Deep Six

Corps beliefs about wetlands stall TxDOT's paving plans

Work should be humming along on the $19.3 million project to expand five miles of State Highway 6 in Fort Bend County: The contractor broke ground in October, there are no money woes, and the weather for the most part has been cooperative.

Instead, for the past two months work has been all but stalled. And until two powerful government agencies settle a dispute over environmental standards, the project is likely to remain in limbo.

The Corps of Engineers hit the Texas Department of Transportation with an unusual cease-and-desist order February 7 after about 15 percent of the project had been completed. Construction would imperil wetlands around Oyster Creek, the Corps said, and TxDOT needed to show how it was going to alleviate the problem.

Work won't continue until the agencies' dispute ends.
Deron Neblett
Work won't continue until the agencies' dispute ends.

As far as the Corps is concerned, the lack of a wetlands plan is something that should have been addressed long before construction began for the stretch of pavement between Senior Road and FM 521.

"Everything I can read in the regulations says this is something that should have been done 18 months ago, before they even went out for the contract," says Casey Cutler, compliance director in the Corps's Galveston headquarters. "Why they didn't do it, I don't know."

Cutler says he isn't sure how the Corps became aware of the project and its potential problems, but that "sometimes my folks are just out on the highway and they see something that concerns them and they check to see if a project has the right permits."

TxDOT officials don't necessarily agree with the Corps's arguments. The problem, they say, is that it is not easy to delineate just what is a wetlands area.

The state believed its construction would impact less than a half-acre of wetlands and proceeded under permits that allow such minimal disturbance. The Corps disputes that "delineation"; TxDOT has hired an independent consultant to come up with a third delineation. TxDOT and the Corps will then negotiate over who is correct, although Cutler notes that "There's no vote -- the final call is up to the Corps."

Janelle Gbur, TxDOT spokeswoman for the Houston region, says the snafu "is not a matter of us not doing something or not filing something, it's a matter of interpretation" over what TxDOT filed. They began work under a so-called nationwide permit, which is granted automatically for work impacting a half-acre of wetlands or less. The granting of such a permit does not involve the Corps's Galveston office.

But Cutler says TxDOT delineated the potentially impacted wetlands for only a small portion of the project, and it needs to assess the wetlands impact along the entire five-mile length.

"What I tell people is that if you decide that you qualify as a nationwide permit, you better be right, because if you're not, it's a federal violation," Cutler says. "So the best thing to do is to send everything to [the local office] and let us sign off on it."

TxDOT officials don't know when their full wetlands delineation will be completed. Until the Corps signs off and lifts the cease-and-desist order, only relatively minor work, such as paving and painting areas in the 15 percent of the project that's completed, can be done. The contractor, Deavers Construction of Houston, will likely have a financial claim to make against TxDOT for being kept idle on the project, but that will be negotiated after the work is finished, Gbur says.

The project, which will expand Highway 6 to three lanes in each direction, is in a relatively rural part of the county, although one with enough nearby subdivisions to ensure that the rapid development that has been eating up Fort Bend County is not far away.

Until the project is finished, motorists are sharing one side of the highway. The expansion had originally been scheduled for completion by summer of 2001, but there's no good guess now on when it might be done.

Diana Noble, director of TxDOT's Environmental Affairs Division in Austin, says the cease-and-desist order from the Corps is relatively rare.

"We do 1,100 projects each fiscal year, and I believe last year the number of such orders we got was in the single digits," she says. This project just might be the most expensive ever to be hit with one, she says.

Gbur, a 26-year veteran of the Houston office, says she cannot recall any cease-and-desist order against a project in the region.

Cutler says the agency might expect more. "TxDOT has had thousands of projects statewide that have had violations," he says. "We're trying to get them to pay attention."

Three other highway projects were also hit with cease-and-desist orders about the same time as Highway 6: a section of Interstate 10 in Beaumont, a section of State Highway 35 near Matagorda and a section of State Highway 87 straddling the border of Victoria and DeWitt counties.

E-mail Richard Connelly at rich.connelly@houstonpress.com.

 
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