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D. Right
of Way Acquisition 1. Right of entry. TxDOT acquires rights of way for transportation projects. However, when
conducting property appraisals, surveying, or acquiring property for a
transportation project, the department lacks authority to enter private property
unless expressly authorized. In order to provide TxDOT with the best possible
information about potential parcels, including
environmental issues, TxDOT needs, but lacks the statutory authority, to have
right of entry of private property for environmental surveys. Right of entry
would provide TxDOT with key information on the potential for contamination, the
presence of wetlands, historic and prehistoric resources, and other sensitive
resources, prior to acquisition. Without
right of entry, TxDOT must make project decisions on alignments without having
all necessary information. The National Environmental Policy Act of 1969 requires that significant federal
actions receive the balanced consideration of social, economic and environmental
impacts, and that NEPA documents fully disclose these impacts. TxDOT has
accomplished the full disclosure of environmental impacts with one exception –
without right of entry,
TxDOT cannot fully disclose the particular impacts and issues of a particular
parcel. In order to survey potential rights of way, written concurrence from
property owners is needed. Often, owners will not allow these surveys to take
place, requiring TxDOT to wait until after acquisition to discover the
environmental status of a parcel. Without right of entry, TxDOT cannot complete the environmental analysis of a
project until right-of-way acquisition is complete. Prior to acquisition, TxDOT
coordinates projects with state and federal resource agencies to determine
permit and mitigation needs. This often creates a duplication of effort, because
TxDOT must go back to the resource
agencies following right-of-way acquisition. In addition, the department ends up
paying more for environmental commitments by not knowing the full extent of
environmental impacts on a given parcel. An example of the department’s lacking right of entry costing the state
significant expense includes a site purchased in 1992 for the expansion of U.S.
Highway 59 in Houston. The site was used as a bulk distribution location for
gasoline and also as a gasoline service station. While only a portion of the
tract was needed for highway purposes, the department was denied the ability by
the property owner to test for contamination. Unfortunately, after acquisition,
the tract was found to be extremely contaminated. Clean-up of the site cost the
state $3.1 million dollars, on top of the "full-value" property acquisition cost
of $1 million. One example of the department’s lacking right of entry directly leading to a
significant delay is a State Highway 35 project in Houston. Multiple property
owners refused the department entry for necessary wetland and archaeological
studies. The refusals caused a twelve to eighteen month delay in the project. Possible statutory change: Provide TxDOT right of entry under certain conditions
to private property for conducting property appraisals, surveying, or acquiring
property. 2. Timely Relocation of Utilities The timely adjustment or accommodation of utility facilities is absolutely
essential to the efficient and cost-effective delivery of transportation
projects. Utilities possess statutory authority to occupy public rights of way
including state highway rights of way. When highway improvements are made,
utility facilities are required to adjust utilities to clear the project in
compliance with the criteria contained in the TxDOT Utility Accommodation
Policy. However, the department has no means to ensure that utilities are
relocated in a timely manner. Many times TxDOT must either delay the letting of
a contract or, if possible, require the contractor to work around utilities
until they are moved. In fact, in
fiscal year 1998, eight projects were pulled from the letting schedule because
utilities were not yet relocated to allow construction. Whether the delay is
pre-letting or post-letting, these delays can considerably lengthen the time
until construction is completed and cause significant expense due to the delays. Once a project has been let, construction delays caused by utilities can
translate directly into claims filed against the department by contractors which
have incurred additional overhead and direct costs as a result of the delay. For
instance, in 1995 the department settled a claim filed by a contractor stemming
from utility delays by compensating the contractor $3.6 million for increased
costs due to utility relocation delay on a project in Travis County. Also in
1995, TxDOT settled a claim by compensating the contractor over $600,000 for
delays due to utility relocation on a project in Montgomery County. It should also be noted that various utility companies may be working within
highway right of way for up to a year prior to the time that an actual
construction project goes to bid. In these cases, the general public may not
distinguish between the utility and road contractors. And thus it appears that
the construction lasts even longer. For all intent, it does. That is why it is
critical for the utility companies to finish their work in a timely manner. Possible statutory changes: Although the department presently has no specific
recommended statutory changes to current law to address this issue, the agency
would like the Legislature to be cognizant of problems surrounding the
timeliness of utility relocations. There are basically two approaches one could
take to address this issue—providing an incentive for completing the work or
penalties for inadequate performance. From the Commission's perspective, it is
not prudent to
pay a utility an incentive to do something that the law requires them to do
anyway. Utilities which are late in being relocated result in lengthening the
project development and construction process, and increasing project costs. The
department encourages the Legislature to explore initiatives which would have a
positive effect on the relocation of
utilities adjacent to highway improvement projects |
