TxDOT agreed to ensure that no commitment to any alternative evaluated during the NEPA review process would be made prior to the completion of the NEPA review process. TxDOT also agreed to allow all alternatives presented in the NEPA document, including the no-build alternative, would be equally evaluated.

Through the use of a CDA TxDOT has narrowly defined the project. In accordance with the Request for Detailed Proposals for TTC-35 TxDOT exercised an inflexible control over the Conceptual Facility Design to the exclusion of all alternatives other than the singular designated facility design. In conformance with the Crossroads of the Americas: Trans Texas Corridor Plan (Implementation Plan) the only acceptable configuration (with limited exception) is a 1,200-foot wide corridor containing certain predefined facilities.

As a result TxDOT has improperly limited the range of reasonable alternatives evaluated during the NEPA review process and did so prior to completion of the NEPA review process. All twelve of the build alternatives presented in the DEIS are an identical grouping of facilities varied only by placement in various geographical locations. By limiting the range of alternatives effectively to a single build alternative TxDOT failed to allow other alternatives to be equally evaluated. These actions are in violation of the terms of the July 11, 2005, TTC-35 Early Development Agreement (EDA) [4.1 C (iii)].

The result of TxDOT’s control in limiting is evidenced in the Tier One DEIS process that discarded all proposed alternatives except those suitable for a 1,200-foot ROW and the required no-build alternative. Although additional alternatives may be raised for consideration as the result of the current DEIS comment period, those alternatives will be evaluated against the same narrowly defined CDA criteria that excluded them during the original review. Therefore we can expect the outcome to remain the same.

FWHA requires TxDOT to ensure that no decision regarding a preferred alternative is made before all necessary environmental impact information is available for review and comment by both the decision-makers and the general public.

A Conceptual Development Plan (CDP) was provided as Exhibit B of the CDA executed between Cintra Zachry LP and TxDOT on March 11, 2005. The CDP addresses a range of parameters and assumptions that include the anticipated effect, impacts and implications of implementing the plan. TxDOT has had possession of the CDP for more than a year. Disclosure of environmental impact information contained in the CDP is necessary and required for proper NEPA decision making. Despite the critical nature of that information TxDOT has never publicly disclosed the CDP. Although TxDOT has offered a business reason for keeping the CDP confidential, TxDOT does not have the authority to use the CDA to act in direct conflict with the purpose of 23 C.F.R. 636.109. By concealing the CDP from public officials, decision-makers, and citizens, TxDOT and the Proposer have conspired to circumvent the purpose of 23 C.F.R. 636.109.

Although additional alternatives may be raised for consideration as the result of the DEIS comment period, those alternatives will be evaluated against the CDP, the contents of which continue to be concealed, and the outcome of that review will surely follow the same path that excluded alternatives in the original review.

The purpose of 23 C.F.R. 636.109 is to ensure that there is an unbiased NEPA decision-making process. Its purpose includes ensuring that public officials and citizens have the necessary environmental impact information before actions are taken.

TxDOT reached a decision regarding a preferred alternative without all necessary environmental impact information being made available for review and comment by the decision-makers and the general public. Such failure to disclose available environmental impact information constitutes a violation of the terms of the EDA [4.1 C (iv)] and is a clear violation of NEPA.

To ensure that the purposes of 23 C.F.R. 636.109 are protected the FHWA maintains direction and control of the NEPA process and is solely responsible for project approval process under NEPA.

The SEP-15 experimental features now incorporated into the EDA were intended to facilitate innovative finance and provide for more efficient and timely project development. We do not believe it was the intended purpose of the SEP-15 experimental features to circumvent regulations established under NEPA nor was the EDA to provide TxDOT with an all-inclusive exception to 23 C.F.R. 636.109.

The TTC-35 EDA between the FHWA and TxDOT provides that approval of any or all of the SEP-15 experimental features may be withdrawn at any time if the FHWA determines that the experimental features are not in the public interest.

The FHWA is now called upon to recognize that TxDOT actions under the EDA are not in the public interest. To the full extent that TxDOT has improperly used SEP-15 experimental features, such features should be withdrawn by FHWA under the terms set forth in the EDA.

We ask that TxDOT be instructed to fully and publicly disclose all environmental impact information that they have in their possession including specifically Exhibit B (CDP) of the CDA with Cintra Zachry LP; that they reconsider all known alternatives not withstanding the current limitations of the CDA/CDP and underlying Implementation Plan; and, that following FHWA approval of a revised Tier One DEIS TxDOT be instructed to repeat the entire Tier One public hearing process anew to afford the public and decision-makers an opportunity to accomplish meaningful analysis with newly disclosed information and additional alternatives.

Respectfully submitted,