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Case 4:21-cv-00805 Document 1 Filed on 03/11/21 in TXSD Page 1 of 32
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`
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`CIVIL ACTION NO. 4:21-cv-00805
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`
`
`HARRIS COUNTY, TEXAS
`Plaintiff
`
`vs.
`
`TEXAS DEPARTMENT OF
`TRANSPORTATION; AND JAMES M.
`BASS, IN HIS OFFICIAL CAPACITY
`AS EXECUTIVE DIRECTOR OF THE
`TEXAS DEPARTMENT OF
`TRANSPORTATION
`Defendants
`
`
`
`
`
`
`
`ORIGINAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`1.
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`Harris County, Texas (“Harris County” or “the County”) brings this civil action
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`against the Texas Department of Transportation (“TxDOT”), and James M. Bass, in his official
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`capacity as its Executive Director, for declaratory and injunctive relief pursuant to the provisions of
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`the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, and the National Environmental
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`Policy Act (“NEPA”), 42 U.S.C. § 4321 et. seq. and its implementing regulations, and Section 4(f) of
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`the Department of Transportation Act, 49 U.S.C. § 303 (“§ 4(f)”).
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`2.
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`This litigation arises from the Defendants’ decisions to expand and widen Interstate
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`Highway 45 (“I-45”), from south of downtown Houston north to Beltway 8, to remove the Pierce
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`Elevated section of I-45, and to re-route I-45 to the east and north of downtown, together named
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`the North Houston Highway Improvement Project (“NHHIP” or “the Project”).
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`3.
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`Harris County files this lawsuit to challenge the actions of TxDOT—a state
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`agency—and its officials in adopting a design and plan that ignored serious harms, disregarded the
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`concerns of the communities impacted by the Project, and brushed off the numerous comments
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`they received as part of their flawed EIS process. The Defendants had already made their mind
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`about what they were going to do and then simply did it, running roughshod over the procedural
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`requirements of NEPA, the substantive law of Section 4(f) and the APA’s constraint on arbitrary
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`and capricious decision-making.
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`4.
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`Harris County files this lawsuit because the NHHIP must be more carefully
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`considered and designed to meet the diverse needs of the region’s future, reflect the changing
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`circumstances of altered work patterns and new transit initiatives, learn from the regions’ past
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`experience that wider freeways cause more traffic, not less, and without unnecessarily displacing
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`hundreds of families and businesses.
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`5.
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`Harris County recognizes that transportation projects are essential to the region, but
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`also maintains that it is time to re-imagine the traditional highway expansion projects in a way that
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`will benefit everyone by allowing improved mobility for all modes of transportation–including cars,
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`trucks, transit, bicycles, and pedestrians–addressing current safety concerns such as narrow
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`shoulders and short merge lanes, while minimizing the right-of-way taken from people to do so.
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`6.
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`The NHHIP is a once-in-a-generation opportunity to improve our region’s mobility,
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`enhance our region’s image, and advance economic opportunity, while enriching our quality of life
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`and mitigating the worst impacts on low-income and minority neighborhoods from highway
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`construction.
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`7.
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`By filing this lawsuit, Harris County does not seek to cancel or unduly delay the
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`NHHIP because the County readily recognizes that the existing I-45 desperately needs improving.
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`But the NHHIP must be undertaken in accordance with applicable law, including NEPA, § 4(f) and
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`the APA.
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`I.
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`JURISDICTION
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`8.
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`This action arises under NEPA, 42 U.S.C. § 4321 et. seq., and its implementing
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`regulations, particularly those of the Council on Environmental Quality (“CEQ”) found at 40 C.F.R.
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`§ 1500 et seq. as well as those of the Federal Highway Administration (“FHWA”), 23 C.F.R. § 770 et.
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`seq., and under § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. Judicial review is
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`sought pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706. This Court has
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`jurisdiction over the case pursuant to 28 U.S.C. § 1331 (Federal Question Jurisdiction). This Court
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`can grant declaratory and injunctive relief under 28 U.S.C. § 2201 (declaratory judgment), 28 U.S.C.
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`§ 2202 (injunctive relief), and 5 U.S.C. §§ 552, 701–706, for violations of, inter alia, the APA, NEPA,
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`and § 4(f).
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`II.
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`VENUE
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`9.
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`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b), (c)(2) and (e)
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`because the location of the property where the proposed expansion of I-45 is to take place is located
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`within this district, Defendants reside in the district maintaining offices at 7600 Washington Ave,
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`Houston, TX 77007, and Harris County is a governmental entity in this district.
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`III.
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`PARTIES
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`10.
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`Harris County, Texas is a body corporate and politic under the laws of the State of
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`Texas.
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`11.
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`The Texas Department of Transportation is a government agency of the State of
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`Texas and may be served at 125 East 11th Street, Austin, Texas 78701–2483.
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`12.
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`James M. Bass is sued in his official capacity as Executive Director of the Texas
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`Department of Transportation and may be served at 125 East 11th Street, Austin, Texas 78701–
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`2483.
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`IV.
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`STANDING
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`13.
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`Harris County has significant interests at stake in this litigation, and as detailed
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`below, the County has standing to seek redress of the specific concrete injuries it will suffer. The
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`footprint of the NHHIP is entirely within Harris County. The Project will impact Harris County
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`residents, businesses, neighborhoods, property owners, and commuters for generations to come.
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`14.
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`The County Commissioners (members of the County’s five-person legislative body),
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`County staff, and retained consultants devoted countless hours and resources to reviewing the Draft
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`Environmental Impact Statement (“DEIS”) and the Final Environmental Impact Statement
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`(“FEIS”), both of which are documents prepared and issued by TxDOT (required by law) to
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`describe the effects for the NHHIP on the environment. The County submitted comments on the
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`DEIS and the FEIS. The Record of Decision (“ROD”) issued by TxDOT does not adequately
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`address the County’s comments.
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`15.
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`After TxDOT’s release of the DEIS, Harris County and the City of Houston
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`conducted a months-long community and stakeholder engagement to seek the public’s input and
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`ideas for changes to TxDOT’s proposals in the DEIS. This public input resulted in a new vision—
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`which the County and the City submitted to TxDOT—that proposes an alternative way for TxDOT
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`to accomplish many of the safety, flood mitigation, and other benefits of the NHHIP while retaining
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`the freeway’s current footprint as much as possible in Segments 1 and 2 to minimize its impact on
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`existing homes, businesses, and communities. The new vision also provides for improved local
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`connectivity and transit access, including implementing a voter-approved and funded plan for easing
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`traffic congestion, the METRONext Moving Forward Plan.
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`16.
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`The alternative selected in the FEIS/ROD issued by TxDOT will have several
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`adverse impacts on the residents and property of Harris County. For example:
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`•
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`•
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`•
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`It would displace 1,079 residential housing units and 344 businesses, resulting in the
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`loss of significant tax base and revenues to the County.
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`It will impede public access to the downtown Harris County Court complex.
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`Real property owned by Harris County will be taken for additional right-of-way for
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`the Project including, for example, the Harris County employee parking lot on
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`Nance Street.
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`17.
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`Harris County has specific government interests at stake in this litigation including its
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`responsibilities over air quality, water quality, flood control, roadways, and emergency management,
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`among others. For instance, stormwater runoff from the expanded I-45 will increase flows in the
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`bayous and drainage ditches of Harris County, and will carry increased loads of pollutants, both
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`during construction, and after the Project is complete. The Project construction period will likely
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`result in disruption of traffic flows, longer travel times, an increase on local street traffic, and
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`increased air pollution levels along all segments of the expansion and re-routing.
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`18.
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`Harris County Pollution Control Services Department operates to protect the health
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`and welfare of County residents through programs such as those that monitor and protect air
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`quality. Harris County is a designated serious nonattainment area for the Environmental Protection
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`Agency’s (“EPA”) 8-hour ozone 2008 standard, and marginal nonattainment area for the EPA’s 8-
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`hour ozone 2015 standard. This means that the EPA has found that areas in the County do not meet
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`the national primary or secondary ambient air quality standards. Ozone forms at ground level when
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`nitrogen oxides (“NOx”) and volatile organic compounds (“VOC”) combine in the presence of
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`sunlight. NOx is found in car exhaust and VOC enters the atmosphere from evaporated gasoline
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`from vehicles.
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`19.
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`Through the adoption of a resolution on August 11, 2020, Harris County launched
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`its Vision Zero Initiative to reach zero traffic deaths or severe injuries by the year 2030, to be
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`achieved through the work of Harris County Engineering Department (“HCED”) to integrate safe
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`mobility in future transportation plans and projects.
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`20.
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`Harris County oversees emergency management, and I-45 is a major hurricane
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`evacuation route for the entire region. The Project construction period will span many hurricane
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`seasons and may require Harris County to alter its existing evacuation plans.
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`21.
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`Harris County coordinates and participates with other local governmental entities to
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`oversee traffic and transit in the region, including through Houston Transtar and METRO, whose
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`operations will be impacted by the NHHIP.
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`22.
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`Harris County Toll Road Authority operates two toll roads—Beltway 8 and the
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`Hardy Toll Road—that either directly connect to I-45 or are accessed from I-45 via Loop 610.
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`These roads may experience altered traffic volumes during and after construction.
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`23.
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`Harris County collaborates with the City of Houston and the Houston Parks Board
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`to construct, maintain and fund portions of the Bayou Greenways network of hike-and-bike trails
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`and parklands.
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`V.
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`BACKGROUND FACTS
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`The Federal Highway Administration and TxDOT conduct initial studies and
`scoping
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`24.
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`In
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`January 2002, TxDOT’s Houston District
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`initiated a comprehensive
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`transportation study of the area between I-45 and the Hardy Toll Road starting from Downtown
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`Houston and continuing approximately 30 miles northbound towards The Woodlands and SH 242
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`in Montgomery County. The transportation study is referred to as the North-Hardy Planning Study
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`and resulted in TxDOT publishing two Alternatives Analysis Reports in 2003 (one on the highway
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`component), and one in 2004 (on the transit component).
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`25.
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`TxDOT sent a project initiation letter regarding the start of the NHHIP to the
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`Federal Highway Administration (“FHWA”) in October 2006. FHWA became the lead agency for
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`the NHHIP for the purpose of environmental review and NEPA compliance, with TxDOT as the
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`cooperating agency.
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`26.
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`In October 2011, FHWA and TxDOT published the Notice of Intent (“NOI”) to
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`prepare an Environmental Impact Statement (“’EIS”) for the NHHIP in the State and Federal
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`Registers. 76 Fed. Reg. 65775 (Oct. 24, 2011); 36 Tex. Reg. 7043 (Oct. 14, 2011).
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`27.
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`In November 2011, FHWA/TxDOT held the first rounds of Cooperating and
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`Participating Agency Scoping Meetings in which they accepted scoping comments from local
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`agencies and the public. FHWA/TxDOT held three subsequent rounds of scoping meetings with
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`local agencies and with the public between October 2012 and April 2015, accepting comments from
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`these stakeholders.
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`FHWA Delegates NEPA and Section 4(f) duties to TxDOT
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`28.
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`On December 16, 2014, TxDOT took over responsibility for NEPA and Section 4(f)
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`compliance under a Memorandum of Understanding (“MOU”) with the FHWA pursuant to 23
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`U.S.C. § 327(a)(2)(A) and (c). As a result, the same federal environmental and administrative law
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`standards that would otherwise apply to federal agencies—such as FHWA—in this context apply to
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`TxDOT. See id. § 327(a)(2)(C) (“A State shall assume responsibility under this section subject to the
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`same procedural and substantive requirements as would apply if that responsibility were carried out
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`by the Secretary.”). Under the MOU, TxDOT became the lead agency for the NHHIP
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`environmental review and TxDOT explicitly waived Eleventh Amendment immunity and consented
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`to federal court jurisdiction for all the responsibilities undertaken pursuant to the MOU. On
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`December 9, 2019, FHWA and TxDOT renewed the MOU for another five-year period.
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`29.
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`As detailed below, TxDOT has failed to fully comply with the procedural
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`requirements of NEPA’s environmental review, § 4(f) review, the CEQ’s NEPA regulations, and
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`FHWA’s environmental review regulations in ways that significantly impaired the ability of the
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`public to participate and comment during the process. TxDOT has also failed to fully comply with
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`the substantive requirements of NEPA’s environmental review, § 4(f) review, the CEQ’s NEPA
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`regulations, and FHWA’s environmental review regulations in violations of the laws and regulations.
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`TxDOT releases the Draft EIS.
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`30.
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`In April 2017, TxDOT made its DEIS available for public review. TxDOT held two
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`open houses and public hearings in May 2017 to present the DEIS and its (TxDOT’s) proposed
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`recommended alternative (purportedly based on the information gleaned from the DEIS), and to
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`accept written and oral comments from the public. That same month TxDOT held a community
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`meeting. The public comments that TxDOT received about the DEIS were overwhelmingly
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`negative, consisting of 376 negative comments, 68 neutral comments, and only 25 positive
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`comments.
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`31.
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`Harris County Engineering Department joined the public by submitting detailed
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`comments to TxDOT regarding the DEIS on July 2017. The HCED comments identified numerous
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`design, access, connectivity and safety concerns at specific locations. The HCED identified County-
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`owned properties that would be adversely impacted or occupied by the expanded NHHIP right-of-
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`way. The comments also submitted examples of indirect impacts to the Harris County Courthouse
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`and Criminal Justice Complex in north downtown Houston, including reduced access and freeway
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`connectivity. Additionally, HCED identified deficiencies and omissions in the DEIS schematics that
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`impaired the County’s ability to fully understand the impacts from the proposed designs. The
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`HCED commented that an existing hike-bike trail under Interstate Highway 69, which was
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`constructed by Harris County and maintained by the City of Houston, would be eliminated or
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`severely impacted. HCED requested that TxDOT replace it with an off-road hike-bike trail of
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`equivalent access and connectivity.
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`The Draft EIS omits entire categories of environmental impacts.
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`32.
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`FHWA regulations require that a DEIS be signed by the lead agency and then
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`released to the public only when it complies with all NEPA requirements. 23 C.F.R. § 771.123(g)
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`(DEIS must comply with NEPA requirements).
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`33.
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`NEPA, and the FHWA and CEQ regulations clearly contemplate that a DEIS is a
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`single document, which must include any appendices and technical documents at the time of its
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`release to the public for comments.
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`34.
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`In the DEIS, TxDOT failed to include review or adequate discussion of numerous
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`environmental impacts that a DEIS is required to include. TxDOT instead stated that these
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`categories of impacts would be discussed in a series of draft technical reports and analyses to be
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`released at a later date.
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`35.
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`Public comments on the DEIS complained that it omitted numerous important
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`issues, including impacts to Section 4(f) park and historical resources, quantitative noise impacts,
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`visual impacts, community and environmental justice issues, quantitative air quality analysis, and
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`drainage and water resource impacts.
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`36.
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`TxDOT’s DEIS was incomplete at the time of its release, during the comment
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`period, and during the public meetings because it did not contain all the information required by
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`NEPA and FHWA regulations. 40 C.F.R. §1502.9(a); 23 C.F.R. § 771.123(g).
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`37.
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`After the close of the DEIS commenting period, TxDOT released 12 individual
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`technical reports and analyses—listed below—on five separate dates between June 20, 2018 and
`December 19, 2019, with the last one released 32 months after the DEIS was released.
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`38.
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`TxDOT posted these 12 documents to its project website, each with a 30-day
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`comment period. Predictably, TxDOT received significantly fewer public comments on these 12
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`documents. TxDOT cannot cure an incomplete DEIS through the later piecemeal release of the 12
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`draft documents.
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`Harris County and the City of Houston solicit their own community and stakeholder
`input on the NHHIP.
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`39.
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`On August 13, 2019, the Harris County Commissioners Court unanimously adopted
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`a resolution setting nine specific benchmarks for all regionally significant transportation projects in
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`the County and instructing all the branches of the County government to ensure these benchmarks
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`are realized in the NHHIP.
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`40.
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`Beginning in the summer of 2019 and continuing through early 2020, Harris County
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`and the City of Houston held a number of public workshops and meetings and posted an online
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`survey. At these workshops, for 37 specific items, participants were encouraged to comment and
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`state their preference between the preferred alternative design proposed by TxDOT in its DEIS, and
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`a wide range of alternative designs addressing traffic, flooding, property and connectivity issues. The
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`workshops and online survey resulted in 559 public responses.
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`41.
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`For one of the 37 items—managed lane operations—the TxDOT DEIS preferred
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`alternative received 0% support, while the four alternatives suggested by the City of Houston and
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`the County received collectively 100% support. For another of the 37 items—ramps in the
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`Southwest corner of Downtown—the TxDOT DEIS preferred alternative received 28% support.
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`This was the highest level of public support for any of TxDOT’s DEIS preferred alternatives. The
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`results of the workshop and survey, as well as recommendations from the City of Houston and
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`Harris County, were submitted to TxDOT.
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`Voters approve the METRONext Moving Forward Plan.
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`42.
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`On November 5, 2019, Harris County voters in the Metro service area approved the
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`METRONext Moving Forword Plan (“METRONext”). METRONext is a comprehensive plan to
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`improve and/or extend METRO’s transit authority system and ease traffic congestion. It contains
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`the following improvements or expansions:
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`• The creation of METRORapid, a new Bus Rapid Transit (“BRT”). For example, the
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`BRT incorporates a transit route on I-45 to George Bush Intercontinental Airport and
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`Greenspoint.
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`• The improvement of the METRO’s Regional Express Network, which for instance
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`includes two-way HOV lanes on I-45 North.
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`• The construction of METRORail Phase 3 and related parking facilities that connect the
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`Green Line and Purple Line. The combined lines will be extended to William P. Hobby
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`Airport. Additionally, the Green and Purple Lines will be extended to the City of
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`Houston Municipal Courthouse.
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`• The improvements of the Bus Operations Optimized System Treatments (BOOST), the
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`Signature Service and other METRO bus services.
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`• The overall enhancement of the system, involving route improvements, accessibility and
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`usability improvements, and other improvements reducing barriers to the use by seniors,
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`the disabled, and others.
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`• The construction of new facilities, which includes approximately 10 new or improved
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`transit centers and 11 new or improved park-and-rides and parking facilities related to
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`the rapid transit service.
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`43. METRO has received $3.5 billion in bonding authority, which consists of federal
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`grants and local funds, to move forward with this voter approved plan.
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`44.
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`However, since METRONext has been approved TxDOT has failed to fully address
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`how it will be incorporated into the NHHIP.
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`TxDOT provided a “Selected Alternative” for the NHHIP in the FEIS and ROD.
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`45. TxDOT presented the alternative that was selected for the Project in the FEIS and
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`ROD. The NHHIP selected alternative is divided into 3 different segments. Segment 1 is I-45 from
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`Beltway 8 North to north of Interstate Highway 610 (“I-610”) (North Loop). Segment 2 is I-45
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`from north of I-610 (North Loop) to Interstate Highway 10 (“I-10”) [including the interchange with
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`I-610]. Segment 3 is the Downtown Loop System [I-45, U.S. Highway 59/Interstate Highway 69
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`(“US 59/I-69”), and I-10]. Each segment is depicted on the following map and described in more
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`detail below.
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`46. Segment 1 (Green): Segment 1 widens the existing I-45 primarily on the west side of
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`the roadway, which requires about 200 to 225 feet of new right-of-way (“ROW”). A new ROW on
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`the east side is also required in part of Segment 1 between Crosstimbers Street and I-610. Thus, the
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`total new ROW required for Segment 1 is about 246 acres.
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`47. Further, in Segment 1, the expansion includes 8 to 10 general purpose lanes (2 to 3 in
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`each direction), 4 MaX lanes (2 in each direction), and 4 to 6 frontage road lanes (2 to 3 in each
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`direction). However, between Tidwell Road and I-610 there will be 12 general purpose lanes (6 in
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`each direction) to incorporate ramps and connections to and from I-610. The general-purpose lanes
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`will be elevated over major cross streets.
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`48. Segment 2 (Purple): The ROW required for Segment 2 will be taken from the east and
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`west sides of I-45. About 44 acres of new ROW will be required for this segment.
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`49. In Segment 2 the expansion includes 10 general purpose lanes (5 in each direction), 4
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`MaX lanes (2 in each direction), and 4 to 6 frontage road lanes (2 to 3 in each direction). From north
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`of Cottage Street to Norma Street, the general purpose and MaX lanes would be depressed.
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`50. Segment 3 (Orange): Segment 3 would reconstruct all the existing interchanges in the
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`Downtown Loop System and re-route I-45 to parallel I-10 on the north of Downtown and parallel
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`US 59/I-69 east of Downtown. Downtown access on the west side would be provided through
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`“Downtown Connectors” consisting of entrance and exit ramps for various Downtown streets. The
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`Downtown Connectors would be depressed between W. Dallas Street and Andrews Street. The
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`existing elevated I-45 roadway along west and south sides of Downtown would be removed.
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`However, an option to leave I-45 (Pierce Elevated) between Brazos Street and US 59/I-69 in place
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`is given but TxDOT is not funding any redevelopment or alternate use for such structure.
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`51.
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`Portions of I-10 and US 59/I-69 would be re-aligned or straightened, removing the
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`current curvature. Both I-45 and US 59/I-69 would be depressed in certain portions of the
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`alignment east of Downtown. I-45 is also re-routed south of the George R. Brown Convention
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`Center, where the highway begins to elevate tying into the existing I-45. US 59/I-69 would remain
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`depressed towards Spur 527 and will be widened between I-45 and State Highway (“SH”) 288. This
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`section would widen US 59/I-69 to 12 general purpose lanes. US 59/I-69 would also be
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`reconstructed between SH 288 to Spur 527 to 10 general purpose lanes.
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`52.
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`The 4 purposed in Segments 1 and 2 would terminate and begin at Milam Street and
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`Travis Street, respectively. I-10 express lanes are going to be located in the center of the general-
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`purpose lanes within the proposed parallel alignment of I-10 and I-45 north of Downtown.
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`53. Additionally, a new ROW to the east of the existing US 59/I-69 along east
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`Downtown would be needed to accommodate the re-alignment of I-45. A new southbound access
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`road would be located adjacent to US 59/I-69 tying into the existing Hamilton Street on the south
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`side of George R. Brown Convention Center. St. Emanuel Street would then serve as a northbound
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`access road. About 160 acres would be needed for the new ROW for the I-10 and US 59/I-69
`
`straightening and the construction of I-45 lanes adjacent to US 59/I-69 east of Downtown.
`
`TxDOT releases the FEIS and ROD, which fail to comply with NEPA, Section 4(f)
`and largely ignores the County’s concerns.
`
`54.
`
`On September 25, 2020, TxDOT published a notice that the FEIS had been
`
`completed and was open for a thirty-day comment period. TxDOT extended the deadline for
`
`comments on the FEIS until December 9, 2020.
`
`55.
`
`On December 9, 2020, Harris County provided comments to TxDOT on the FEIS
`
`for the NHHIP in the form of a letter from County Judge Lina Hidalgo (the County’s Chief
`
`Executive) with attachments. The County comments submitted a proposed “new vision” for
`
`Segments 1 and 2 based on the community and stakeholder workshops and survey.
`
`56.
`
`The County also identified inaccurate claims regarding the impacts of the alternatives
`
`identified in the FEIS, including impacts related to congestion, safety, and evacuation routes. The
`
`County comments showed that TxDOT eliminated reasonable alternatives from further analysis;
`
`that the traffic modeling and assumptions were unrealistic and ignored recent declining traffic
`
`numbers; that the FEIS removed discussions of certain adverse environmental impacts claiming
`
`instead that these would be mitigated by unsubstantiated and unfunded measures and downplayed
`
`other disparate impacts; and that the FEIS omitted critical information such as construction impacts,
`
`climate change, actual traffic trends, local street traffic impacts among others.
`
`57.
`
`The County also noted that traffic volumes on I-45 have decreased since 2008. The
`
`FEIS projects that traffic volumes would rise 40% between 2015 and 2040, yet the data from the
`
`
`
`15
`
`

`

`Case 4:21-cv-00805 Document 1 Filed on 03/11/21 in TXSD Page 16 of 32
`
`first five years of the projection period show traffic volumes decreasing. The County commented
`
`that a more careful analysis of high-quality data was needed and that the FEIS did not demonstrate
`
`that the anticipated congestion on I-45 is an appropriate justification for this project. The County
`
`noted that research shows highway widening projects improve congestion only temporarily as a
`
`result of induced demand and that faster vehicle speeds do not necessarily improve overall safety,
`
`with some evidence suggesting the opposite.
`
`58.
`
`The County commented that adding more lanes to the widest part of the I-45 will
`
`not help with emergency evacuation, because it will only act as additional storage space for motorists
`
`to queue or slow travel on an access-limited highway and I-45 eventually narrows to two lanes in
`
`each direction creating a bottleneck north of Houston. Relatedly, and without support, the FEIS
`
`claims that the NHHIP will not have significant impacts on local traffic.
`
`59.
`
`The County asserted that TxDOT did not meaningfully consider any options
`
`without significant displacement impacts. During the initial round of screening alternatives, right-of-
`
`way impacts were considered for only the segment between Cavalcade Street and Quitman Street
`
`and all alternatives that did not add lanes were eliminated from further consideration.
`
`60.
`
`Throughout the initial evaluation procedure, only a narrow set of alternatives was
`
`considered. For instance, all alternatives that did not add lanes to I-45 were disregarded without any
`
`additional consideration. As a result, TxDOT did not give meaningful consideration to alternatives
`
`that did not produce significant displacement impacts stemming from the added lanes to the
`
`highway.
`
`61.
`
`The County noted that the FEIS lacks a critical discussion relating to the
`
`disproportionate impacts on minority and low-income populations and climate change impacts. The
`
`DEIS provided a detailed account of these impacts, but that account was not included in the FEIS.
`
`The FEIS and its alternatives favor white communities while disproportionately impacting
`
`
`
`16
`
`

`

`Case 4:21-cv-00805 Document 1 Filed on 03/11/21 in TXSD Page 17 of 32
`
`communities of color. Regardless of intention, the impacts of the Project would disadvantage low-
`
`income communities and people of color.
`
`62.
`
`The County commented on the extensive impacts the NHHIP will have on METRO
`
`bus service, the Wheeler Transit Center circulation, and Inner Katy park-and-ride routes. The FEIS
`
`mentions general impacts and mitigation regarding METRO transit services, but fails to recognize
`
`the impacts on these specific services and routes.
`
`63.
`
`Further, the County observed that while the FEIS includes several mitigation
`
`measures in response to previous comments, its provides no adequate TxDOT funding source to
`
`implement those measures. The County noted that all mitigation claims in the FEIS must be funded
`
`as part of the NHHIP, and improvements that are not funded should not be claimed as mitigation.
`
`The FEIS fails to address this funding issue.
`
`64. Moreover, the County complained that FEIS does not acknowledge that the Bayou
`
`Greenways hike-bike trails are parkland or recreational facilities under § 4(f) of the Department of
`
`Transportation Act. As a result, no other alternatives, avoidance, or mitigation have been offered
`
`encompassing these parklands or recreational facilities.
`
`65.
`
`The NHHIP is an enormous endeavor and construction is predicted to last decades.
`
`However, the County noted that the FEIS provides no documentation of the impacts that will
`
`inevitably arise out of the decade-long construction. Consequently, TxDOT does not provide for
`
`mitigation of those construction impacts..
`
`66.
`
`Additionally, the County pointed out that the FEIS provided no documentation to
`
`support its claim that the NHHIP will have a positive impact on the region’s economy.
`
`67.
`
`The County also provided comments regarding the Project schematics, the FEIS
`
`language, and certain stated commitments. Specifically, the County raised concerns with the
`
`discrepancies in the FEIS between project schematics, FEIS language, and stated commitments.
`
`
`
`17
`
`

`

`Case 4:21-cv-00805 Document 1 Filed on 03/11/21 in TXSD Page 18 of 32
`
`68.
`
`TxDOT, FHWA and the U.S. Department of Transportation published a notice of
`
`final action on the NHHIP environmental review in the Federal Register on February 8, 2021. 86
`
`Fed. Reg. 8828 (Feb. 8, 2021). This notice starts the 150-day statute of limitations for judicial review
`
`of the final agency action pursuant to 23 U.S.C. 139(l)(1).
`
`69.
`
`On March 8, 2021, the Texas Division of the FHWA wrote to TxDOT requesting
`
`that TxDOT pause further contract solicitation efforts for the NHHIP to allow the federal agency
`
`to allow the federal agency “time to evaluate the serious Title VI concerns” raised by complaints it
`
`received from the public and an elected official. FHWA retains Title VI of the Civil Rights Act of
`
`1964 (which bars recipients o

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