline.

The staff, after several iterations, has developed the recommended prioritization of projects shown in Exhibit A. Some of the criteria used to establish a project's priority were: the project could be let to contract early; the project is eligible for both categories; the project is less than $14 million; and the project has a high percentage of leveraging.

Please note that one project for an IBHS study along the I-35 corridor and I-29 corridor from Laredo into Canada is a multi-state study that will be submitted by Iowa with the concurrence of all the other states along the corridor.

Also, three projects: a bypass feasibility study for northeast El Paso, two ramp closures on I-35 in North Austin, and a location and routing study through the Killeen-Temple area have been suggested for possible funding by the Department. If approved, there would be no need to submit them to this program.

All projects will be submitted to the Federal Highway Administration in this prioritized list. However, due to the time constraints, we will focus on providing the most complete applications on the first $140 million of projects.

Your approval of this minute order, including the list of projects to be submitted to the Federal Highway Administration, is requested.

MR. LANEY: I'd like to make a comment on it, first of all. Al, I appreciate all the work you all have done on this.

MR. LUEDECKE: Thank you.

MR. LANEY: And I know it involved a lot of communication with our districts and the MPOs and others, and whatever prioritization we give to this, I think it was a very healthy inventory gathering process to see what was out there and what was necessary. And as I see it, I think there are at least a handful of things that appeared in the early drafts of the list that we have simply decided -- or will simply decide to do, independent of whether discretionary funding is available, simply because of the value of the projects and the cost of the projects.

But this is a very important step. I hope it's competitive, and I sure think it will be. And I want to emphasize at least the importance of not only the projects that are at the top of our priority list -- which seem focused pretty specifically on border kinds of issues or combined border and border-corridor infrastructure issues -- but those at the bottom of the list are very important. And anybody involved in the development or preparation of proposals that sort of fall farther down the list shouldn't be discouraged.

This is the first of a number of rounds, and this puts them, for the most part, well in the running for a call to be made just a handful of months away, probably five or six months from now. So they are very much alive and well and should not be viewed as having any note of discouragement from the Commission.

I think these are very valuable projects, and so I commend everybody involved in these things, and again, encourage anybody involved in the projects that are not toward the top of the list to stay at it, because we've got a lot more to do over the next number of years and there's every reason to believe that all of these things could be funded within the next few years.

So, my compliments to you and everybody else involved, and let's keep at it. This is a great start.

Robert, do you have anything?

MR. NICHOLS: I certainly echo what the Chairman said, and also for people when they are looking at this list to emphasize that we are trying also to make sure that projects score on a national level. We are in competition with many other states and multi-state groups, and I think the staff did an excellent job on trying to take that into consideration.

MR. LUEDECKE: We appreciate those comments. I would take a moment to mention that the districts and the MPOs -- this is a very short deadline on this whole system, basically at the wrong time of year, also, you know, Thanksgiving and everything else, but they came through and got us very good applications in. We're real pleased.

MR. NICHOLS: Since this first round came upon everybody so quick, would you venture a guess as to an approximate time for the next round?

MR. LUEDECKE: I believe they're going to have the comments -- these are draft rules that we're working under now. The comments are due in in the middle of February, I believe; they will come out, hopefully very quickly thereafter, with the final guidelines or rules for submission which may or may not change very much, and we would begin the work probably in April or May to put the program together and have a much more deliberate process than we've been able to have this time.

MR. NICHOLS: So our next submission of projects would be in the summer or fall?

MR. LUEDECKE: Probably summer, no later than August. I would think they'd want to have it in for their fiscal year.

MR. NICHOLS: We'll turn right around in six or seven months and submit another list of prioritized projects.

MR. LUEDECKE: Yes, sir, certainly will.

MR. LANEY: Can I have a motion?

MR. NICHOLS: I so move.

MR. LANEY: And I second. All in favor?

(A chorus of ayes.)

MR. LUEDECKE: Next is Item 3(e). This minute order tenders a proposal to the City of Round Rock for their participation to reconstruct US Highway 79 from County Road 195 to County Road 110 to a four-lane divided highway. Due to current land use, this section of highway has been the site of numerous accidents, and reconstructing the facility to a four-lane divided roadway will improve the operation and safety.

The total estimated cost of the project is $6-1/2 million. The City will provide a total of $2 million toward right of way, utility adjustments, and construction. TxDOT will provide a total of $4-1/2 million toward utility adjustments, construction engineering, and construction. The $3.2 million is for construction and will be funded through the Strategic Priority Program.

US Highway 79 is on the trunk system, and this 2.9-mile improvement will certainly enhance the operation of this segment of the highway. We recommend your approval of this minute order.

MR. LANEY: Where on the jerseys of this new minor league baseball team will the TxDOT logo appear?

MR. LUEDECKE: I believe there may be some people here from the Round Rock area that could address that for you.

(General laughter.)

MR. LANEY: Robert, do you have any questions on this?

MR. NICHOLS: No, no questions. I move we approve it.

MR. LANEY: I second it. All in favor?

(A chorus of ayes.)

MR. LUEDECKE: I've got one more, Item 4. this minute order appoints five members to the Port Authority Advisory Committee. Senate Bill 37 contained an amendment to the Transportation Code which created the Port Authority Advisory Committee, which will advise the Commission and the Department on port matters. The five-member committee will serve staggered terms ending on December 31 of each year.

The five members are required by the legislation to represent ports in the following manner: one for the Port of Houston; two for ports north of the Matagorda-Calhoun county line; and two ports south of this county line.

The members recommended for this advisory committee are: Ms. Pat Younger, three-year term; Mr. John Roby, two-year term; Capt. Michael T. Godinich, one-year term; Mr. Bob Van Borssum, two-year term; and Mr. Raul Besteiro, Jr., three-year term.

Your approval of this minute order is requested.

MR. LANEY: So moved. Can I have a second?

MR. NICHOLS: Second.

MR. LANEY: All in favor?

(A chorus of ayes.)

MR. NICHOLS: I would also like to say there were a lot of very good people that were interested or looking at this or recommended for this, and it's a shame that it's only allowable to have five, but I think the rule for five is great. It's awful difficult when you have so many good people.

MR. LUEDECKE: I think it also enhances our multimodal input that we need to tie the systems together.

MR. LANEY: Before you leave, Al, let's go back to this 190 issue and bring that to rest.

MR. LUEDECKE: Yes, sir.

MR. LANEY: As I understand the minute order -- and I'm sorry, I had not seen the minute order before this morning -- what's being asked is for acceptance of the study -- which I don't think there will be any problem with -- and funding?

MR. LUEDECKE: No, sir. There's no funding associated with that.

MR. LANEY: It's just acceptance of the report.

MR. LUEDECKE: Yes, sir. That's all it is.

MR. LANEY: I thought I understand district discretionary funding somehow or other.

MR. LUEDECKE: No, sir. They did mention that a lot of the funding for these spot improvements along the way might come from the districts' bank balance programs, the Rural STP, and so on.

MR. NICHOLS: But the minute order also says: "And staff recommendations." Is that to expand the study or to consider the project all the way over to 69?

MR. LUEDECKE: It extends it over to 69, and you'll find much the same situation; the numbers would change.

MR. NICHOLS: I don't have any problem with that.

MR. LANEY: Can I have a motion?

MR. NICHOLS: I so move.

MR. LANEY: I second. All in favor?

(A chorus of ayes.)

MR. HEALD: Thank you, Al.

Agenda Item 5, report on project status and consider approval of time extension for Camino Colombia, Robert Wilson.

MR. WILSON: Good morning, Commissioners. I'm Robert Wilson, Director of the Design Division.

As you're aware, TxDOT is required to approve private toll roads, as outlined in Title 43 of the Texas Administrative Code, Section 27.30 to 27.37. On January 30, 1997, the Commission passed Minute Order 107059 approving such a private toll road to be financed, constructed, and maintained by Camino Colombia, Inc.

As a condition of that minute order, it specified that construction should begin within two years, or by January 30 of 1999. Camino Colombia has been pursuing financing, studies, and design of the project since that time; however, this process has taken longer than was anticipated and Camino Colombia has requested an extension of one year to begin the construction. TxDOT has reviewed and approved the first detailed construction plans package as meeting design criteria at this time.

The minute order I bring to you today would authorize the executive director of the Department to grant extensions up to one year, while reporting to you on a quarterly basis as to the progress being made on the project. Staff would recommend your approval of the minute order.

MR. LANEY: Robert, I appreciate your recommendation. Can I suggest some language change on the minute order?

MR. WILSON: Sure.

MR. LANEY: Sorry that I didn't raise this before the meeting.

In the final paragraph: "Now, therefore, it is ordered that the executive director is authorized for "-- I would like to strike the phrase "no more than one year from the date of this order," so it reads that "The executive director is authorized to grant extensions as may be necessary to Camino Colombia, Inc., for up to one year" -- that's a new phrase -- and continuing, "for commencement of construction, provided that the executive director certifies" -- and so forth to the end of that sentence. And then after the semicolon, add this phrase: "Any extensions beyond one year shall require Commission approval."

I don't think it does any damage to what you intended; it just clarifies a few things in my mind.

MR. WILSON: Certainly.

MR. NICHOLS: I'll second.

MR. LANEY: Motion from me and a second from Mr. Nichols. All in favor?

(A chorus of ayes.)

MR. LANEY: Thanks. If you didn't get all that language, I've got it.

MR. HEALD: We've got a speaker.

MR. LANEY: Oh, I'm sorry. We have a speaker? I hope he doesn't oppose the action we just took.

(General laughter.)

MR. LANEY: Mr. John Boehm who represents Camino Colombia.

MR. BOEHM: I simply turned in the card to be a resource witness; I don't need to speak. Thank you very much.

MR. LANEY: Okay. Thank you, John.

MR. HEALD: Moving along, Agenda Item 6, Rules for Proposed Adoption. Dianna.

MS. NOBLE: Good morning, Commissioners Laney and Nichols, and Messrs. Heald, Pickett, and Behrens. For the record, my name is Dianna Noble, and I'm the Director of Environmental Affairs for TxDOT.

Agenda Item 6(a)(1) concerns a proposed memorandum of understanding with the Texas Parks and Wildlife Department. Transportation Code 201.67 requires TxDOT to adopt a memorandum of understanding with each state agency that has responsibilities for the protection of the natural environment, the preservation of the natural environment, and for the preservation of historic or archaeological resources.

The proposed memorandum of understanding describes procedures providing for Texas Parks and Wildlife review of TxDOT projects that have the potential to affect natural resources within the jurisdiction of Texas Parks and Wildlife. TxDOT and Texas Parks and Wildlife are proposing to conduct a joint public hearing to receive comments on the memorandum of understanding.

The minute order before you proposes the repeal of the current memorandum of understanding and simultaneously proposes a new memorandum of understanding. Staff recommends approval of the minute order, and I'll be glad to answer any questions.

MR. LANEY: So this is proposed, subject to public hearings and comment, and it will come back to us after whatever changes you've made for other additions or comments from us.

MS. NOBLE: That is correct.

MR. LANEY: Any questions?

MR. NICHOLS: I had already gotten all my questions answered before in going through that. I move we adopt it for proposed rules.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. LANEY: Thanks, Dianna. Appreciate all the work on that.

MR. HEALD: Item 6(a)(2), Robert Wilson.

MR. WILSON: Again for the record, I'm Robert Wilson. I'm Director of the Design Division.

I'm bringing to you a minute order which would approve posting of proposed rules amendments to Sections 9.30 to 9.31, 9.33 to 9.39, 9.41 and 9.43 concerning contracting for professional services of architects, engineers, and surveyors.

There are several amendments that are aimed at shortening the procurement time, simplifying categories of work to allow more firms to compete, and adding subjectivity into the scoring and selection of the providers.

Some of the major proposed amendments are: allowing either an interview or a proposal instead of requiring both; allowing a waiver of pre-certification if a category of work is less than 5 percent of proposed contract or if the contract fee is anticipated to be less than $250,000; allowing a wider scoring range on each item of a 1-to-10 scale instead of a criteria now used of 1-to-3 scale; shortening the allowable time extensions for negotiations from two 30-day extension periods to two 10-day extension periods; and clarifying the pre-qualification criteria in several categories.

If you approve this minute order, these proposed amendments will be published in the Texas Register for public comment, and a public hearing will be scheduled in January. Any comments received will be addressed and final rules will be brought back to you for adoption probably in March. Staff would recommend your approval of this minute order.

MR. LANEY: Robert, I appreciate all the work that went into this, and I know it was extensive. And I think the result is very strong, and I'll look forward to seeing what comments you reel in from the notice of the proposed rules.

Do you have any comments, Robert?

MR. NICHOLS: Just to the effect that I want to compliment the work that staff did. I know you put a ton of work in it, and I think the proposed changes are very beneficial for the state, so I look forward to the public comment also.

MR. LANEY: Can I have a motion?

MR. NICHOLS: With that, I so move.

MR. LANEY: I second. All in favor?

(A chorus of ayes.)

MR. LANEY: Thanks, Robert.

MR. HEALD: Item 6(a)(2), Dianna Noble.

MS. NOBLE: Again for the record, my name is Dianna Noble, the Director of Environmental Affairs.

Agenda Item 6(a)(2)(b) concerns the proposed adoption of procedures for using competitive sealed proposals to procure the services of technical experts, including archaeologists, biologists, geologists, historians, and other technical experts to conduct environmental and cultural assessments for transportation projects within the authority or jurisdiction of TxDOT.

The minute order before you proposes the adoption of new sub-chapter (f) concerning contracts for scientific services. Staff recommends approval of the minute order.

MR. LANEY: Any comments?

MR. NICHOLS: No comment.

MR. LANEY: No comment either.

MR. NICHOLS: I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. HEALD: 6(a)(3), Al Luedecke again. We're going to have to give him an award or something today, I guess. (Laughter.)

MR. LUEDECKE: The abolition of the former Texas Turnpike Authority and the creation of the Texas Turnpike Authority Division in the Department impose additional requirements relating to the Commission's approval of the activities of the Authority. Transportation Code Chapters 361 and 362 require the approval of the Commission for certain activities or phases of the development of a turnpike project constructed, maintained, and operated by the Authority.

We are proposing the repeal of existing Sections 27.20 through 27.26, because they no longer are necessary with the proposed adoption of the subject matter in an amended form, in new Sections 27.11 through 27.20. The revised rules define policies and procedures governing Departmental approval or disapproval of certain phases of the development of turnpike projects for the Authority, including additional definitions.

Sections 27.22 through 27.25 are replaced unchanged and re-numbered as Sections 27.13 through 27.16, respectively.

Section 27.17 removes the previous requirement that sections of toll roads be removed from the state highway system, and removes the requirement for the Authority to reimburse the Department for the cost of highway transferred to the Authority. It also removes the requirement for the governor's approval of a transfer from a non-tolled road to a tolled facility.

The new Section 27.18 describes the requirements for the Commission concurrence in the right-of-way acquisition by the Authority through the use of condemnation. New Section 27.19 describes the requirements for the Commission to approve the Authority's use of surplus revenues for another toll project, and a new Section 27.20 describes the criteria for the Commission approval of an Authority request to pool projects.

Your approval will circulate these proposed rules and receive public comments as requested.

MR. LANEY: Have these been run by and reviewed by Phillip Russell?

MR. LUEDECKE: Yes, they have.

MR. LANEY: Terrific. Do you have any questions, Robert?

MR. NICHOLS: No questions. These are proposed; I move we go ahead and adopt them for proposed.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. LANEY: Dianna, just in case you were wondering about our little conversation after you presented the proposed rules for scientific services, in your list of various services, archaeologists, biologists, I thought you said theologists, and I had to check the definition. I was relieved.

(General laughter.)

MR. HEALD: 6(b), and these are rules for final adoption, Thomas Bohuslav.

MR. LANEY: Nice shirt, Thomas.

MR. BOHUSLAV: Thank you very much. My wife dressed me this morning.

(General laughter.)

MR. BOHUSLAV: My name is Thomas Bohuslav. I'm the Director of the Construction Division.

Item 6(b)(1) is for the final adoption of amendments to Section 9.2 of the Texas Administrative Code. Section 9.2 outlines the Department's process for the informal resolution of a claim for a highway construction or consultant contract. Changes to the rule include: providing more detail on the composition of the committee; adding that a claim may be filed with the claim committee in the Construction Division, as well as the district or division in charge of the contract; and disallow the admissibility of communications and documentation prepared by the Department's staff in connection with the analysis of the claim.

It further requires the executive director to give reason for vacating or modifying an administrative judge's ruling in a formal administrative hearing.

These amendments were first proposed in the September Commission meeting and were published in the October 9 issue of the Texas Register. And we received one letter from the AGC with two comments.

The first comment from the AGC was that they had concerns about Item 7, where it states that communication reports and other written documents prepared during a claim are not admissible. And our response to that is that we feel this is an informal claims process and it's our attempt to resolve the claim without litigation, and attempts to settle a claim are generally considered privileged.

Further, Item 7, as stated, proposes that it allows a more open communication with the contractor in our attempt to settle the claim in that informal process.

The second comment had to do with the order of the items and was non-substantive in nature.

These amendments are necessary in order to comply with the 75th Legislative Session changes to the Transportation Code and to ensure fair and expeditious handling of contract claims. Staff recommends adoption of the amendments as proposed.

MR. LANEY: Any questions?

MR. NICHOLS: No questions.

MR. LANEY: I've got one comment; it's minor. It relates to the second AGC comment about the ordering of paragraphs 6 and 7. I agree it's non-substantive, but I also agree from their standpoint, conceptually it makes more sense to lay them out in the order that they sort of conceptually arise. Is there a way we can reverse the order of those two?

MR. BOHUSLAV: We can do that.

MR. LANEY: I just think it makes it a little bit more readable without kind of creating havoc and having to go back out -- I don't want to do that, but if we can reverse those two.

MR. BOHUSLAV: I did look at it, and we can do that. Yes.

MR. LANEY: All right. Why don't we do that, if we can.

MR. BOHUSLAV: Okay.

MR. LANEY: With that change, which is non-substantive, as you say, I second the motion. All in favor?

(A chorus of ayes.)

MR. LANEY: Thanks, Thomas.

MR. HEALD: Thank you, Thomas.

I might add, Commissioners, this settlement of the contract claims is very successful. I think Mike, in his chairmanship and his committee, did a great job. And you're kind of catching up, I think, aren't you, Mike?

MR. BEHRENS: Trying to.

MR. HEALD: 6(b)(2), Tom Newbern.

MR. NEWBERN: My name is Tom Newbern, Traffic Operation Division Director.

Agenda Item 6(b)(2) concerns the final adoption of amendments to Section 25.1 concerning uniform traffic control devices. This will incorporate the revisions to the Texas Manual on Uniform Traffic Devices for left lane passing signs. We received no public comments on the amendment, and staff recommends approval.

MR. LANEY: Can I have a motion?

MR. NICHOLS: I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. HEALD: Item 6(c), Rule Review, Tom.

MR. NEWBERN: For the record, Tom Newbern, Traffic Operations Division Director.

This minute order is required by Section 167, Article IX, of the General Appropriations Bill to review the various rules the Department has, and this minute order provides for the review of rules under the responsibility of the Traffic Operations Division in Chapters 22 and 25 of the Texas Administrative Code.

The review will be conducted during January, and we recommend approval of this minute order to initiate that review.

MR. LANEY: Any questions?

MR. NICHOLS: No questions. I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. HEALD: Item Number 7 under Public Transportation, I think we've got two minute orders for your consideration. Margot.

MS. MASSEY: Good morning. I'm Margot Massey, the Interim Director of Public Transportation.

Item 7(a) is requesting an update of our authorization from you to apply for various Federal Transit Administration Grant funds. We had a similar minute order passed to address ISTEA, and this is addressing the provisions of our new federal authorization, TEA-21.

Of particular note is a companion program to what Mr. Luedecke was talking about. We have the Access to Jobs Program, which is on roughly the same timetable, except our federal application is due December 31, and we found out about it at roughly the same time, so we've been scurrying about. And this will allow us to submit that application to the Federal Transit Administration.

We will then bring projects back to you for contracting authority once federal selection is made, and we recommend approval of this.

MR. LANEY: Any questions?

MR. NICHOLS: So moved.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MS. MASSEY: Item 7(b) is our program of projects for fiscal year '99 on the Elderly and Disabled Transportation Provider Program, the Section 5310 program. We have solicited projects through the district offices, and the proposed selection is provided. We have included in this the fiscal year '99 apportionment of $3.5 million plus just over half a million dollars of de-obligations from previous years programs. We recommend approval on this.

MR. LANEY: Any questions about this, Robert?

MR. NICHOLS: No questions.

MR. LANEY: Can I have a motion?

MR. NICHOLS: I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. LANEY: Thanks, Margot.

MR. HEALD: Item Number 8, Frank Smith, SIB Loan.

MR. SMITH: Chairman Laney, Commissioner Nichols. I'm Frank Smith; I'm the Director of Finance.

Item 8 is a request from Hall County for a State Infrastructure Bank loan in the amount of $46,625, and an additional amount that's not to exceed 20 percent of this original loan. This additional amount would be a contingency that would cover the cost of construction if it goes above what we expect the bids to come in.

The loan is to replace -- it would be their portion or their participation in construction in replacing three off-system bridge projects. The terms of the loan are recommended to be a six-year payback at 4 percent, and these terms are very much in accordance with what we have loaned in similar cases.

Hall County is listed as an economically disadvantaged county. Staff does recommend approval of this loan.

MR. LANEY: Frank, thanks for mentioning the terms; they're not mentioned in the minute order. And going forward, I think we probably ought to mention the terms in the minute order, but you don't need to change the minute order for this one, I think, as long as you stated them.

Any questions?

MR. NICHOLS: Just a comment. I think this may be one of the first ones we have a contingency. I may not be sure about that.

MR. SMITH: It is, and it resulted from one of the previous loans that we made where the county, another economically disadvantaged county, had to come back in and ask for a loan.

MR. NICHOLS: I just wanted to comment that I think that's very appropriate and a good way to do that, because we do not know, especially when we have the terms, interest in the project identified, because we don't know and neither does the county. So I think that is appropriate, and with that comment, I'll move we accept it.

MR. LANEY: At what point will we know whether there's use of the contingency or any portion of the contingency?

MR. SMITH: We would come back in the monthly report that we furnish the Commission, and that will be noted in there, or we could take some other measure, if you would prefer.

MR. LANEY: No. I don't think there's any need to. I'd just like to know at some point how much it is.

We have a motion; I second it. All in favor?

(A chorus of ayes.)

MR. HEALD: Item 9, award or rejection of contracts, Thomas Bohuslav.

MR. BOHUSLAV: Good morning, Commissioners. My name is Thomas Bohuslav, the Director of the Construction Division.

Item 9(a)(1) is for the consideration of award or rejection of the building construction contracts let on December 3, 1998. We had two projects with ten bids; an average of five bids per project. The total low bid amount was $2,203,974, or a 23 percent overrun.

We have one project we recommend for rejection. That project was in Hill County for the construction of an area engineer and maintenance facility and site improvements in the Waco District there. We received three bids, the low bid being from T&T Construction, Inc., in the amount of $1,979,700, or a 29 percent overrun, and this is excessive and it's going to really hurt our budget in that area. And the facilities would like to go back and redesign, and we'd like to see if we could get better competition for the project as well. We recommend that project be rejected, and we recommend the other project be awarded.

MR. LANEY: Any questions?

MR. NICHOLS: No questions. I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. BOHUSLAV: Item 9(a)(2) is for the consideration of award or rejection of highway maintenance contracts let on December 8 and 9 whose engineers' estimate costs are $300,000 or more, as shown in Exhibit A. A total of five projects let; we received 14 bids, for an average of 2.8 bids per project. The total low bid amount was $2,648,047.25, or a 6.92 percent underrun. Staff recommends award of all maintenance contracts.

MR. LANEY: Any questions?

MR. NICHOLS: No questions. I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. BOHUSLAV: Item 9(a)(3) is for the consideration of award or rejection of highway construction contracts let on December 8 and 9, as shown on Exhibit A. Total number of projects let were 59; we received 231 bids, for an average of 3.92 bids per project. The total low bid amount was $194,870,309.54, for about a 7.14 percent overrun.

We have one project we recommend for rejection in Culberson County; it's Project Number 3013 on the top of page 3. We received one bid from A&G Eberhardt Enterprises, Inc., in the amount of $469,941.21, or a 34.3 percent overrun. Since we received only one bid on this project, we didn't feel we had adequate competition, and we'd like to go back and relet the project. And staff recommends award of all the projects with the exception noted.

Do you have any questions?

MR. LANEY: Yes. I've got a question. On page 7, the second project, San Angelo project, how did you get comfortable with that project: one bidder and a 32 percent overrun?

MR. BOHUSLAV: That's in Irion County. It's a landscape project; we received the one bid on the project at 32 percent overrun. The district had commented that this overrun is attributed to heavy construction activity encountered in the area, and it's primarily attributed to a concrete curb and gutter item. And their bid price was underestimated for the proposed small plant quantity amount, and based on that, they felt like the bid was appropriate.

MR. LANEY: You're comfortable with that?

MR. BOHUSLAV: Yes.

MR. LANEY: All right.

Any questions, Robert?

MR. NICHOLS: No. I had already gotten my questions answered.

MR. LANEY: Can I have a motion?

MR. NICHOLS: I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. HEALD: Item 9(b), payment for a couple of contract claims, Mike Behrens.

MR. BEHRENS: We have two claim settlements for your consideration. The first was for Viking Construction on Project NH 97(40) in Bell County. The contractor submitted a claim for $78,035.14. After consideration and the Claims Committee met, we offered a settlement of $60,000. This was accepted by Viking Construction by letter November 20, 1998.

The second was in Garza County, the contractor was Gilbert Texas Construction; Project CSR 53-06-023. They filed a claim in the amount of $791,292. The Claims Committee met and offered a settlement of $300,000; this was accepted by the contractor by letter of November 23, 1998.

We recommend approval of both minute orders.

MR. LANEY: Questions, Robert?

MR. NICHOLS: No questions.

MR. LANEY: Can I have a motion?

MR. NICHOLS: So moved.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. HEALD: Item Number 10, I'll handle. I'll just go till you stop me.

Item 10(a) Speed Zones - Establish or alter regulatory or construction speed zones on various sections of highways in the state.

Item 10(b), Load Restrictions - Revisions of load restrictions on various roads and bridges on the state highway system.

Item 10(c), Various Counties: US 59 from the Liberty/San Jacinto County line to the US 259/US 59 intersection - designate as a controlled access facility.

Item 10(d), under Right of Way Disposition, Purchase and Lease, consider the sale of a tract of surplus right of way to the abutting landowner in Grayson County on State Highway 91 at Frisco Road in Sherman.

10(d)(2), consider the sale of a tract of surplus right of way to the abutting landowner on IH 45 at Airtex Boulevard in Harris County.

Item 10(e), Routine Minute Orders, Eminent Domain: El Paso County, FM 1281, request for eminent domain proceedings

10(e)(2), request for eminent domain proceedings on noncontrolled and controlled access highways, as attached.

I believe that's it, Mr. Chairman.

MR. LANEY: Do you have any questions, Robert?

MR. NICHOLS: No questions, just a comment. It's my understanding that on the Item 10(c), the designation of a controlled access facility on 59 for an extended portion, there will be a series of public hearings along the routes and the communities or counties of those areas. That is correct?

MR. HEALD: Yes.

MR. NICHOLS: Other than that, I had no questions.

MR. LANEY: Can I have a motion?

MR. NICHOLS: I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. HEALD: I don't believe we have any need for an Executive Session.

And Open Comment Period, we have some speakers.

MR. LANEY: We now move into the Open Comment Period. The first speaker is Mr. John Nau, Chairman of the Texas Historical Commission.

Mr. Nau, welcome.

MR. NAU: Thank you, Chairman Laney, Commissioner Nichols. I'm John Nau, Chairman of the Texas Historical Commission, and I'm from Houston.

The Texas Historical Commission, which is the state agency for historic preservation, appreciates this opportunity to provide comment on the Texas Department of Transportation's proposed rules regarding the Statewide Transportation Enhancement Program.

We are pleased that the U.S. Congress has affirmed the success of the Transportation Enhancement Program that it first created in 1991 by passage of the 1998 Federal Transportation legislation known as TEA-21. In particular, as preservationists, we are gratified that the Congress again included, and even expanded, historic preservation projects in its list of eligible enhancement activities.

We believe it is important that Congress' intent for the enhancement program be mirrored in our state's implementation of that program. The Texas Historical Commission is concerned, however, that the Texas Department of Transportation's rules for implementation of TEA-21 enhancements in Texas will severely curtail the use of these enhancement monies for historic preservation projects, which would not be an accurate reflection of the Congressional intent. Historic preservation projects should not be judged on a higher standard than the other enhancement activities of this program.

First, we would point out in Section 11.204, the selection of projects for funding, (b)(1)(B), the proposed rules eliminate potential benefit from the evaluation of these eligible projects, leaving only function and impact as evaluation criteria. We would recommend that potential benefit be restored to the rules for selection of these projects.

The reason, during the past six years, the ISTEA program provided some $40 million in historic preservation matching fund for projects all across Texas. Incredible local initiatives, made possible through this particular program, included: restoration of the Southern Pacific Railroad Depot in Edinburg, the Texas and Pacific Depot in Marshall, relaying brick streets in Nacogdoches, and refurbishing the Texas State Cemetery here in Austin.

These projects, and many more, have had economic, cultural, and social benefits in their particular communities. Many may not have been eligible for funding without potential benefit as a criteria for the evaluation.

Secondly, we are concerned with the removal of the word "proximity" from 11.202, project eligibility (a)(1). We would request that the word "proximity" be reinstated to this rule. The reason: under ISTEA, historic preservation projects were eligible to receive funding due to their proximity to the transportation system. We are concerned that the courthouses and other historic features of our state that are adjacent to a state highway but not on a state highway will no longer be eligible for funding if the word "proximity" is removed.

Third, in Section 11.200, TxDOT proposes to fund only those transportation enhancement activities that provide a safe, effective, and efficient movement of people and goods. In our view, this language severely limits the types of enhancement projects that will be funded. Enhancement projects in Texas should not be limited only to activities that directly contribute to the movement of people and goods, but they should enhance the movement of people and goods.

Finally, I would like to clarify for the record a point of confusion regarding National Register eligibility for historic preservation projects. While the explanation in the preamble regarding proposed amendments to Section 11.203 states that preservation projects must be currently listed in the National Register of Historic Places, the rule itself, Section 11.203(c)(1)(N) allows for the acquisition, restoration, and rehabilitation of historic sites or property, either currently listed or eligible for listing in the National Register.

We want to go on record supporting the rule as printed which says that both listed as well as eligible properties may be nominated for TEA-21 funds.

Congressional intent for this program was that it finance activities that would strengthen the cultural, aesthetic, and environmental aspects of the intermodal transportation system. These kind of projects should not be limited to ones that directly contribute to the movement of people and goods. While some do, others have as their purpose enhancing the benefits of communities and landscapes through which our transportation systems pass. Many types of preservation projects can embody a relationship to transportation, such as the restoration of historic facades or the preservation of historic properties along a main street that help promote tourism and economic revitalization.

Our commission is greatly focused on the benefits of heritage tourism and economic development and are working with members of your staff on heritage tourism trail maps in order to encourage this type of revitalization. Historic preservation projects help transform transportation routes into attractive and efficient connections between Texas' special places.

People in Texas need places to go, not just ways to get there. We need to ensure that TEA-21 enhancement funds help provide that opportunity.

Thank you very much for the opportunity to comment.

MR. LANEY: Thank you, Mr. Nau. Appreciate it very much.

Jane Barnhill, also Texas Historical Commission.

MS. BARNHILL: Good morning. I'm Jane Barnhill, Texas Historical Commission. I live in Brenham. You're supposed to smile when you hear that.

Hearing your opening statements about the fires and the floods and the accidents and all that, it tells me I am on the right commission and you're on the right commission. I'm a rookie at coming and speaking before such an auspicious group, but I'm also not a rookie at driving. I'm a really good customer at driving.

I've been on most of the highways that you've mentioned this morning, and mostly I have the windows down and the radio up, and that's the way I enjoy the driving experience. Every day I drive out my driveway onto a gravel road, come into a state highway, then get on the highway and end up on a freeway someplace, so I see the evolution of our highways from my garage on out.

I like the blending of my two favorite interests: the driving experience and history. It's really hard for me to separate driving and the highways from the landscape and what we see. In my opinion, everything we see is the driving experience.

I don't know if you've ever been on that wonderful little 1936 concrete, two-lane highway that goes into Washington-on-the Brazos, and it says a lot for what I hope that we will be able to bring our Texas tourists, our heritage tourists, and have them experience this wonderful driving time on these wonderful roads that take you not only past wonderful things but to wonderful things.

We all agree that this Texas Heritage Tourism project is going to be a huge economic plus. I'm glad our chairman alluded to the wonderful Texas Travel Trails that you all had 30 years ago, and we hope to revitalize that and use that again for our tourists to Texas.

When I got my handy-dandy TEA-21 user guide booklet, I realized that it looks as though someone is trying to simplify and put a friendly face on this project, and I think simplification can be achieved by a more efficient approach to things.

And one of the things I feel like we probably do -- growing up in East Texas, we learned early: to look across the state and see what the rest of the state is doing and how they're achieving what they're trying to do. And I think that that is a lesson that probably can be learned from our state agency, is to look around the United States and see what other states are doing. And other states have come up with some rather creative ways to utilize and implement this enhancement dollar that goes into historic preservation.

Our Historical Commission staff members can get you some of that information, if you don't already have it, but it's a very user-friendly, easy way -- not easy, nothing's easy about any of this -- but I think it can help us get to where we want to be.

One of the things that has appeared apparent to me is that you'll have your experts, your bridge engineers trying to restore an old depot. Well, that's, I think, asking him to do something, maybe, that he is not as well equipped to do as some people on the Historical Commission staff who welcome that kind of opportunity to offer help in that kind of opportunity. If we can become more efficient, I think we'll be really -- it'll be good for the state of Texas.

I guess, in short what I'm trying to say is you guys handle the fires and the floods and the car wrecks, and call on us to help you out on some of this historic preservation, which we'll be glad to do. Merry Christmas.

MR. LANEY: Thank you, Ms. Barnhill. Appreciate it.

Jane Jenkins, National Trust for Historic Preservation.

MS. JENKINS: Good morning, Chairman Laney and Commissioner Nichols. I'm Jane Jenkins, and I'm the Director of the southwest office of the National Trust for Historic Preservation.

The National Trust provides leadership, education, and advocacy to save America's historic places and to revitalize communities. We have 300,000 members nationwide, and today I represent over 12,000 members in Texas.

The National Trust is pleased to comment on the proposed rule changes to the enhancements programs in TEA-21, and we really appreciate the extension of the comment period to allow us to notify our constituency about these very important proposed rule changes. We are also appreciative of the willingness of the commissioners to give serious considerations to our concerns and explore creative ways to administer these enhancement dollars.

I believe that the National Trust has already gone on record, both at the December 7 public hearing and by letter, regarding our specific concerns about how the proposed rule changes will potentially impact historic preservation projects across the state, and I believe that Chairman Nau specifically outlined what those concerns were in his presentation.

The eligibility rules for enhancement activities in Texas should be applied uniformly. Since Congress defined enhancements as activities that enhance the community benefits of transportation investments, Texas should not place additional burdens on historic preservation enhancement proposals. Historic preservation projects in Texas help transform transportation routes into attractive and efficient connections between our state's historic places.

The National Trust would ask you again to give serious considerations to our concerns. With your help, the enhancements programs under TEA-21 can carry historic preservation activities in Texas well into the next century. Thank you for your time.

MR. LANEY: Thank you, Ms. Jenkins.

Kate Singleton, community development consultant.

MS. SINGLETON: Good morning. My name is Kate Singleton. I'm from Dallas, but I work in Plano, Dallas, and Quanah, Fort Worth, and a lot of other communities across the state of Texas. My specialties are downtown revitalization. I will say, as Jane Jenkins is, I'm a former Main Street manager here in Texas, Waxahachie, and Grapevine, and I work with a lot of small communities, and that's what I'm here to speak about.

I'm really glad that you view TEA-21 as a success. I mean, I think we all went to the federal government and said, This is something we really need for the communities. It's been discussed extensively at the National Trust conference in Savannah, and this week at the Smart Growth conference which was held here in Austin, which is actually still going on.

I think what concerns me is what you have proposed for the regulations. I'm a little concerned that a lot of the communities that have used this money in the past will not be able to access it, or similar communities will not be able to access this money in the future, and that is of great concern to me, because they come to me and say: Well, National Register nomination; now what do we do, where do we find the funds to do some of the things we need to do? And I go: Oh, TEA-21, what a great thing.

You know, towns that can't use Community Development Block Grants for historic preservation projects, what's the next level of funding they look to? TEA-21, and I think that's very important to remember.

These funds are called enhancements funds and that's what they should be allowed to do: enhance the communities. The types of projects that TEA-21 funds will add value to the communities, enhance the local economy and the travel experience. TEA-21 funds, again, are one of the few places where you can get bricks-and-mortar funding anymore. A lot of the money has dried up; it's not available from the federal government anymore, and this is one of the few pots left, and it's left for small communities. Like I say, they're kind of my specialty; I work with a lot of small towns.

This money helps them to maintain their history, it helps them -- and this is a history, remember, here in Texas that is linked to transportation from Indian trails to cattle trails to railroads to highways, and I think that's important.

You know, the good projects that we think of, like the Hill County Courthouse that had that disastrous fire, but it's now rebuilt, would never have gotten rebuilt without TEA-21 funds, or what we call the old ISTEA money. We all know that -- you're nodding yes; we all know that. We don't want to lose projects like that; it's very important for us to be able to have access to that money to help these communities.

I hope that you will think about this. And remember, also, like in Dallas it funded money to work on some of the buildings in Fair Park. And the other day Terry Hodge -- who is one of the state reps from Dallas and is also on the Friends of Fair Park Board -- expressed a great deal of concern that this money might not be available to continue working on projects like Fair Park, which is owned by the City of Dallas and in dire need, always, of being fixed up, but is one of the two art deco -- you know, Miami has one of the art deco historic districts and Dallas has the second one. So, I mean, it's a national treasure. It's listed as a national historic landmark, which is one step above being listed on the National Register.

So it's very important, and she was very concerned, and I think other state reps will be concerned too, because their communities won't be able to access this money if these regulations go in, because they might not fit that little, you know, having a direct relation, function or impact to the state's surface transportation system. And that's what I think we're all worried about is the verbiage there gets a little bit onerous, and some of these smaller communities will just go: No, we're not even going to try.

That's what concerns me. I don't want to see the beautiful C.H. Paige & Brothers, the QA&P Depot in Quanah, Texas, be destroyed because there's no money, yet TEA-21 money, they could apply for it and it would be a perfect project. So I ask for the small towns across Texas: please reconsider the verbiage in there. Please be creative. Let's think out of the box a little bit. Smart Growth, they've been telling us to think out of the box all week, so I'm there.

So, you know, please think about the impact that these activities could have, not on Dallas and Fort Worth, but on the smaller towns, because I think that's important for us, too. And you know, you heard from the lady from Brenham and you're discussing highways in the smaller communities across the state, and I think it's important. There's no reason to go to those towns if there's no there there.

Thank you very much for your time. Have a Merry Christmas.

MR. LANEY: Thanks, Ms. Singleton. Appreciate the comments.

Mr. Ray Barnhart.

MR. BARNHART: I guess I will appear to be Scrooge during this Merry Christmas.

MR. LANEY: Or at least someone in need of his own historical preservation.

(General laughter.)

MR. BARNHART: As an old Eagle Scout, I think very highly of historic preservation. I think highly of our Texas constitution as well, and while I see a need for preservation and some of what we have done in the name of enhancements in years past, I believe this Agency has been in violation of our state constitution, and I think that what some of the folks from the historic preservation groups would like would violate our constitution, and the use of the money, highway taxes, that are constitutionally dedicated.

At a time when the Department says it can fund only 34 percent of already identified needs, when we have the promise of ISTEA, of all this additional money that requires state match, this Agency is in terrible shape to provide that match for the realization of all of our transportation money. Therefore, we've got to recover wherever we can; therefore, we have to be prudent in how we use that money, and I think, adhere to the constitution.

It appalled me that in recent years we've committed almost $200 million of highway taxes, constitutionally dedicated highway taxes, to quote, enhancements of painting courthouses, restoring old missions, even that magnificent recovery of the artifacts from the sunken ship out in Matagorda Bay utilized constitutionally dedicated highway taxes. Absolutely appalling.

So while the Congress may authorize something, I think we have a responsibility -- and I'm sure you gentlemen recognize that -- to restrict ourselves in accordance with that constitutional constraint. Any enhancement, I think they're lovely, they're great for small towns, but I think they must absolutely be impacted by transportation and not simply because we like them. If they are of that value, then I think we should raise money for them specifically, but not ignore the legal constraints.

I would urge you not to change your minds, and as a matter of fact, to even tighten up on your definitions. Thank you very much.

MR. LANEY: Thank you, Mr. Barnhart.

Arnold Oliver.

MR. OLIVER: Good morning, Commissioners. My name is Arnold Oliver. I'm here this morning representing myself on this item. I have listened to the comments dealing with enhancement projects. I agree with Mr. Barnhart.

I am not against historical preservation in any sense of the word; in fact, I wholeheartedly support it. A close examination of the constitution, Mr. Barnhart mentioned, however, will tell you that in Article 8, Section 7(a), contains what is commonly called in Texas the Good Roads Amendment. That amendment states that the funds constitutionally dedicated from motor fuels taxes and registration fees shall be spent for solely four purposes.

Now, I know that, not being a lawyer, words sometimes mean whatever the most convincing lawyer wants them to mean, and I don't know how you might parse the word "solely," but it says that these funds will be used solely for the purpose of right of way, construction, maintenance, and policing of the public roadways. And I don't see in any of those definitions where you could construe that to mean historic preservation.

ISTEA and TEA-21 said that a state shall spend 10 percent of their STP monies on enhancement projects. ISTEA had ten categories; I believe TEA-21 has 14. It says you may spend that 10 percent on those. You have to spend 10 percent on enhancement; that's mandatory. But you may spend it on any of those categories. And I do not believe that historical preservation of cemeteries, theaters, jails, courthouses, railroad depots, and those things qualify for the constitutional dedication that the state constitution has.

In 1988, the question was raised as what happens to federal reimbursement funds which come back from the Federal Highway Trust Fund to the state. It was put on the ballot as a constitutional amendment, it passed statewide by a winning margin of 89 percent, which says that any reimbursement from the Federal Highway Trust Fund which comes back to Texas in a way of reimbursement obtains the same dedication as Section 7(a) of Article 8 of the constitution.

The enhancement program is a reimbursement project. There may be no state funds put up for match, they may be all local funds, but it is a reimbursement project, and under that situation, I don't feel that historical preservation projects qualify under the constitution.

It's also my understanding that in the hierarchy of laws, although federal legislation permits it, federal legislation does not overturn a state constitution, and legislation in the state does not supersede the state constitution.

So I wholeheartedly endorse the wording that you currently have for the selection of enhancement projects, and encourage you to stay by that wording. Thank you very much.

MR. LANEY: Mr. Arnold, before you leave, let me ask you a question. You named a number of projects you don't think qualify. What kind of projects do you think qualify?

MR. OLIVER: I think in the list of categories there are wetlands mitigations, purchase of scenic easements -- which we've done -- there's the ability to purchase and preserve railroad right of ways. I don't think that it would be much of a stretch for hike-and-bike trails. I don't know how you would define the term "public roadways." I think you could logically define a bike trail as a roadway, public roadway. It doesn't say highways, it says public roadways.

And so depending on how you might interpret these different words, but there are several categories that I feel these monies could be legitimately spent, but I do not feel that historical preservation is one of those categories which were set out in the four reasons that the constitution says we can use those funds which is: purchase of right of way, construction, maintenance, and policing of the public roadways.

MR. LANEY: Have you had this conversation with the Department of Public Safety?

MR. OLIVER: With the Department of Public Safety? No, sir.

(General laughter.)

MR. NICHOLS: In the list that you rattled off --

MR. OLIVER: But it's there, Commissioner.

MR. NICHOLS: In the list that you were rattling off of what you felt were, according to your interpretation of the constitution, was landscaping also in there, landscaping on the roadways?

MR. OLIVER: Yes.

MR. NICHOLS: Is inclusive. Okay. You did not list that in your list.

MR. OLIVER: But I think is an eligible category, because we do that already, and have been doing it for a number of years.

MR. NICHOLS: That's all I have.

MR. OLIVER: Those are projects that are part of the construction of the roadway, as we normally construct them, but it's not historical preservation.

MR. LANEY: Thank you, Mr. Oliver. Appreciate it very much.

MR. OLIVER: Thank you.

MR. LANEY: I don't know if Ms. Barnhill is still here -- I don't want you to come back up -- but before you leave, I would like to see your simplified booklet on TEA-21, which I've never seen before, and I'd like to see it.

More business? Do you have anything to add?

MR. NICHOLS: No.

MR. LANEY: Let me just reiterate again what I said at the outset. I know a lot of you will be driving -- there's no need for an executive session, so we won't be going into executive session. A lot of you will be driving during the holiday season; be very, very careful, please. And we wish you all a safe and a very happy holiday season.

And if there's no further business before the Commission, I'll entertain a motion to adjourn.

MR. NICHOLS: I so move.

MR. LANEY: Second. All in favor?

(A chorus of ayes.)

MR. LANEY: Thank you. We are adjourned.

(Whereupon, at 10:50 a.m., the meeting was concluded.)

C E R T I F I C A T E

MEETING OF: Texas Transportation Commission

LOCATION: Austin, Texas

DATE: December 17, 1998

I do hereby certify that the foregoing pages, numbers 1 through 77, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Peggy Bynum before the Texas Department of Transportation.

 12/22/98

(Transcriber) (Date)

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