$9 Billion Highway Funding Boost Includes $620 million for Austin Projects

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Congestion in Austin. Courtesy of the Austin Statesman.

$620 million of a $9 billion spending plan passed by the Texas Transportation Commission will fund four Austin city congestion relief projects. The plan is the latest development in Texas’ unified transportation plan, which, updated yearly, instructs the state’s highway, maritime, and aviation spending.

Loop 360, referred to as Capital of Texas Highway, will receive $204 million in State funding. This project will construct overpasses along the Loop beginning at Westlake Drive North. The overpasses will allow drivers to circumvent traffic lights.

Interstate 35 will receive $162 million and $133 million for two separate projects. The $162 million project will improve overpasses, ramps, and pavement conditions between Holly Street and Oltorf Street. The $133 million project will add flyover bridges near the I-35 and U.S. 183 interchange.

U.S. Highway 183 will receive $120 million. This project will add additional lanes to sections of the highway between MoPac Boulevard and Ranch-to-Market-Road (RM) 620. The funds will be combined with $46 million raised by the City of Austin.

Taken together, the investments will produce a noticeable increase of infrastructure-related construction activity. Landowners in affected areas should be mindful that such projects may require the use of eminent domain to obtain the land necessary to satisfy project needs.

Houston Receives $1.32 Billion Infusion of Highway Funding

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Traffic on I-45. Courtesy of Houston Chronicle.

Houston will receive $1.32 billion of the $9 billion spending plan passed by the Texas Transportation Commission for congestion relief. The Houston allocation, which is directed towards improving Interstate 45 and other highways, is among the largest distributions for a total of 230 statewide projects supported by this funding. The allotment will help reconstruct sections of I-45, and realign it with Interstate 69 (U.S. 59) through various individual projects.

The earliest of the scheduled developments will reconstruct I-69 between I-45 and Spur 527 before rebuilding I-45 at its I-69 interchange. This will be followed by a widening of I-45 in League City to four lanes in each direction. Finally, reconstruction work is scheduled for selected I-69/Loop 610 connections, near the Galleria area.

Congestion relief projects frequently involve expansion of one kind or another, as the principle method of relieving traffic is to increase the carrying capacity of targeted roadways. The completion of such projects may therefore require the acquisition of privately owned lands, which can in turn lead to eminent domain use for the condemnation of property.

U.S. Infrastructure Receives Near-Failing Grade

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Mayor Walsh Hopes To Reopen Long Island Bridge In Three Years

Rusted Long Island Bridge. Courtesy of Fortune.

In its most recent assessment, the American Society of Civil Engineers (ASCE) gave infrastructure in the United States a D+ grade overall. The grade is unchanged from the ASCE’s last assessment in 2013, which indicates that any improvement has been minimal. An average of total U.S. infrastructure, the report also included breakdowns of each of the sixteen individual categories. Seven areas showed improvement and three declined.

The lowest grade, a D-, was for transit, a decline from a D four years ago. Unsurprisingly, the current rebuilding schedule for rail and bus systems is roughly $90 billion behind. The drinking water system was also given a D grade, the same as the 2013. Much of the pipes were laid in the beginning or middle of the last century and are coming to the end of their lifespans. Each year, water main leaks cause over two trillion gallons of fresh water to be wasted.

Dams also received a D grade. The most famous recent case of dam failure was the Oroville Dam in California, the breaking of which displaced 200,000 people. But the 49-year-old dam was just one of many at a high risk for failure. The ASCE report noted that “The average age of the 90,580 dams in the country is 56 years,” and that “the number of deficient high-hazard potential dams has also climbed to an estimated 2,170 or more.”

Funding shortages appear to be the root of the problem. The ASCE estimates that the U.S. needs to invest $4.59 trillion by 2025 to bring its infrastructure to an acceptable B- grade. Current funding plans would fall short of this amount by about $2 trillion. The highest grade in the report was a B for rail, an improvement from the C+ given in 2013. The report attributed asserts that significant spending was a large factor, with $27.1 billion spent on rails in 2015 alone.

The report comes at a time when political momentum for infrastructure investment may be building. In an address to Congress, the President indicated the desire to pass legislation to increase infrastructure spending by $1 trillion. He has also discussed a tax credit to incentivize private sector investment. Though much needed, such infrastructure improvements could very well bring applications of eminent domain. Given the comprehensiveness of the need, it’s possible that use of the power could be equally wide ranging.

$1 Billion TxDOT Funding to Bring I-45 Construction

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Traffic on I-45. Courtesy of Houston Chronicle.

Approximately $1 billion of a Texas congestion relief package fund will be dedicated to addressing issues in the Houston area. Recently approved by the Texas Department of Transportation (TxDOT), the funding will be distributed across three projects that target high traffic zones. Over half of the funding will be used for the reconstruction of Interstate 45 at the interchange where it crosses Interstate 69. The project will also rebuild the main lanes of both freeways. Another project receiving funding will rebuild the ramps and freeways of Interstate 69 from Spur 527 to Interstate 45, and through its interchange with Texas 288. The remainder of the funds will support a project that rebuilds the main lanes and frontage roads of Loop 610, and creates a bridge for the Cambridge, Almeda, and Union Pacific Railroad tracks. Such projects often require property outside the existing right-of-way, a need which may lead to the use of eminent domain.

Texans for Property Rights Coalition Supports Eminent Domain Legislation

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Courtesy of the Texas Farm Bureau.

In a recent press release, the Texans for Property Rights Coalition voiced its support for State Representative DeWayne Burns’ (R-Cleburne) recently authored House Bill 2684. The Bill, which has been filed, seeks to improve the odds for landowners who face condemnation actions by powerful and wealthy corporations and government agencies. The eminent domain legislation will require condemning authorities to reimburse the expenses of landowners they sue if the landowners are awarded an amount significantly greater than the condemnor’s final offer. Also endorsed were proposed legislation by Representatives Trent Ashby (R-Lufkin), Kyle Kacal (R-Bryan), and Justin Holland (R-Rockwall).

The Texans for Property Rights Coalition is dedicated to advancing landowner rights in the State of Texas. The Coalition includes:

Texas Farm Bureau, Texas and Southwestern Cattle Raisers Association, Texas Wildlife Association, Texas Association of REALTORS®, South Texas’ Property Rights Association, Texas Forestry Association, Texas Sheep and Goat Raisers Association, Texas Poultry Federation, Independent Cattlemen’s Association of Texas, Texas Grain Sorghum Association, Plains Cotton Growers Inc., Texas Land and Mineral Owners Association, Texas Association of Dairymen, Texas Cattle Feeders Association, Corn Producers Association of Texas, Riverside and Landowners Protection Coalition, Texas Grain and Feed Association, Texas Citrus Mutual, Texas Hill Country Heritage Association, Texas Coalition for Conservation, Texas Wheat Producers Association, Texas Agricultural Land Trust, Ranchers and Landowners Association of Texas, Texas Nursery and Landscape Association and the Tax Exchange Institute.

Please view the press release here.

CPS Energy Power Line Collapses in San Antonio

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CPS Energy power line collapse. Courtesy of Texas Public Radio.

Heavy winds generated by thunder storms caused the collapse of a power line operated by CPS Energy this past weekend. The storms damaged approximately 100 structures of various kinds, and disrupted service to 40,000 CPS customers.

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CPS tower, opposite side. Courtesy of San Antonio Express.

JMEH Partner Justin Hodge Speaks to Texas Lawyer on Trump’s Eminent Domain Impact

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Image of current border fence. Courtesy of The Independent.

In an interview with Texas Lawyer, attorney Justin Hodge discussed the possible impact of Trump’s border wall and other infrastructure policies on the eminent domain industry. He noted that highway projects have historically been the largest cause of eminent domain use, and considered the effect of increased federal funding on project frequency. On the border wall, Mr. Hodge drew the distinction between Federal and State court cases, suggesting that State court cases, being more frequently brought, tended to resolve more rapidly. He also noted that State procedures guaranteed a jury trial, in contrast to Federal cases. Justin Hodge is a Partner at Johns Marrs Ellis & Hodge LLP. He represents landowners exclusively, and is based in Houston.

 To read the full interview, click here.

Kinder Morgan Pipeline Explosion in Refugio Texas

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Refugio explosion from a distance. Photo courtesy of KOAA News.

At approximately 1:00 am on Wednesday morning, a Kinder Morgan pipeline exploded in Refugio Texas. The explosion produced a fireball stretching 200 feet into the night sky, illuminating the area. Though there were no injuries, the blast was felt and heard as far as 60 miles away, and woke residents in the area.

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A still taken from a video shot by the dashboard camera of a responding Officer. Courtesy of ABC Local.

 

Incidents like these highlight the latent danger that landowners are exposed to when pipelines are constructed on their property.

The entire video can be found here.

Texas Supreme Court Pipeline Ruling Sets back Texas Land Owner Rights

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Denbury Pipeline. Photo Courtesy of StateImpact.NPR.org.

According to the Fifth Amendment of the U.S. Constitution and Article I, Section 17 of the Texas Constitution, applications of the eminent-domain power must be for public use. Jurisdictions have developed legal and administrative structures which allow private interests limited uses of the power. For Texas pipelines, the granting of eminent-domain authority can only take place when a project fulfills certain requirements. Chief among these is the ability to prove that the pipeline has a public use, meaning it is not being built exclusively for and used only by the entity condemning the land. Statewide, the common-carrier definition, and the derivative test determining whether the definition can describe a given pipeline, is used to establish and enforce the public use requirement.

In the recently decided Denbury Green Pipeline – Texas, LLC v. Texas Rice Land Partners, Ltd., the Texas Supreme Court clarified the access conditions for common-carrier status. In 2015, an appellate court established two additional barriers to common-carrier status. First, it held that a pipeline’s common carrier status must result from an examination of the intent of the constructing party to use the pipeline for public benefit at the onset of the project’s contemplation. Second, the pipeline’s use must serve a “substantial” public interest. The Supreme Court decision reversed these two holdings, the first on the grounds that it misinterpreted case law, and the second because it proceeded beyond the limits of precedent. The Supreme Court also held that Denbury’s post-construction product transportation contracts with third parties, and the fact that certain third parties would retain product title, was sufficient to evidence public use and therefore common-carrier status after the pipeline is built. This opinion is a significant blow to Texas landowner rights.