| (a) The project sponsor will seek to avoid and minimize
adverse environmental impacts.
(b) If adverse environmental impacts cannot be avoided,
and efforts to minimize those impacts have been exhausted, the project
sponsor may, in consultation with the department delegate and appropriate
agency or agencies, propose compensatory mitigation, in accordance
with this section, that will be included in an environmental review
document. Compensatory mitigation may rectify impacts by repairing,
rehabilitating, or restoring the affected environment, or by replacing
or providing for substitute resources or environments.
(c) For a transportation project developed by the department,
the project sponsor may propose as compensatory mitigation any of
the actions described by this subsection.
(1) Under Transportation Code, §201.606, if the
department acquires for a transportation project property that is
habitat of one or more species listed as endangered under the Endangered
Species Act (16 U.S.C. §1531 et seq.) and the property is within
the boundaries of a regional habitat conservation plan, the department
may participate in the regional habitat conservation plan.
(2) If the comptroller has designated the department
to undertake functions under Government Code, Chapter 403, Subchapter
Q (relating to Support for Habitat Protection Measures), the department
may develop or coordinate the development of a habitat conservation
plan or candidate conservation plan in accordance with that subchapter,
or undertake any other actions authorized under that subchapter.
(d) For a highway project developed by the department,
the project sponsor may propose as compensatory mitigation any of
the actions described by this subsection, in addition to those described
in subsection (c) of this section.
(1) Under Transportation Code, §201.617, if authorized
by the appropriate regulatory agency or agencies, the department may
undertake any of the following as compensatory mitigation for adverse
environmental impacts that are a direct result of the construction,
improvement, or maintenance of a state highway or the construction,
improvement or maintenance of a facility used in connection with the
construction, maintenance, or operation of a state highway:
(A) payment of a fee to an appropriate public agency
or private entity in lieu of acquiring or agreeing to manage property;
(B) the transfer of any interest in real property to
an appropriate public agency or private entity with or without monetary
consideration if the property is used or is proposed to be used for
mitigation purposes; or
(C) a contractual agreement with any public or private
entity for the management of property owned by the department and
used for mitigation purposes.
(2) Under Transportation Code, §201.617, before
the department acquires by purchase or condemnation real property
to mitigate an adverse environmental impact that is the direct result
of a state highway improvement project, the department will, if authorized
by the appropriate regulatory authority, offer to purchase a conservation
easement from the owner of the real property. If the landowner does
not accept the offer before the 61st day after the date the offer
is made, the department may acquire the property by purchase or condemnation.
(3) Under Transportation Code, §203.052, the department
may acquire an interest in real property, a property right, or a material
under Transportation Code, §203.051, if the commission determines
that the acquisition is necessary or convenient to mitigate an adverse
environmental effect that directly results from construction or maintenance
of the state highway system.
(4) Under Transportation Code, §201.610, the department
may erect a sound barrier to reduce noise from a road or highway on
the state highway system.
(e) For highway projects for which a local government
is the project sponsor and is responsible for mitigation, the local
government may, in consultation with the department delegate and the
appropriate agency or agencies, propose compensatory mitigation in
any of the forms listed in subsection (c) or (d) of this section,
or in any other form authorized by law. If the project concerns a
segment of the state highway system, this chapter does not prevent
a local government sponsor from seeking to use a department-funded
mitigation bank for compensatory mitigation on a given project. However,
as between the department and a local government sponsor, use of such
a mitigation bank, and the terms of that use, will be decided by the
department at its sole discretion.
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