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TITLE 43TRANSPORTATION
PART 1TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 2ENVIRONMENTAL REVIEW OF TRANSPORTATION PROJECTS
SUBCHAPTER FREQUIREMENTS FOR SPECIFIC TYPES OF PROJECTS AND PROGRAMS
RULE §2.132Gulf Intracoastal Waterway Projects

(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.

  (1) Beneficial use project--The productive and positive use of dredged material as proposed by the U.S. Army Corps of Engineers.

  (2) Federal interagency coordination team--A group established to review proposed federal development projects related to the Gulf Intracoastal Waterway and whose duties include advising on the determinations of consistency with the Texas Coastal Management Program.

  (3) (GIWW) Gulf Intracoastal Waterway--The main channel, not including tributaries or branches, of the shallow draft navigation channel running from the Sabine River southward along the Texas coast to the Brownsville Ship Channel near Port Isabel.

  (4) (GIWAC) Gulf Intracoastal Waterway Advisory Committee--An interagency committee comprised of members appointed by the department to represent state agencies having jurisdiction in the protection of the state's natural, historic, and economic resources. The GIWAC is created for the purpose of advising and assisting the department:

    (A) in developing a unified method to address problems and recommend solutions for the needs of the GIWW, for the protection of the environment and the state's natural and historic resources affected by the GIWW, and for the promotion of the economic welfare of the state's interest in the GIWW;

    (B) in developing proposals for a disposal plan or a beneficial use project that will address dredged material disposal involving a segment of the GIWW identified by the U.S. Army Corps of Engineers as in need of maintenance dredging; and

    (C) on the acquisition of disposal sites in an environmentally sensitive and operationally suitable manner.

  (5) Jurisdiction--

    (A) for a city, the area within the incorporated city limits and the extraterritorial jurisdiction of a city; and

    (B) for a county, any area within the boundaries of that county, excluding incorporated areas and areas within the extraterritorial jurisdiction of a city.

(b) Federal and nonfederal sponsorship. The U.S. Army Corps of Engineers is responsible for maintaining the GIWW. The commission, under Transportation Code, Chapter 51, is the nonfederal sponsor of the GIWW.

(c) Initiation of proposed disposal plans or beneficial use projects.

  (1) Disposal plan. The department may participate in the development of a disposal plan for dredged material.

  (2) Laguna Madre disposal plans. Legislative approval is necessary for any substantive changes to the disposal plan developed for the Laguna Madre reach of the GIWW dated October 11, 2002.

  (3) Beneficial use project. The department may participate in the development of a beneficial use project for dredged material.

    (A) Proposals. The department will accept from the U.S. Army Corps of Engineers proposals for beneficial use projects in the broad use categories of:

      (i) habitat development;

      (ii) beach nourishment;

      (iii) aquaculture;

      (iv) parks and recreation;

      (v) agriculture, forestry, and horticulture;

      (vi) strip mine reclamation and solid waste management;

      (vii) shoreline stabilization and erosion control;

      (viii) construction and industrial use;

      (ix) material transfer, such as transfer for fill, dikes, levees, parking lots, roads; and

      (x) multiple purposes, which is a combination of two or more of the categories listed in this subparagraph on a single dredging project.

    (B) Submittal of proposals. The U.S. Army Corps of Engineers will submit proposals in writing to the executive director or the executive director's designee. The proposals will include:

      (i) a description of the proposed beneficial use project and anticipated benefits;

      (ii) a map delineating the location or locations of the proposed beneficial use project;

      (iii) a proposed project schedule including an anticipated completion date;

      (iv) a detailed estimate of the project cost, including an estimate of the U.S. Army Corps of Engineers' financial contributions to the project; and

      (v) a plan addressing the operation and maintenance of the facility created by or benefiting from the beneficial use project.

  (4) Early coordination. The department will initiate and oversee early coordination with appropriate state and federal agencies to develop a proposal for disposal plans or beneficial use projects.

  (5) Investigation.

    (A) The department will use a task force to investigate disposal plans and beneficial use projects and evaluate the environmental and operational suitability of each. The task force will include representatives from state and federal agencies having jurisdiction in the protection of the state's natural, historic, and economic resources, and the GIWAC or federal interagency coordination team.

    (B) The department or U.S. Army Corps of Engineers will lead any field investigations. The task force agencies will be requested to participate in field investigations and to provide to the department written evaluations of the disposal plans and beneficial use projects investigated.

    (C) The GIWAC or federal interagency coordination team will review the investigations and discuss with the department any proposed disposal alternatives or beneficial use projects.

(d) Preparation of environmental review document. Upon the identification of a disposal proposal or beneficial use proposal related to the GIWW, the department will assist with the preparation of the environmental review document by the U.S. Army Corps of Engineers under 42 U.S.C. §§4321 et seq. and applicable federal rules. The department will assist with any public participation process conducted by the U.S. Army Corps of Engineers.

(e) Procedures for state acquisition of real property. If the commission proposes the acquisition of real property necessary to enable it to meet its responsibilities as the nonfederal sponsor of the GIWW, or if the commission proposes to participate in the cost of a project to beneficially use dredge material that requires the acquisition of an interest in real property, the commission will complete the following procedures.

  (1) Public hearing. The commission, through the department, will hold a public hearing to receive evidence and testimony concerning the desirability of the plan or project.

    (A) The department will publish notice of a plan or project and the date, time, and place of a hearing at least once a week for three successive weeks before the hearing in a newspaper of general circulation that is published in the county seat of each county in which any part of a proposed dredge material disposal site, channel alteration, or beneficial use project would be located.

    (B) The commission also will publish notice of the hearing in at least one edition of the Texas Register.

    (C) The department will also publish notice of the hearing on the department's website.

    (D) The U.S. Army Corps of Engineers' environmental documents and findings will be on display at the public hearing.

    (E) Comments, testimony, or evidence may be given in person or in writing during the public hearing or may be submitted in writing to the department during the prescribed public comment period.

  (2) Commission approval. After the public hearing the commission may approve a plan or project under this paragraph, and implement it including the acquisition of real property, if it determines the following:

    (A) The proposed plan or project can be accomplished without an unjustifiable waste of publicly or privately owned natural resources or a permanent and substantial adverse impact on the environment, wildlife, or fisheries.

    (B) For a project to beneficially use dredge material, in addition to the requirements of subparagraph (A) of this paragraph, the project:

      (i) is proposed by the U.S. Army Corps of Engineers;

      (ii) proposes one or more beneficial use activities having a direct relationship of function or impact to the GIWW;

      (iii) has substantial local support, as evidenced through the public participation process and documentation, including, at a minimum, a resolution or other official document from the governing body of the city or county with jurisdiction over the project area or if the project area is located in more than one jurisdiction, from the governing body of the city or county within which a majority of the project area is located, in consultation with the other involved jurisdictions. For the purposes of this clause, the jurisdiction of a city is the area within the incorporated limits and the extraterritorial jurisdiction of the city, and the jurisdiction of a county is the area within the boundaries of the county, excluding incorporated areas and areas within the extraterritorial jurisdiction of a city;

      (iv) is limited to a logical unit of work and capable of being implemented and completed within a reasonable time as determined by the department;

      (v) is consistent with the Texas Coastal Management Program; and

      (vi) is consistent with the financial participation requirements of this clause.

        (I) The commission will establish an eligible cost of the proposed beneficial use project by calculating the total estimated cost of the project in excess of the established federal standard for dredged material disposal. Except as provided in subclause (II) of this clause, the department's financial participation in the project will not exceed 50 percent of eligible cost.

        (II) The commission may authorize participation at levels exceeding 50 percent if the commission determines the additional participation will result in extraordinary environmental or economic benefits or the costs are reasonably comparable to the costs of providing property to accommodate traditional upland disposal.

        (III) Department funding may not be used for maintenance or operation of a beneficial use project.

  (3) Commission agreement. If the commission approves department participation in a beneficial use project, the commission will enter into an agreement with the U.S. Department of the Army to participate in the cost of the project.

(f) Public participation for state acquisition of real property. Before conducting a public hearing required by subsection (e) of this section, the department will conduct the following additional public participation.

  (1) Preliminary involvement.

    (A) The department will notify a public or private landowner of a parcel's environmental and operational suitability for the proposed disposal plan or beneficial use project, and offer to meet with the landowner to answer any questions about the proposed disposal plan or beneficial use project.

    (B) The department also will notify the landowner of any public meeting or public hearing on the proposed disposal plan or beneficial use project.

    (C) Meetings on the proposed disposal plan or beneficial use project, as one form of public participation, will be held with individuals owning property adjacent to the project and with other affected property owners, such as businesses and governmental entities that may be affected, if those individuals or owners request such a meeting.

    (D) Public meetings, as another form of public participation, may be held in accordance with paragraph (2) of this subsection.

  (2) Public meetings. Notice of a public meeting will be advertised through legal notices in a newspaper of general circulation published in the county seat of each county in which the proposed dredged material disposal plan or beneficial use project is located. The notice will also be posted on the department's website.


Source Note: The provisions of this §2.132 adopted to be effective April 16, 2012, 37 TexReg 1727

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