PART 1.
TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 2.
ENVIRONMENTAL REVIEW OF TRANSPORTATION
PROJECTS
The Texas Department of Transportation (department) proposes
the repeal of §2.132 concerning Gulf Intracoastal Waterway Projects
and new §§2.351 - 2.364 concerning Gulf Intracoastal Waterway
Projects.
EXPLANATION OF PROPOSED
AMENDMENTS
The purpose of this rulemaking is to reorganize and clarify the
rules of the Texas Transportation Commission (commission) concerning
the requirements for state participation in dredge disposal plans
and projects for the beneficial use of dredged materials related to
the Gulf Intracoastal Waterway. The rulemaking also removes references
in the rules to the Gulf Intracoastal Waterway Advisory Committee,
which has been
abolished.
Section 2.132, Gulf Intracoastal Waterway Projects, is repealed
and the substance of that section is revised and moved to new Subchapter
J of Chapter 2, which consists of new §§2.351 -
2.364.
New §2.351, Definitions, provides the defined terms used in
Subchapter
J.
New §2.352, Maintenance and Sponsorship of GIWW, is derived
from §2.132(b) and clarifies that the State of Texas is the non-federal
sponsor of the GIWW and the commission serves as the state's
designee.
New §2.353, Disposal Plans, is a non-substantive revision
of §2.132(c)(1) and
(2).
New §2.354, State Participation in Beneficial Use Project,
is a non-substantive revision of
§2.132(c)(3).
New §2.355, Interagency Coordination, is derived from §2.132(a)(2)
and (c)(4). The section clarifies that the U.S. Army Corps of Engineers
is responsible for overseeing and initiating coordination of projects
for the beneficial use of dredged
material.
New §2.356, Investigation of Proposed Disposal Plan or Beneficial
Use Project, is derived from §2.132(c)(5). The section recognizes
that investigations will be led by the interagency coordination team
rather than the department and that membership of interagency coordination
team is determined by the U.S. Army Corps of
Engineers.
New §2.357, Preparation of Environmental Review Document and
Public Participation, is a non-substantive revision of
§2.132(d).
New §2.358, Notification of and Assistance to Property Owners,
is a non-substantive revision of §2.132(f)(1)(A)-(C). The new
section clarifies that the department gives notification and assistance
to the owners of real property that is being acquired for a dredged
material placement area and if requested, meets with other affected
real property
owners.
New §2.359, Public Meeting, is a non-substantive revision
of §2.132(f)(1)(D) and (2). The new section clarifies that the
department may hold one or more public meetings on a proposed dredged
material placement area and clarifies where notice of all meetings
held under the section must be
published.
New §2.360, Procedures for State Acquisition of Real Property,
is a non-substantive revision of §2.132(e)(1). The new section
clarifies that the procedures provided by the section apply to a proposal
to use the real property as a dredged material placement area. It
also clarifies where notice of a plan, proposal, or project to which
the section applies must be
published.
New §2.361, Commission approval, is derived from §2.132(a)(5)
and (e)(2). The new section replaces the requirement that a beneficial
use project demonstrate "substantial" local support with a requirement
that the project demonstrate local support evidenced by an official
document from the governing body with jurisdiction over the project.
The definition of "jurisdiction" is deleted, and its substance is
integrated into the section to clarify the way in which local support
is to be shown. The new section does not include the limitation of
current §2.132(e)(2)(B)(vi)(I) and (II), which prohibits the
department from contributing more than 50 percent of the difference
between the federal share and the cost of a beneficial use project,
because such a limitation is unnecessarily restrictive. The new section
expressly provides that it applies to a proposal to use the real property
as a dredged material placement
area.
New §2.362, Agreement to Participate in Beneficial Use Project,
is a non-substantive revision of
§2.132(e)(3).
New §2.363, Participation in Existing Beneficial Use Project,
provides the procedure for state participation in an existing beneficial
use project. There is no corresponding provision in
§2.132.
New §2.364, Prohibition on Use of Funds, is a non-substantive
revision of
§2.132(e)(2)(B)(vi)(III).
FISCAL
NOTE
Stephen Stewart, Chief Financial Officer, has determined, in accordance
with Government Code, §2001.024(a)(4), that for each of the first
five years in which the proposed rules are in effect, there will be
no fiscal implications for state or local governments as a result
of the department's or commission's enforcing or administering the
proposed
rules.
LOCAL EMPLOYMENT IMPACT
STATEMENT
Mr. Geir Eilif Kalhagen, Director, Maritime Division, has determined
that there will be no significant impact on local economies or overall
employment as a result of enforcing or administering the proposed
rules and therefore, a local employment impact statement is not required
under Government Code,
§2001.022.
PUBLIC
BENEFIT
Mr. Kalhagen has determined, as required by Government Code, §2001.024(a)(5),
that for each year of the first five years in which the proposed rules
are in effect, the public benefit anticipated as a result of enforcing
or administering the rules will be the clarification and alignment
of the administrative code with current dredged material management
processes.
COSTS ON REGULATED
PERSONS
Mr. Kalhagen has also determined, as required by Government Code,
§2001.024(a)(5), that for each year of that period there are
no anticipated economic costs for persons, including a state agency,
special district, or local government, required to comply with the
proposed rules and therefore, Government Code, §2001.0045, does
not apply to this
rulemaking.
ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY
ANALYSIS
There will be no adverse economic effect on small businesses, micro-businesses,
or rural communities, as defined by Government Code, §2006.001,
and therefore, an economic impact statement and regulatory flexibility
analysis are not required under Government Code,
§2006.002.
GOVERNMENT GROWTH IMPACT
STATEMENT
Mr. Kalhagen has considered the requirements of Government Code,
§2001.0221 and anticipates that the proposed rules will have
no effect on government growth. He expects that during the first five
years that the rule would be in
effect:
(1) it would not create or eliminate a government
program;
(2) its implementation would not require the creation of new employee
positions or the elimination of existing employee
positions;
(3) its implementation would not require an increase or decrease
in future legislative appropriations to the
agency;
(4) it would not require an increase or decrease in fees paid to
the
agency;
(5) it would not create a new
regulation;
(6) it would not expand, limit, or repeal an existing
regulation;
(7) it would not increase or decrease the number of individuals
subject to its applicability;
and
(8) it would not positively or adversely affect this state's
economy.
TAKINGS IMPACT
ASSESSMENT
Mr. Kalhagen has determined that a written takings impact assessment
is not required under Government Code,
§2007.043.
COASTAL MANAGEMENT PROGRAM CONSISTENCY
REVIEW
The department determined that this rulemaking relates to actions
subject to the Texas Coastal Management Program (CMP) under the Coastal
Coordination Act of 1991, as amended (Natural Resources Code, §33.201
et seq.), because it concerns the department's rules on acquisition
of sites for the placement or disposal of dredge material from, or
the expansion, relocation, or alteration of, the Gulf Intracoastal
Waterway. The department reviewed this action for consistency with
the CMP goals and policies under the rules promulgated by the Coastal
Coordination Council, which were transferred to the General Land Office
effective December 1, 2022 (see 31 TAC §26.25, Policies for Dredging
and Dredged Material and Placement). The department has determined
that the action is consistent with applicable CMP goals and
policies.
A CMP policy applicable to this rulemaking is that dredging and
the disposal and placement of dredged material shall avoid and otherwise
minimize adverse effects to coastal areas. The proposed rules are
essentially a non-substantive revision of existing rules that does
not change dredged material management
policies.
Another CMP policy applicable to this rulemaking is to maximize
the number of Beneficial Use of Dredged Material (BUDM) projects.
This rulemaking removes unnecessary impediments to funding and implementing
BUDM
projects.
Another CMP policy applicable to this rulemaking is to encourage
collaborative partnerships between federal and non-federal interests
in order to plan, fund, and implement BUDM projects. This rulemaking
clarifies the relationship between federal and non-federal interests
in planning for BUDM
projects.
A copy of this rulemaking will be submitted to the General Land
Office for its comments on the consistency of the proposed rulemaking
with the CMP. The department requests that the public also give comment
on whether the proposed rulemaking is consistent with the CMP. Written
comments on the consistency of this rulemaking with the CMP may be
submitted at the public hearing on this rulemaking held as provided
in the PUBLIC HEARING section of this preamble or may be submitted
as provided in the SUBMITTAL OF COMMENTS section of this
preamble.
SUBMITTAL OF
COMMENTS
Written comments on the repeal of §2.132 and new §§2.351-2.364
may be submitted to Rule Comments, General Counsel Division, Texas
Department of Transportation, 125 East 11th Street, Austin, Texas
78701-2483 or to RuleComments@txdot.gov with the subject line "Maritime
Rules." The deadline for receipt of comments is 5:00 p.m. on December
11, 2023. In accordance with Transportation Code, §201.811(a)(5),
a person who submits comments must disclose, in writing with the comments,
whether the person does business with the department, may benefit
monetarily from the proposed amendments, or is an employee of the
department.
SUBCHAPTER F. REQUIREMENTS FOR SPECIFIC TYPES OF PROJECTS
AND PROGRAMS