The Texas Department of Transportation (department) adopts new §§15.140 - 15.147 concerning State Scenic Byways Program. The new §§15.140 - 15.147 are adopted with changes to the proposed text as published in the September 17, 2021, issue of the Texas Register (46 TexReg 6232). The rules will be republished.

EXPLANATION OF ADOPTED NEW SECTIONS AND AMENDMENTS

Senate Bill No. 941, 87th Legislature, Regular Session, 2021, (SB 941) amended Transportation Code, Chapter 391, for the department to create plan, design, and establish a program for designating highways as State Scenic Byways. New §§15.140 - 15.147 add provisions to Title 43, Chapter 15 that set forth how the department will implement the program.

The rules were written in a manner to provide the department with maximum flexibility due to the uncertainty surrounding the federal program. For example, at this time, the Federal Highway Administration (FHWA) has no plans to conduct a National Byway Designation call; however, a project call for the National Scenic Grants program is planned for later this fall, but neither program guidance nor an anticipated date for the call is available at this time. The department is required by statute to create the State Scenic Byway program by the end of 2021.

New §15.140, Purpose, describes the purpose of the new subchapter.

New §15.141 Definitions, supplies relevant definitions for the subchapter.

New §15.142, State Scenic Byway Program, states that the state program works in conjunction with the National Scenic Byways Program and establishes the requirements for a highway to be designated as a State Scenic Byway.

New §15.143, Eligible Entity, provides that any political subdivision is an eligible entity and that a community group may be approved by the department to be an eligible entity. The section also provides the procedure for a community group to be approved as an eligible entity.

New §15.144, Application Procedure, describes the application procedure for an entity to request the designation of a highway as a State Scenic Byway, the designation of a State Scenic Byway as a National Scenic Byway, and an application for a national scenic byway grant for a project on a State Scenic Byway.

New §15.145, Matching Funds, describes the matching fund provisions under the program and states the statutory limitation on the department's use of state funds. The section restates the substance of Transportation Code, §391.256(b)(3) and (d).

New §15.146, Outdoor Advertising Prohibited, states that outdoor advertising on a State Scenic Byway is generally prohibited. This prohibition is required under Transportation Code, §391.252. Technical corrections of the citations to the state and federal law have been made to this section, as proposed, to provide greater specificity of the applicable law.

New §15.147, Removal of Designation, authorizes the department to remove the designation of a State Scenic Byway if the roadway no longer meets the requirements under Title 23, United States Code, §162.

COMMENTS

The department received a total of 72 comments concerning the proposed draft rules. Comments were received from Scenic Texas, the Outdoor Advertising Association of Texas (OAAT), and the National Parks Conservation Association. Sixty nine of the comments were from private citizens in support of comments made by Scenic Texas.

Comment: OAAT commented on §15.142 that the rule does not properly designate criteria for becoming a state scenic byway as intended by the Legislature.

Response: The department disagrees. The proposed rules state 23 U.S.C. §162 is the guide for the State Scenic Byway Program. The intrinsic qualities as mentioned in the federal statute will be considered as part of the department's review process. The program documents will detail all of the designation requirements.

Comment: Scenic Texas commented on §15.143 that community groups should be broadly defined so that a broad range of groups would be eligible to apply.

Response: The department agrees in part and includes broad requirements for community group eligibility to ensure a wide variety of entities can participate. However, the department will not define specific criteria in the rules but rather in its program guidance and application form.

Comment: OAAT commented that a 60-day deadline for the department to process applications from community groups does not allow enough time to adequately process the application.

Response: The department agrees and revised the wording to clarify that the 60-day deadline was intended only to review whether a community group is eligible to submit an application.

Comment: Scenic Texas commented on §15.144 that a corridor management plan (CMP) should not be required. OAAT commented that the department should require a CMP for state designation.

Response: The department agrees in part. The proposed rules were drafted to provide the department with discretion regarding the requirement for the CMP and inform potential applicants of the corridor management plan requirement under the National Designation Program. However, in response to Scenic Texas' comments, the last sentence of §15.144(a) is removed and the section no longer states that a CMP could be required as part of a State Scenic Designation application. However, per FHWA requirements, the applicant will likely still have to submit a CMP as part of a National Designation application. Moreover, the CMP is required by FHWA only for the National Designation application. Also, the federal grant under the National Scenic Byway Program can be used to create the CMP. The proposed rules require that each affected local governmental entity must approve of the designation as part of the State Scenic Byway application. This requirement ensures that the public and impacted landowners are aware of the designation. The impacted landowners will be able to voice their concerns to their local government officials.

Comment: Scenic Texas commented that the requirement for concurrence in §15.144 should be removed.

Response: The department disagrees. This requirement was added to ensure that local governments are aware and approve of the designation. This requirement is consistent with the department's goal of working closely with various planning partners to ensure coordination. Moreover, the department's Memorial Highway Guidelines also require that a group seeking to designate a portion of a highway must obtain a supporting authorizing resolution or municipal ordinance. The department's staff recommends language remain as proposed.

Comment: Scenic Texas commented in §15.144 that an eligible entity should be allowed to submit an application for either National Scenic Byway Designation or funding but not required to submit both.

Response: The department agrees and revised the wording to make this clear. After §15.144(c)(1), the department has replaced "and" with "or" for clarification. The department understands the language can be interpreted to mean both applications for a grant and national designation must be submitted together. The intent was to state that eligible entity could submit an application for either a grant or national designation.

Comments: Scenic Texas commented in §15.147 that the department should "clearly state the federal criteria for de-designation in the rules so that they can be found easily by stakeholders." If not, Scenic Texas requests that the department include "a list of reasons a particular roadway may be de-designated." OAAT also commented on that "with no criteria to include a road as a state scenic byway, the method for the removal of the designation is also unclear."

Response: The department disagrees and believes that the language provides sufficient explanation. The program guidance and application form will detail the criteria and processes for both for designation and de-designation.

Comment: Scenic Texas commented that the department should keep an internal list of applications denied by the department with reasons for denial to be used to help expand the list of eligible roadways.

Response: The department disagrees, the bill language is clear as to what roadways are eligible. The department's staff respectfully declines this suggestion because doing so could suggest that the department is interested in expanding the list of eligible roadways. The expansion of the list of eligible roadways is a legislative matter.

STATUTORY AUTHORITY

The new sections are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §391.256(f), which requires the commission by rule to prohibit outdoor advertising on a State Scenic Byway.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, §391.256.