I’m carefully reading the majority opinion of the state supreme court on the Freeman v Gregoire case, looking for more interesting points to make. I’ve found several, but this one deserves a quote on its own. From page 6:

On December 1, 2009, the FHA confirmed that reimbursement of federal-aid
highway funds expended in the construction of the center lanes of I-90 would not be
required "should [the center lanes] be used for light rail transit."

43 Replies to “I’ll Just Leave This Here…”

  1. WSDOT has no excuse to keep dragging its feet. The opinion is out, which is what Paula Hammond was waiting for. The opinion is clear – it’s time for WSDOT to “lick the knife and cut the ____”.

    WSDOT needs to declare those center lanes surplus, which will allow both ST and WSDOT to approve the airspace lease. This has gone on long enough!

    Those lanes will be surplus because light rail has a far greater people-moving capacity. The time for twiddling thumbs is over.

    1. WSDOT isn’t dragging their feet Sarah. They already have an agreement in place with ST.

      1. Paul: Wrong. WSDOT needs to declare the lanes surplus first. Then the final agreement has to be signed by WSDOT and presented to ST’s board (the Term Sheet is not the final agreement). That first step is critical, and WSDOT has not taken it – the lanes must be declared surplus.

        Didn’t you read the opinion? WSDOT has authority to administer its roads, and declaring unneeded roads surplus is something it has authority to do.

        Ben will back me up on this. Seriously Paul, read the opinion . . ..

      2. I understand the term sheet isn’t the final agreement, just a framework through which an agreement can be made later.

        You have an interesting point that the lanes could be declared surplus now. I contend that they don’t really *need* to be yet, and that they could wait until R8A is complete to do that, although I see benefits to accelerating the process. Perhaps someone at Sound Transit reading this thread might comment about what the next step in the process should be from their point of view…

        Also, is it WSDOT that would declare the lanes surplus, or the legislature?

      3. WSDOT needs to declare them surplus, and waiting until R8A is done would be a mistake because the argument would be stronger then that they are needed (more traffic using them, etc.).

        Here’s where the majority opinion spells out the statutes giving WSDOT the authority – this is on page 16:

        “Since DOT is statutorily authorized to transfer highway lands,6 …
        —
        6 See RCW 47.12.120 (permitting lease of highway land or air space); see also RCW 47.12.063 (allowing sale of highway land when not needed for transportation purposes); RCW 47.12.080 (allowing transfer and conveyance of DOT land when in public interest); RCW 47.12.283 (authorizing sale of highway land by public auction).”

      4. Sarah, I don’t think you really don’t understand what is going on. WSDOT and ST have an agreement in place. Before any real actions can take place, ST and WSDOT need to finish the NEPA/SEPA process. That should happen later this year. Step away from the keyboard and take a chill pill.

      5. No, Paul – YOU don’t understand the process.

        The NEPA/SEPA process is to get clearance for East Link. That process does not have to be done prior to the purely-administrative act of WSDOT declaring those lanes surplus.

        Moreover, NEPA/SEPA doesn’t have to be done before the airspace lease is signed. In fact, the RoD on the East Link project is not expected prior to end of 2012, and Hammond likely won’t be in office then. WSDOT can’t wait until the East Link RoD comes out before declaring those lanes surplus.

      6. WSDOT can not decide to surplus the center roadway until after the NEPA/SEPA process is complete.

        “When FHWA approval is required before WSDOT can make a lease or disposal decision, WSDOT’s action triggers a federal nexus. If a federal nexus is created NEPA, NHPA, and ESA documentation must be completed prior to lease or disposal (23 CFR 771.11(d)(6)). Two common real estate decisions requiring FHWA concurrence or approval include: (1) when surplus property being considered for lease or disposal is located on an interstate highway, and (2) if a parcel considered for lease or disposal was purchased with Federal funding and the parcel will be sold for less than fair market value. See Chapter 410 and Chapter 411 for Environmental review process and documentation. The Region RES staff will notify Region Environmental Staff if NEPA has been triggered. NEPA is not required for non-interstate leases or disposals sold at or above fair market value.”

        http://www.wsdot.wa.gov/publications/manuals/fulltext/M31-11/820.pdf

      7. Paul – I’ve responded to your post, but it just showed up on this page down below . . . it’s under my name.

    2. Sarah’s exactly right. It’s the will of the People. Justice delayed is justice denied. I’ve been a fan of Ms. Hammond while she’s been on the agency’s board, but we can’t let the institutional bias for roads and against transit at the DOT to hold this up any longer.

    3. Sarah — Have you traveled on I-90 recently? Most of the construction is related to the R8A improvements, which will add HOV lanes to the outer roadway so that the center express lanes can be closed for light rail construction.

      This issue has nothing to do with WSDOT.

      1. What is this, a convention of dunces?

        Matt – read what I posted for Paul, and then read the opinion.

        WSDOT has the responsibility – NOW – to declare those lanes surplus. If it doesn’t do that there can not be a lease to ST.

        What don’t you get about that, Matt?

      2. Sarah, please don’t be rude to the other commenters. I think Matt’s point is perfectly valid. This is like freaking out about getting a tunnel boring machine delivered if you haven’t dug the hole for it to be launched from yet.

    4. WSDOT isn’t really dragging its feet. I believe the only thing that can speed things up now would be the legislature putting some money into it.

      1. WSDOT needs more money from the legislature? Really?

        Give me a break. The majority opinion says WSDOT needs to declare the lanes surplus before they can be leased to Sound Transit, and it says that WSDOT has the statutory authority to do that.

        What would WSDOT need more money from the legislature for to declare those lanes surplus? It doesn’t need money from the legislature for that.

        If my frustration with this is showing through it’s just because 2.5 years have gone by and WSDOT has not taken the needed first step: declaring those lanes unneeded.

        You understand that has to happen, right Ben. It says so right in the opinion.

      2. I’m saying the critical path for the project is constructing R8A – which has a few more years yet. Declaration now won’t speed up the project, because it’s not holding anything else up.

        I’m saying the best way to speed things up would be the legislature appropriating funding to accelerate R8A.

      3. Ben, R8A is FULLY FUNDED (by ST). More money from the state would not speed anything up – it’s going as fast as it can. Once all the traffic is diverted from SR-520 tolling it’ll be harder to argue those lanes are unneeded and surplus.

        I’m not “freaking out”. Are you unaware we could have a Republican governor, who appoints a bassackwards WSDOT head 20 months from now. If Hammond doesn’t declare those lanes surplus AND sign off on the airspace lease before she’s gone the window could well slam shut.

        Time is the enemy. There is no good reason to delay AND delay could be fatal.

      4. Ah ha. The point that McKenna could be governor is really good, and I hadn’t considered the toll diversion either! You’re right, WSDOT should move forward on this.

      5. They might have been delaying because of the pending litigation. Now that they’ve won, that might move things forward sooner? Or maybe I’m just being Pollyanna about it, I’m certainly no expert on how WDOT operates.

      6. I could see McKenna whipping up his wealthy suburban contributor base and running on this. He’s not above pandering to the carbon-spewing crowd (“If elected my Sec. of Transportation will not declare those vital roads surplus, and he will not hand them over to the boondoggle train agency.”)

      7. What of Freeman’s argument that declaring the lanes surplus would require them to be sold off rather than leased to Sound Transit? And that if light rail use of the lanes is considered a highway purpose, then the lanes aren’t surplus? Does the opinion address that argument? Would declaring the lanes surplus force the issue?

      8. Pat, McKenna was defending the state – and light rail – on this case. I don’t think it’d fly if he campaigned against a case he won. :)

      9. Kyle, I don’t think there’d be any legal difference between sale and lease. But IANAL, of course.

      10. “McKenna was defending the state – and light rail – on this case.”

        McKenna was very cagey in this case. He was not defending light rail, he was saying the court should not issue the requested writ of mandamus because the potential transfer by WSDOT of its roads is a discretionary act (not something the court can compel). The Justices bought that argument 100%. Thing is, now McKenna can say – in all sincerity – that he was just taking positions for WSDOT’s autonomy, not supporting light rail. Later saying he would not go forward with transferring roads to ST is not inconsistent. Pretty slick, actually . . . .

      11. law dork, that’s a really, really good point. I just went back and read that portion again, and yep, you’re right about DOT’s argument. That bastard.

    5. Hi Paul – I think I can clear some of this up for you. That part of the regs manual doesn’t apply to this situation. This comes under the NEPA exception, when a DNS applies. It isn’t “significant” because the transfer of surplus property never is a significant event from an environmental perspective.

      You are correct that if FHWA approval is required WSDOT can’t surplus property. This isn’t one of those cases though: it’s an airspace lease, which is not “on” an interstate highway. There’s no “federal nexus” because of that. Just read the regs, you’ll see what I mean. Subsection (2) doesn’t apply either, as the transfer will be for fair market value.

      That’s why WSDOT isn’t going to wait for the East Link EIS process to play out. It has the clear legal right to declare those airspace rights surplus now.

      Hope this helps!

      1. Kelly, WSDOT >is< doing an EIS for East Link. If you look carefully, you'll note that the are a SEPA co-lead agency. This is different than Central Link where they were just a NEPA cooperating agency.

        NEPA exclusions are applied on a case specific basis. Just because an a type of action typically qualifies as a NEPA exclusion doesn't mean it always does. You need to evaluate an action on a case by case basis.

      2. Kelly, here is some more information for you: FHWA will need to approve the changes in access to I-90 related to WSDOT vacating the center roadway express lanes for ST/East Link. I can’t imagine WSDOT declaring the center roadway surplus before FHWA approves the changes.

        FHWA will need to do NEPA for that approval. I see they are a cooperating agency for East Link, which means they can adopt the FTA NEPA document for their purposes. It wouldn’t surprise me though if they did their own Record of Decision focused on the FHWA action.

  2. What does the Federal Housing Administration (FHA) have to do with floating-bridge construction?

    OHH!! The FHWA!! Wait, that might give Kemper grounds for appeal on a technicality.

  3. How are they fitting additional lanes through the Mt Baker tunnel of i90? That seems pretty narrow to me.

      1. So there’s room through there without having to dig out more space for the additional lane?

      2. Nope, Sound Transit plans to use a new process to take transit vehicles partially out of “phase” as they travel through the tunnel, allowing them to pass directly through the hill. ;)

        Yes, I think there’s space to restripe.

    2. The two original tunnels – the present-day eastbound tunnels – originally had two lanes each. Today the northern tunnel has two lanes and the southern has one. Restriping should allow the southern tunnel to again have two lanes. The newer westbound tunnel looks like it is sufficiently wide to handle 4 lanes.

      1. I’m a little dubious on the far right tunnel (EB). It really doesn’t seem to have room for more than one lane. And if I may say, I am old enough to sort of remember driving on the OLD I-90 and it was damn scary! Like emerging from the tunnel then having to quickly swerve around a “hole” in the bridge.

  4. Seems to me legal language here is a lot less important than the rapidly-changing personal, community, and political understanding of what exactly a “highway use” is. It’s hard to feature Dwight Eisenhower objecting to EastLINK using I-90. Too bad “Ike” wouldn’t be allowed in a single Republican primary now.

    He’d also be too risky for a lot of Democrats who currently call themselves moderates and centrists. Who was it that said, in the early ’90’s, that: “The age of Big Government is over?” Dwight Eisenhower didn’t think so.

    Mark Dublin

  5. All of this could come crashing down if it turns out the track-bed can’t be safely built on that floating bridge. Apparently stray electrical currents from the power wire poles might weaken the structure, a lot.

    1. An independent review panel hired by WSDOT in 2008 has already concluded that there is no technical reason the center roadway can not be converted to light rail. You can read their extensive report on WSDOT’s website. All this about stray currents and expansion joints and weight is just FUD. Everything can be mitigated through engineering. We sent men to the moon, I’m sure we can figure out how to get a train across a bridge.

      1. I don’t know… I think sending a man to the moon back in 1969 was easier than trying to get this crap built! lol

    2. Like Zed said – that’s an anti-transit red herring talking point. It holds no water (or electricity).

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