Into the Woods 

The 840 trial judge surveys the landscape—while it's still there

The 840 trial judge surveys the landscape—while it's still there

When Judge Russ Heldman declared that “Court is now in session” last week, on the seventh day of the so-called 840 trial, his honor was standing ankle deep in Copperas Creek.

Heldman’s khaki pants and hiking boots were topped by the black robes of jurisprudence, reminding his listeners—plaintiffs, defendants, attorneys, witnesses, concerned citizens, and media types—that this was not some day camp for the legal set. The judge took his court to the great outdoors of southwest Williamson County to observe firsthand the fields and streams state Route 840 would cross, while hearing expert testimony on the possible impacts of the controversial roadway and how the Tennessee Department of Transportation (TDOT) plans to mitigate those impacts.

Ultimately, Heldman will decide—based on last week’s field trip and accompanying in-court testimony—whether the state road-building agency can continue constructing the roughly 17 miles of 840 between Highway 100 and Thompson Station Road. He has already issued a temporary stop-work injunction for that stretch in response to the lawsuit filed in Williamson County Chancery Court by a group of property owners in the path of the roadway. The SouthWest Williamson County Community Association and the Heritage Foundation also join those land owners.

The plaintiffs claim that TDOT Commissioner Bruce Saltsman failed to enforce his department’s legally mandated standards in planning and building the southern loop of 840. Their suit alleges three specific violations: that TDOT did not execute a full environmental impact study for the road; that TDOT did not produce the economic impact study requested by Democratic state lawmaker Mike Williams; and that TDOT failed to get full approval from the Williamson County Commission before acquiring rights-of-way in that county.

The field trip began with a procession of SUVs, vans, trucks, and just plain cars snaking along the back roads like a cortege heading to a country funeral. Critics of 840 contend that the four-lane highway will bury a rural landscape whose pristine springs and streams are home to a rare diversity of plants and aquatic life.

The first stop for the courtroom-in-motion was the intersection of Highway 100 and 840 near Little Turnbull Creek, just short of the section under injunction. In May, 840 construction dumped a slug of mud into this creek system, causing the Turnbull-White Bluff water treatment plant to shut down for seven hours and the Tennessee Department of Energy and Conservation (TDEC) to fine TDOT $350,000, which TDOT lawyers are appealing.

Against a backdrop of earth movers roaring around red clay pyramids, TDOT engineers sporting Day-Glo caps and vests explained the erosion control measures its contractors are employing. During the tour, workers were still installing silt fences and straw bales to prevent more mud from sliding into the creek. Cynics wondered whether these workers were anticipating the predicted weekend rains or had just misjudged the time of the judge’s arrival.

The next day, Heldman’s court convened in the sun-dappled woods of Peach Hollow, at the site of Franklin Springs. Environmental consultant Barry Sulkin testified that in 1989, when the springs were supplying the city of Franklin with 450,000 gallons of drinking water a day, TDOT’s environmental assessment (EA) for 840-south failed to note even the existence of these springs. Sulkin said that if TDOT’s EA had recognized the springs, engineers could have designed around them.

In response, TDOT hydraulic engineer Paul Degges described plans to channel the multitude of springs into a concrete culvert 590 feet long—the length of two football fields. In addition to that, Degges said, 60 to 70 feet of “granular material”—the equivalent of dirt packed as tall as a six-story building—would top the culvert on which the road would rest. “This whole valley will be filled in,” Degges said. And a fact apparently lost on the bureaucrats is that Peach Hollow wouldn’t be hollow anymore.

The plaintiffs in the 840 case point to the nearby Natchez Trace Parkway as the kind of environmentally sensitive but admittedly more expensive road design they want for 840. They explain that Trace engineers favored bridges that soar over the valleys and streams, rather than culverts that plow through the landscape, with the tops of the surrounding hills cut off to form fill around the concrete canals. Bridges allow light to reach streams and wetlands, which maintains the plants and the small organisms that are the food supply for fish and frogs. That’s in contrast to culverts, which are dark, lifeless tunnels that intimidate the movement of aquatic animals. TDOT sources say the design for the stretch of road under injunction includes approximately 15 stream-crossing bridges and a whopping 100 culverts.

Such a radical reworking of Nature in Peach Hollow might be excusable under certain circumstances. S.R. 840 isn’t one of them. A road carrying jobs to an isolated poverty pocket might justify such hefty financial ($6.3 million a mile) and environmental costs. But Williamson County Executive Clint Callicott says that 840 “won’t increase business. We’re already growing commercially at a great rate.” Callicott also notes that the unemployment rate in Williamson County is a miniscule 1.5 percent.

TDOT’s ultimate line of defense is that its engineers have the degrees and the experience to design and build roads that respect the environment, and that the citizens of Tennessee should just trust them to do so. In her questioning of the state’s only two witnesses—engineers Paul Degges and Dennis Cook—assistant attorney general Phyllis Childs stressed their education and their professional responsibility to comply with water quality regulations and pull the proper permits. The engineers talked of “rain events” and “flood events” as if the processes of nature were as staged as a ride at Disneyland.

Heldman’s sharp questioning about the alleged weakness of TDOT’s environmental assessment provoked telling testimony from the state’s engineers. “We’re too far down the road to look at alternative locations” for the roadway, Cook said. “But we can solve any problems we encounter during the design and construction phase. Our intent is not to have any impact on the seeps and streams and habitat, but we can’t guarantee that.”

Even more damning was Degges’ testimony. “If we pollute the creeks they can report us,” he said later.

TDOT’s track record suggests that the department should set aside some of its millions for a “rain event” day. In March, TDOT agreed to TDEC’s demands for a cash penalty and environmental clean-up of just over $3 million for violating the Tennessee Waste Disposal Act, the Tennessee Hazardous Waste Act, and the Water Quality Control Act. TDEC reps said this was the second largest civil penalty in state history, behind only the fines for federal environmental violations at Oak Ridge.

After years of being ignored, the road’s critics are thrilled that Judge Heldman has plunged into the sediment-filled waters of the 840 case. He has set closing arguments for Oct. 5, after attorneys for both sides file written summaries of their respective cases. Lawyers predict that the judge will make his ruling within a week or so after that. And both sides expect that the case will ultimately reach the Tennessee Supreme Court.

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