PART 1. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 2. ENVIRONMENTAL POLICY
SUBCHAPTER A. ENVIRONMENTAL REVIEW AND PUBLIC INVOLVEMENT FOR TRANSPORTATION PROJECTS
The Texas Department of Transportation (department) adopts amendments to §2.1, concerning general and emergency action procedures for environmental review and public involvement requirements for transportation projects. The amendments to §2.1 are adopted in conjunction with the adopted repeal of 43 TAC §11.56 and new 43 TAC §11.56, relating to connection with a regionally significant highway. The amendments to §2.1 are adopted without changes to the proposed text as published in the March 6, 2009, issue of the Texas Register (34 TexReg 1547) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Transportation Code, Chapter 203 provides that the Texas Transportation Commission (commission) may lay out, construct, maintain, and operate a modern state highway system. Transportation Code, §201.604, requires the commission by rule to provide for the commission's environmental review of the department's transportation projects that are not subject to review under the National Environmental Policy Act (42 U.S.C. §4321 et seq.)
Senate Bill 792 (SB 792), 80th Legislature, 2007, granted local authorities the first option in building projects within their jurisdictions and provided those authorities with the powers to construct and complete those projects in a manner consistent with the practices and procedures by which the local authority finances, constructs, or operates a project. Senate Bill 792 also authorized the department to assist those authorities in the completion of projects by providing use of the right of way owned by the department and access to the state highway system without requiring payment for those resources. The amendments to §2.1 allow the local governments to follow their own environmental review for those projects.
Amendments to §2.1(b)(3) divide the paragraph into subparagraphs (A) and (B). New §2.1(b)(3)(A)(ii) exempts a project developed by a local governmental entity under Transportation Code, §228.011 or §228.0111, from the environmental review and public involvement requirements of 43 TAC Chapter 2, Subchapter A, because of the local control requirements of SB 792. Transportation Code, §228.011 includes the following county toll projects: Beltway 8 Tollway East, between US 59 North and US 90 East; Hardy Downtown Connector, consisting of the proposed direct connection from the Hardy Toll Road southern terminus at Loop 610 to downtown Houston; State Highway 288, between US 59 and Grand Parkway South (State Highway 99); US 290 Toll Lanes, between IH 610 West and the Grand Parkway Northwest (State Highway 99); Fairmont Parkway East, between Beltway 8 East and Grand Parkway East (State Highway 99); South Post Oak Road Extension, between IH 610 South and near the intersection of Beltway 8 and Hillcroft in the vicinity of the Fort Bend Parkway Tollway; Westpark Toll Road Phase II, between Grand Parkway (State Highway 99) and FM 1463; Fort Bend Parkway, between State Highway 6 and the Brazos River; and Montgomery County Parkway, between State Highway 242 and the Grand Parkway (State Highway 99). Transportation Code, §228.0111, includes a project that is not covered by Transportation Code, §228.011, and that is constructed by a regional tollway authority under Transportation Code, Chapter 366, a regional mobility authority under Transportation Code, Chapter 370, or a county acting under Transportation Code, Chapter 284.
New §2.1(b)(3)(B) provides that in the agreement for a project excepted under §2.1(b)(3) the department must ensure that the entity responsible for the project complies with all state and federal environmental review and public involvement laws applicable to the entity. This amendment is necessary to conform the provision to changes made by new §2.1(b)(3)(A)(ii).
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.604, which requires the commission by rule to provide for the commission's environmental review of the department's transportation projects that are not subject to review under the National Environmental Policy Act (42 U.S.C. §4321 et seq.).
CROSS REFERENCE TO STATUTE
Transportation Code, §§201.604, 228.011, and 228.0111.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 1, 2009.
TRD-200901628
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: May 21, 2009
Proposal publication date: March 6, 2009
For further information, please call: (512) 463-8683
SUBCHAPTER C. ACCESS CONNECTIONS TO STATE HIGHWAYS
The Texas Department of Transportation (department) adopts the repeal of §11.56 and new §11.56, concerning connection with regionally significant highway. The repeal of §11.56 and new §11.56 are adopted in conjunction with amendments to 43 TAC §2.1, relating to general and emergency action procedures for environmental review and public involvement requirements for transportation projects. The repeal of §11.56 and new §11.56 are adopted without changes to the proposed text as published in the March 6, 2009, issue of the Texas Register (34 TexReg 1549) and will not be republished.
EXPLANATION OF ADOPTED REPEAL AND NEW SECTION
Transportation Code, Chapter 203 provides that the Texas Transportation Commission (commission) may lay out, construct, maintain, and operate a modern state highway system.
Due to the significant cost associated with the construction and maintenance of highways, it is imperative that the highway system provide maximum traffic handling capacity and reasonable access for as long as practical. Access management is one method of preserving the substantial investment in the ground transportation system by preserving the roadway level of service. Adjacent development and uncontrolled access points along highways can contribute to congestion and early deterioration of the operation of the highway, thereby reducing the ability of the state highway system to safely and efficiently move higher volumes of traffic. Access management is an engineering and planning method of balancing the needs of mobility and safety on a highway system with the needs of access to adjacent land. Access management can significantly enhance traffic safety by reducing traffic accidents, personal injury, and property damage. Access management promotes a more coordinated intergovernmental, long term approach to land use and transportation decisions in the context of quality of life, economic development, livable communities, and public safety.
Transportation Code, Chapter 228, provides general authority for state highway toll projects. Senate Bill 792 (SB 792), 80th Legislature, 2007, added provisions to Transportation Code, Chapter 228 that granted local authorities the first option for building toll projects within their jurisdictions and provides the local authorities with the powers to construct and complete these projects. Senate Bill 792 also authorized the department to assist the local authorities in the completion of projects by providing the use of the right of way owned by the department and access to the state highway system without requiring payment for those resources.
Current §11.56 assigns broad environmental review and approval authority to the department, and requires a public or private entity to comply with 43 TAC Chapter 2, Subchapter C to connect a regionally significant highway to a segment of the state highway system. Current §11.56 is being repealed and replaced with a new §11.56. The rule changes the focus of the environmental requirements on the projects' connection to the state highway system.
New §11.56 is added to provide a uniform means by which public and private entities with the authority to construct, maintain, and operate regionally significant highway facilities may obtain permission to connect those facilities to the state highway system. While most such entities are required to obtain commission approval to construct regionally significant highways, certain entities with independent authority may construct regionally significant highways that do not necessarily conform to the Transportation Improvement Program (TIP). Adding regionally significant highways that are not in the TIP, especially in non-attainment areas, can threaten the entire area's transportation conformity under the federal Clean Air Act, resulting in sanctions that could severely hamper the state's federal highway program. The current rules govern connection to the state highway system, but do not give the department the ability to deny connections based on these conformity concerns, design and construction issues, or noncompliance with federal requirements. This new rule will ensure that proper statewide planning is employed in the construction of major highway facilities that connect to the state highway system, that the facilities are properly designed and constructed in compliance with federal laws, and that environmental impacts are adequately considered.
New §11.56(a), Purpose, provides the purpose of the section and is the same as the current subsection (a). It requires approval from the commission for a connection from a regionally significant highway to a segment of the state highway system.
New §11.56(b), Request, requires the entity seeking approval to send to the executive director a written request containing a detailed schematic indicating the location of the connection, an overpass, underpass, intersection, or interchange, and the location of the logical termini of the connection. This differs from current subsection (b) which requires a schematic indicating the location of interchanges and mainlanes.
New §11.56(c), Approval criteria, authorizes the commission to approve a request if the highway to be connected is identified in a conforming TIP, the requestor agrees to use the department's design and construction criteria as set out in §11.56(d), and the requestor satisfies the applicable requirements concerning public involvement and impacts of the connection set out in §11.56(e). The requirement of compliance with §11.56(e) ensures public involvement in the process and that the social, environmental, and economic impacts of the connection are considered.
New §11.56(c) is similar to current subsection (c). However, current subsection (c) contains a process for waiving the design and construction requirements and the environmental requirements for the part of the project that is not a connection. The waivers are omitted from the new subsection as unnecessary because the subsection applies only to the connection area of a project.
New §11.56(d), Design and construction, specifies that the design and construction criteria set forth in 43 TAC §26.33 apply for purposes of the subsection. The new subsection is essentially the same as the current subsection (d).
New §11.56(e)(1), Environmental review and public involvement, specifies that subsection (e) applies only to construction activities and utility adjustments within rights of way owned by the department and, if a terminus of the proposed connection is outside of the department's right of way, between the connection terminus and the department's right of way. Focusing the environmental review and public involvement on the connection portion of the project addresses the state's requirements concerning adequate consideration of environmental, safety, and mobility concerns.
New §11.56(e)(2) exempts from the environmental review and public involvement requirements local authority projects developed under Transportation Code, §228.011 or §228.0111, and projects that the department funds solely with money held in a project subaccount created under Transportation Code, §228.012. Senate Bill 792 requires that the local authority have the primary authority for the projects in a manner consistent with the practices and procedures by which the local authority finances, constructs, or operates a project and requires the commission and the department to allow the local authority access to the state highway system.
New §11.56(e)(3) requires the requestor to perform and document all environmental studies, environmental compliance, and public involvement activities. Section 11.56(e)(3) clarifies that the requestor's environmental compliance and public involvement activities will not be performed under memoranda of agreement, programmatic agreements, or other environmental agreements between the department and a state or federal agency as the project sponsor is performing the environmental compliance and public involvement. To ensure that stakeholders' interests and concerns are addressed, the requestor is required to apply for, obtain, and comply with all permits and approvals required by state and federal law, and to establish all commitments needed to address public, state agency, and federal agency concerns.
New §11.56(e)(4) requires that the environmental documents, environmental studies, environmental compliance, and public involvement activities must comply with the requirements of 43 TAC Chapter 2, Subchapter A, relating to Environmental Review and Public Involvement for Transportation Projects.
New §11.56(e)(5) requires the requestor to submit the environmental documents and supporting documentation to the department to ensure that the documentation is completed and to provide department review of the documentation. The department reviews and determines whether or not the requestor has completed agency coordination relating to the environmental review of the proposed access connection, and has responded to public comments.
New §11.56(e)(6) provides that if Federal Highway Administration (FHWA) regulations specify that a project or connection requires FHWA approval, the requestor has to perform the necessary environmental and public involvement activities and produce an environmental document that meets FHWA requirements.
New subsection (e) differs significantly from current subsection (e) because the process is being changed to streamline the process and to allow for more local responsibility for the performance of environmental review and public involvement in that review.
COMMENTS
No comments on the proposed repeal of §11.56 and new §11.56 were received.
STATUTORY AUTHORITY
The repeal is adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.604, which requires the commission by rule to provide for the commission's environmental review of the department's transportation projects that are not subject to review under the National Environmental Policy Act (42 U.S.C. §4321 et seq.), and Transportation Code, §203.031, which provides the commission with the authority to control access to highways.
CROSS REFERENCE TO STATUTE
Transportation Code, Chapter 203, and Transportation Code, §§201.604, 228.011, and 228.0111.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 1, 2009.
TRD-200901629
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: May 21, 2009
Proposal publication date: March 6, 2009
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The new section is adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.604, which requires the commission by rule to provide for the commission's environmental review of the department's transportation projects that are not subject to review under the National Environmental Policy Act (42 U.S.C. §4321 et seq.), and Transportation Code, §203.031, which provides the commission with the authority to control access to highways.
CROSS REFERENCE TO STATUTE
Transportation Code, Chapter 203, and Transportation Code, §§201.604, 228.011, and 228.0111.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 1, 2009.
TRD-200901630
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: May 21, 2009
Proposal publication date: March 6, 2009
For further information, please call: (512) 463-8683