82R12085 T
By: Schwertner H.B. No. 3742
A BILL TO BE ENTITLED
AN ACT
relating to the environmental review of certain transportation
projects by the Texas Department of Transportation
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 201, Transportation Code, is amended by
adding Subchapter P to read as follows:
SUBCHAPTER P. OPTIONAL ENVIRONMENTAL REVIEW PROCESS
FOR LOCALLY-SPONSORED PROJECTS
Sec. 201.1001 DEFINITIONS. In this Subchapter:
(1) "Environmental decision" means:
(A) for state review projects, the department's
approval of a categorical exclusion, a finding of no significant
impact, the findings of a re-evaluation, or the execution of a
record of decision;
(B) for federal review projects, the
Department's submission of an environmental document to FHWA for
approval.
(2) "Federal review project" means any project that is
subject in its entirety to federal review under the National
Environmental Policy Act (42 U.S.C. 4321, et seq.), Section 4(f),
Department of Transportation Act of 1966 (23 U.S.C. 138 and 49
U.S.C. 303), and FHWA regulations (23 C.F.R. Parts 771, 772 and
774).
(3) "FHWA" means the Federal Highway Administration of
the U.S. Department of Transportation.
(4) "Project," including within the terms "state
review project" and "federal review project" means a highway or
related improvement on the state highway system. For the purposes
of this subchapter, "highway," "improvement" and "state highway
system" shall have the meanings assigned by Section 221.001.
(5) "Sponsor" means a political subdivision of the
state, including a municipality or a county, a political
subdivision of a county, a group of adjoining counties, a district
organized or operating under Section 52, Article III, or Section
59, Article XVI, Texas Constitution, a regional tollway authority
created under Chapter 366, a regional mobility authority operating
under Chapter 370, or a nonprofit corporation, including a
transportation corporation created under Chapter 431.
(6) "State review project" means a transportation
project subject to environmental review by the department, but not
subject to federal review.
Sec. 201.1002. CONSTRUCTION COSTS DEFINED. (a) The cost of
acquisition, construction, improvement, extension, or expansion of
a project under this chapter includes the cost of:
(1) the actual acquisition, construction,
improvement, extension, or expansion of the project;
(2) the acquisition of real property, rights-of-way,
property rights, easements, and other interests in real property;
(3) machinery and equipment;
(4) interest payable before, during, and for not more
than three years after acquisition, construction, improvement,
extension, or expansion as provided in the bond proceedings;
(5) traffic estimates, revenue estimates, engineering
and legal services, plans, specifications, surveys, appraisals,
construction cost estimates, and other expenses necessary or
incidental to determining the feasibility of the acquisition,
construction, improvement, extension, or expansion;
(6) necessary or incidental administrative, legal,
and other expenses;
(7) compliance with laws, regulations, and
administrative rulings, including any costs associated with
necessary environmental mitigation measures;
(8) financing;
(9) the assumption of debts, obligations, and
liabilities of an entity relating to a project transferred to an
authority by that entity; and
(10) expenses related to the initial operation of the
project.
(b) Costs attributable to a transportation project and
incurred before the issuance of bonds to finance the project may be
reimbursed from the proceeds of sale of the bonds.
Sec. 201.1003. PURPOSES. The purposes of this subchapter
are to:
(1) increase public safety;
(2) ensure timely compliance with environmental
review requirements;
(3) enhance a sponsor's ability to participate in
project development; and
(4) prevent delays that substantially increase the
cost of transportation projects.
Sec. 201.1004. ELIGIBILITY. (a) A project qualifies for
review under the procedures required by this subchapter if the
sponsor retains, at its own expense, qualified consultants and
legal counsel to ensure the preparation of draft environmental
documents in compliance with applicable law and either:
(1) assumes at least 25 percent of project
construction costs as defined by Section 201.1002, either on a
permanent or pass-through basis; or
(2) pays an application fee equal to one percent of the
estimated project construction costs as defined by Section
201.1002.
(b) The eligibility of a project under Subsection (a)(1) of
this section shall not be affected by:
(1) an agreement for reimbursement of some or all
project costs between the sponsor and the department, another
agency or political subdivision of the state, the federal
government or any other public or private entity; or
(2) the acceptance by the sponsor of funds paid under
an agreement described by Subsection (b)(1).
Sec. 201.1005. INITIATION OF ENVIRONMENTAL REVIEW PROCESS.
A sponsor initiates the environmental review process under this
subchapter by submitting to the department a declaration of intent
to proceed that contains the following:
(1) a certification of the project's eligibility under
Section 201.1004(a)(1) or payment of the application fee under
Section 201.1004(a)(2);
(2) a statement of qualifications for the engineers,
consultants and legal counsel retained to provide services in
connection with the environmental review and permitting process;
and
(3) a proposed memorandum of agreement to initiate
negotiations under Section 201.1006.
Sec. 201.1006. MEMORANDUM OF AGREEMENT. (a) The department
shall enter into a memorandum of agreement with a sponsor who elects
to proceed under this subchapter not later than 45 days after the
date that the sponsor's notice of intent is received by the
Department. Subject to the requirements of subsections (b) and
(c), the agreement must:
(1) describe the purpose and need of the project;
(2) establish the scope of review;
(3) provide plans for public involvement, agency
coordination and legal sufficiency review;
(4) provide for the coordination of environmental
review and permitting procedures;
(5) include a schedule and related deadlines for tasks
to be performed by the sponsor, which may include delivery of draft
environmental documents, development of comment responses and
revisions to documents, elements of the public involvement and
agency coordination process, and negotiating the issuance of
permits and securing related mitigation; and
(6) include a schedule and related deadlines for tasks
to be performed by the department, including review and provision
of comments on documents, elements of the public involvement and
agency coordination process, responses to comments, and the
issuance of an environmental decision.
(b) An agreement under this section:
(1) may include other terms relating to the
environmental review or permitting process that are mutually
acceptable to the sponsor and the department and allowed by
applicable law;
(2) may be amended only in writing with the consent of
the parties; and
(3) shall not diminish the rights of the public
regarding review and comment on projects.
(c) The department may not require the sponsor to consent to
extension of any deadline as a condition to any other approval,
consent or authorization required for the project.
Sec. 201.1007. REVIEW TIMEFRAMES. (a) The department shall
render an environmental decision on a project reviewed under this
subchapter by the date specified in the memorandum of agreement
required by Section 201.1006.
(b) If the department and the sponsor fail to execute a
memorandum of agreement by the date required in Section
201.1006(a), then the following deadlines apply:
(1) state review projects:
(A) the department shall issue a classification
letter no later than the 45th day after the date the sponsor's
request for classification is received by the department;
(B) for a project classified as a programmatic
categorical exclusion, the environmental decision must be rendered
no later than the 60th day after the date the sponsor's supporting
documentation is received by the department;
(C) for a project classified as a categorical
exclusion, the environmental decision must be rendered not later
than the 90th day after the date the sponsor's supporting
documentation is received by the department;
(D) for a project that requires the preparation
of an environmental assessment:
(i) any required notice must be submitted
to the Texas Register for publication not later than the 30th day
after the date the sponsor submits a draft notice to the department;
(ii) the department must provide the
sponsor with all department comments on a draft environmental
assessment not later than the 90th day after the date that the draft
is received by the department; and
(iv) the department must render an
environmental decision on the project not later than the 60th day
after the date that: (a) the sponsor's revised environmental
assessment is submitted to the department, or (b) the conclusion of
the public involvement process, whichever occurs later;
(E) the department must render an environmental
decision on any re-evaluation requested by the sponsor no later
than the 120th day after the date the sponsor's supporting
documentation is received by the department; and
(F) for any project that requires the preparation
of an environmental impact statement, the department shall render
an environmental decision not later than two years after the date of
the classification letter.
(2) federal review projects:
(A) the department shall submit a request for
project classification to FHWA no later than the 30th day after the
receipt of a written request from the sponsor;
(B) the requirements of Subsections (b)(1)(B)
and (b)(1)(C) shall apply with respect to those categorical
exclusions that are delegated by FHWA to the department;
(C) with respect to environmental decisions
regarding federal categorical exclusions that are not delegated to
the department:
(i) for a project classified as a
programmatic categorical exclusion, the department's environmental
decision must be presented to FHWA no later than the 60th day after
the date the sponsor's supporting documentation is received by the
department; and
(ii) for a project classified as a
categorical exclusion, the department's environmental decision
must be presented to FHWA no later than the 90th day after the date
the sponsor's supporting documentation is received by the
department;
(D) for projects requiring the preparation of an
environmental assessment:
(i) the department must provide the sponsor
with all Department comments on a draft environmental assessment
not later than the 90th day after the date that the draft is
received by the department;
(ii) the department must present the draft
environmental assessment to FHWA for review and comment not later
than the 30th day after the date that the sponsor tenders a revised
draft based on department comments made pursuant to subsection
(b)(2)(D)(i);
(iii) the department must present its
environmental decision to FHWA not later than the 60th day after the
date that: (a) the sponsor submits a revised environmental
assessment to the department based on FHWA comments received
pursuant to subsection (b)(2)(D)(ii), or (b) the conclusion of the
public involvement process, whichever occurs later.
Sec. 201.1008. RULES. (a) The department may adopt rules
for the implementation of this subchapter.
(b) The availability of the process provided by this
subchapter shall not be delayed pending the adoption of rules under
subsection (a).
Sec. 201.1009. REPORT TO LEGISLATURE. (a) not later than
December 1 of each year, the department shall submit a report to the
members of the House Committee on Transportation and the Senate
Committee on Transportation and Homeland Security regarding the
implementation of this subchapter, including a status report that
details for each project:
(1) how the project was classified for environmental
review;
(2) current status of the environmental review;
(3) date that the department is required to make an
environmental decision pursuant to a memorandum of agreement with
the project sponsor or Section 201.1006; and
(4) an explanation of any delays.
(b) The department shall provide a copy of the report
required by subsection (a) to each member of the legislature that
has at least one project covered by the report in their district.
Sec. 201.1010. ENFORCEMENT. (a) This chapter may be
enforced only through mandamus or declaratory relief.
(b) The Department's immunity from suit is waived in regard
to an action brought by a sponsor under this Chapter.
(c) A sponsor's immunity from suit is waived in regard to an
action brought by the Department under this Chapter.
SECTION 2. TRANSITION. A sponsor may initiate the optional
procedures provided under this Act regarding any eligible
transportation project for which the department has not issued an
environmental decision as of the effective date of this Act.
SECTION 3. EFFECTIVE DATE. This Act takes effect
immediately if it receives a vote of two-thirds of all the members
elected to each house, as provided by Section 39, Article III, Texas
Constitution. If this Act does not receive the vote necessary for
immediate effect, this Act takes effect September 1, 2011.