Prediction for 2009: Trinity Toll Road Finally Crashes and Burns for Good

Here's hoping that the next year brings us a big, stinking failure on the Trinity

This is the time of year when most people who do what I do for a living write about what they think will happen in the year ahead. In other words, they take the day off.

But I prefer to view the future through my own lens. What warms my heart and quickens my pulse is thinking about all the stuff that's going to crash and burn next year. It makes me happy. Like the Trinity River toll road, for example.

Look, I do remember that we had a referendum on this issue a year ago and that the people of Dallas, in their estimable wisdom, voted to build a highway out in the middle of the river. But let me say this about that. Building a highway in the middle of a river is a really, really, really stupid idea.

When the rains come down, the river fills up. Perhaps we forgot this important scientific principle when we voted to build an expressway next to the river.
COURTESY OF THE DALLAS PUBLIC LIBRARY
When the rains come down, the river fills up. Perhaps we forgot this important scientific principle when we voted to build an expressway next to the river.

Please bear with me. I mean no harm. These last years in our great nation have been a time of turmoil and soul-searching for us all. One of the things I have had to open my own heart to, in spite of a lifelong faith in democratic governance, is that sometimes democracy is an idiot.

Sometimes the people elect the wrong guy. Sometimes they vote to build a highway in the middle of a river. People are people.

I see some of you raising your hands to say that you did not, as far as you know, vote to build a highway in the middle of a river. You voted to build it on the side of the river. And I do see your point. Please allow me to explain my point.

When there is no rain and the region is dry, the Trinity River, which runs through the center of our city, is low and narrow—a trickle at most. True, during those periods the proposed highway will be next to the river—right next to it, cheek-by-jowl as a matter of fact.

But when the rain comes down from the sky and the storm sewers and ditches fill with water, then the river will become deep and broad, and then the highway will be in the river up to its cheeks.

Aha! The dratted rain. But you know, an underwater highway is actually the least of what we have to worry about. The real concern is that gumming up the city's flood-control system by building a highway in the middle of it will expose downtown to a risk of catastrophic flooding.

That's the biggie. Not that the people pushing this highway will feel even a twinge of conscience over that. We have seen already that they do not and will not. No, the problem for them now is a new and evolving legal climate in America in which they could be sued and ruined. In fact, my prediction for next year is that the risk of litigation will put the long overdue kibosh to this idiotic scheme.

In the legal climate post-Hurricane Katrina, government agencies, officials in those agencies and elected officials are starting to have new worries. Centuries-old legal principles shielding them from liability are changing and eroding, especially the concept of sovereign immunity.

Sovereign immunity is the time-honored idea that government officials who are doing their darned best to protect the public from floods can't be sued if something goes wrong and a flood happens anyway.

Legal experts are warning government officials not to put too much trust in sovereign immunity these days. In fact a "National Committee on Levee Safety" convened by the U.S. Army Corps of Engineers a year ago seems to be spending less time on levee safety and more time on the issue of who gets sued, who wins and who loses when dams and levees go bad.

You remember levees—those big grassy berms along both sides of the Trinity that are supposed to hold the water in when the river rises so it won't flood downtown. There are two things to keep in mind about our own levees here in Dallas. First, in the early 1990s when the Corps of Engineers first started talking about the need for new construction along the Dallas levees, the Corps' justification was that the Dallas levees needed to be raised to prevent flooding downtown.

But in October 2001, George W. Bush's first director of the White House Office of Management and Budget, Mitchell Daniels (now governor of Indiana), took the Trinity River project out of the presidential budget. Daniels said in a memo to the Corps: "OMB has serious concerns about the way the Corps formulated this project."

Since then, in fact, the Trinity project has been funded almost entirely with congressional earmark funds outside the normal budgeting process. If you don't mind, let's not try to drill down too deep into that one. Daniels' technical reasons for questioning the project aren't central to the point I'm trying to make here.

The pertinent point—especially if you happen to be a plaintiff's attorney out there with your ears pricked up—is this: A fairly dramatic public record exists in which a high government official called into question the basic underlying design of this flood-control project.

Year after year, that record was extended and endorsed when the Bush White House continued to refuse to put this project back into the president's budget.

Now jump ahead with me to 2004-2005, when the original design for the project went through a major morph and came to include a limited-access high-speed expressway next to the river, which, if built, will be the first highway of its kind ever built inside a major flood-control levee system in America.

This is the second thing to know about the levees: Designing an expressway that will go inside the levees has required the Corps to revisit the plan for raising the levees. Because the presence of the highway between the levees will choke the floodway and cause floodwater to rise higher on the sides of the levees, the levees will have to be raised even higher than originally planned.

So now you've got a flood-control project that was dicey in the first place. And you've got public officials, elected and non-, making discretionary decisions that make it even dicier.

That National Committee on Levee Safety has been hearing a drumbeat of opinion from legal experts telling them that their chances of getting sued are much higher since Katrina. Especially risky for officials, in terms of litigation, are decisions they make to divert or plug up floodplains with construction.

In a survey of trends in case law, Jon Kusler, executive director of The Association of State Wetland Managers, told the committee: "Most of the successful suits based upon flooding or erosion occur when governments interfere with flood flows or drainage."

Edward A. Thomas, a lawyer who writes about flood control and litigation, has cautioned the committee that, in the wake of Katrina, traditional standards of acceptable practice no longer apply. And think about it. What did Katrina teach us, we hope, about the traditional standards? Ah...they don't work. Big time.

What I like best about the presentation Thomas gave the committee is his list of mistakes government officials can make that will get them sued, glued and tattooed. The very first item on the list speaks quite directly to our Trinity River toll road project here in Dallas.

His list is called, "Examples of situations where governments may be held liable." The first example is "Construction of a road blocks drainage."

Did I...now I can't remember...did I mention that if you are a plaintiff's attorney, and if maybe lately you have not been getting enough colorful, concertina-playing itinerant clients who tragically slipped and fell in the supermarket, and if maybe you're looking for a little bit of new action, and if maybe your jaw just dropped to the floor at the notion of getting the U.S. Army Corps of (Deep Pockets) Engineers in the dock, you might want to take some notes here?

Talk about Christmas! It could happen to you!

Our local officials—the bureaucrats anyway—are quite aware of the National Committee on How Not to Get Sued. The city of Dallas even has a nonvoting member on the committee, although I don't believe anyone has briefed the city council yet on the litigation thing.

Lots of bizarre stuff is popping up elsewhere around this project. You may remember that Dallas Mayor Tom Leppert made a big deal of putting the toll road on a fast track for completion after last year's referendum. Since then it seems only to have bogged deeper and deeper into delay.

My own favorite toll-related event recently was the December 5 departure of Jorge Figueredo, who had been executive director of the North Texas Tollway Authority for just more than a year. Figueredo attended a 12:30 p.m. executive session of the NTTA board of directors, walked out of the meeting and out of the building, never to return. He was replaced immediately by an NTTA staffer acting as interim director.

NTTA issued a statement that included this quote, supposedly from Figueredo: "The difficulties encountered over this period as a result of being separated from my family in Florida have been more of a burden on me than I ever anticipated."

Yikes. One hopes they hadn't been holding the man against his will.

Then you may have seen Jack Fink's stories on Channel 11 revealing that Figueredo's severance package, compared with what was called for in his contract, didn't seem to add up to a voluntary departure.

Figueredo has maintained radio silence since leaving. I called his cell phone but received no reply. All in all, it's not what we here in the industrialized Western world would call an orderly succession.

In this incident and in the body language around City Hall whenever the toll road comes up, I think I see hot steam hissing up out of the rocks. Even if Dallas City Hall is too stupid to understand the risks, the Corps of Engineers must know this toll road will take them all to lawsuit perdition.

The Trinity toll road is not going to happen. That is my prediction for the year ahead. The Corps is going to find a way out of it. And then we can build the biggest urban linear wilderness park in the world and finally put this burg on the map.

That's why I'm so happy. I'm dreaming of a green new year.

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