A U-Turn at TDOT? 

State Route 840 is the first test for an agency that says it’s on the road to recovery

State Route 840 is the first test for an agency that says it’s on the road to recovery

Conventional wisdom has it that the only thing dirtier than the water in the Kelley Creek watershed after a rain—thanks to poor erosion controls on the state Route 840 project—may be the Tennessee Department of Transportation’s (TDOT) reputation with environmentalists, property owners, land-use advocates, commuters and, well, pretty much everybody but road builders. But five months into the Bredesen administration, TDOT is singing a new tune, complete with claims that the agency has seen the sunshine and will henceforth include long-range planning, environmental stewardship and meaningful public participation in TDOT’s standard ops.

The southern half of the 840 loop is shaping up to be the agency’s first test, and the southwest Williamson County residents to whom it must prove itself are going to be a tough sell. After all, they’ve been battling the agency both in and out of court for years. Last fall, they were in court filing a notice of intent to sue the Tennessee Department of Environment and Conservation (TDEC) for failing to enforce state and federal clean water laws on the 840 project. Specifically, the citizens alleged, TDEC failed to sufficiently punish TDOT and Vaughn Contractors, the firm building the section of 840 between Highway 100 and Bending Chestnut Road, for dirtying the pristine waters of the Kelley Creek and Locke Branch watersheds—and potentially killing the wildlife that depends on them.

The threat of a lawsuit prompted attorneys from the two agencies to sit down with deputy attorney general Barry Turner and hammer out a “consent order” outlining what penalties TDEC would levy against TDOT. (Interestingly, though, the consent order explicitly states that TDOT doesn’t admit to any of the numerous allegations in the 50-page document and reserves the right to contest them in other court cases.) The legalese laundry list was released last December for comment by interested parties, including the landowners who threatened the original lawsuit and anyone else with an attorney who wanted to weigh in and/or threaten to challenge the order in court. In early May, TDEC and TDOT released a revised version of the consent order that purports to completely reform TDOT’s stormwater management practices to the tune of $10 million.

This is where the waters get a little murky, so to speak. “The road builders’ fingerprints are all over the revised order,” says Elizabeth Murphy, a Nashville attorney who represents two affected Williamson County residents who originally filed notice of intent to sue. “And they intervened politically.”

The Tennessee Road Builders Association (TRBA) did intervene, according to James Weaver, the association’s high-powered Nashville attorney, but only because “they wanted to develop a long-term solution to the problem of stormwater management in Tennessee.” Weaver contends that the road builders, like TDEC, TDOT and what he refers to as “the environmental community,” want the state to develop an erosion control and stormwater management system that’s “not just good, but great.”

The road builders didn’t intervene in this case solely out of the kindness of their hearts, though. They made it clear to TDOT, TDEC and “the environmental community” that they would challenge in court the numerical standards for water quality included in the first draft of the consent order. The numbers—which establish limits for turbidity and total suspended solids (TSS), two indicators of how much crap is in the water—were originally designed to trigger automatic penalties. In the second draft, violations lead to less ominous “evaluation and correction.”

This change came about thanks to the hard work and deep pockets of TRBA. In March, they flew California-based consultant Carol Forrest, a widely respected erosion control expert, to Nashville. In the spacious top-floor conference room of the downtown law firm Waller Lansden Dortch and Davis, Forrest presented her research to 50 people, including representatives of TDEC, TDOT, the attorney general’s office, the SouthWest Williamson County Community Association (SWWCCA), the original complainants, private contractors and other interested parties. Predictably, Forrest said the standards shouldn’t trigger automatic penalties.

Some people were less than impressed by the expert’s performance. “Frankly, I think everybody was a little disappointed in her presentation,” says attorney Rick Parrish of the Southern Environmental Law Center, who represents SWWCCA. “She didn’t give as much meat—data—as we were expecting. I don’t think the agencies relied on her too much.”

Apparently, though, Forrest’s words did carry quite a bit of weight with the agencies. “After [the presentation], TDOT and TDEC went back to the drawing board,” says TDOT deputy general counsel John Reinboldt. “We said, 'Let’s see if we can do this a better way.’ ”

The result of this do-over is a revised consent order that some decry as “a big step backward” and others praise as the figurative groundwork for “one of the better, if not the best” stormwater management programs in the country. But even the revised order’s detractors seem impressed with the level of commitment TDEC and TDOT are showing to the task of reforming erosion control—and more broadly, reforming the way the two agencies do business. “I think TDEC and TDOT are determined to strengthen the stormwater management program,” Parrish says. “If we get some stuff out of this but not everything we want, we’re not necessarily going to leave the table or go back to court. We’ll have to wait and see.”

What they’re waiting to see is whether TDOT and its road-building contractors will follow through with commitments to monitor and evaluate the environmental impact of their projects. There’s been no shortage of lip service paid lately—from people as prominent as the governor—to lofty notions of government that’s accountable and responsive to the will of its citizens. Everyone acknowledges that TDOT is well versed in good ol’ boy-style, greased-palm politics; the question critics raise is whether the department can successfully extricate itself from long-standing incestuous relations with the private sector as well as with other government agencies.

Betsy Child thinks it can. She’s TDEC’s commissioner, on the job since Bredesen appointed her in January. It’s her agency’s job to enforce state and federal environmental laws, and, you’ll recall, it was TDEC’s alleged failure to enforce those laws on TDOT’s 840 project that prompted legal action in the first place.

“The governor made it very clear to [TDOT] Commissioner Nicely and me that he expected us to take a leadership role in fixing the issues between our departments,” she says.

Though sensitive to accusations that TDEC and TDOT have had a too-cozy relationship in the past, Child rejects the notion that the two departments must be adversaries. Instead, she argues that the two can collaborate constructively. “We will be working hand in hand, focusing on doing work on the front end...with strong public review and input,” she says. “If it gets to a consent order, we’ve failed.”

But the 840 erosion control mess in Williamson County has gotten to a consent order. So is it too late for this project—and these watersheds—to be salvaged? Not according to Ed Cole, TDOT’s new chief of environment and planning, a position officially created last week in a ceremonious bill signing by the governor. Reporting directly to his old colleague from the Metro Development and Housing Authority (MDHA) days, TDOT director Gerald Nicely, Cole knows his newly created job will be no small task.

“The only way we can make these changes is if the culture and the mind-set at TDOT embraces them,” he says. “In the past, TDOT felt that as long as permitting was taken care of, it was enough. But if you wait for the enforcement stage [to deal with problems], you’re not doing your best work.”

Talking with Ed Cole can make even the most cynical TDOT watcher feel a cautious sense of optimism. And the residents of southwest Williamson county—who may well be the most cynical of TDOT watchers, and justifiably so—take their optimism with a large dose of caution. Nonetheless, all sides of this messy, muddy-watered struggle recognize that the last section of 840’s southern half will face “enormous public scrutiny,” in the words of the road builders’ attorney Weaver.

Ed Cole agrees that “real changes can still occur” on the last Williamson County segment of the road, but he maintains that “substantial changes” for the better will still happen on the current, highly controversial section. They may be occurring elsewhere too. “I agreed to do this work on one condition,” Cole says. “That everybody here was serious about making some changes. It’ll take some time, but I think things are happening.

“The proof will be in the projects.”

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