The online public comment period is 08:00 a.m. July 19, 2013, through 05:00 p.m. August 21, 2013.
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MEMORANDUM OF UNDERSTANDING BETWEEN
THE TEXAS DEPARTMENT OF TRANSPORTATION
AND THE TEXAS PARKS AND WILDLIFE DEPARTMENT
PROPOSAL PREAMBLE
The Texas Parks and Wildlife Department proposes an amendment to §69.71, concerning Memorandum of Understanding between the Texas Parks and Wildlife Department and the Texas Department of Transportation.
The proposed rule would adopt by reference a Memorandum of Understanding (MOU) between the Texas Parks and Wildlife Department (TPWD) and the Texas Department of Transportation (TxDOT) concerning transportation projects and highway improvement projects (“TxDOT construction projects” or “projects”).
Transportation Code, §201.607, requires TxDOT to adopt an MOU with each state agency that has responsibility for the protection of the natural environment, which includes TPWD. Among other things, the MOU must address “the responsibilities of each agency entering into the memorandum relating to the review of the potential environmental . . . effect of a highway project.” Transportation Code, §201.607, also requires TxDOT to adopt the memoranda and all revisions by rule and to examine and revise the memoranda every five years. In addition, §201.607 requires each agency that is a party to the MOU to adopt revisions to the MOU by rule.
Under Parks and Wildlife Code, §12.0011, TPWD is the state agency with primary responsibility for protecting the state’s fish and wildlife resources. This section also requires TPWD to provide “recommendations that will protect fish and wildlife resources to local, state, and federal agencies that approve, permit, license, or construct developmental projects” and to provide “information on fish and wildlife resources to any local, state, and federal agencies or private organizations that make decisions affecting those resources.”
The MOU is intended to implement the statutory obligations of both TxDOT and TPWD regarding review of projects covered by the MOU for impacts to natural resources.
The current MOU between TPWD and TxDOT (43 TAC §2.22) provides for TPWD review of TxDOT projects that have the potential to affect natural resources within the jurisdiction of TPWD. However, the current MOU between TPWD and TxDOT is outdated and in need of revision. In accordance with Transportation Code, §201.607, TPWD and TxDOT examined the current MOU and developed a new MOU. The proposed new MOU was published by TxDOT in the February 15, 2013, issue of the Texas Register (38 TexReg 794). The new MOU was adopted by TxDOT and published in the June 14, 2013, issue of the Texas Register (38 TexReg 3814) and adds TxDOT rules at 43 TAC §2.201-2.214.
Mr. Ted Hollingsworth, Director of Land Conservation, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications for the department and TxDOT as a result of enforcement or administration of the rule. Under the terms of the MOU, TxDOT will fund two FTE (full-time equivalent) positions at TPWD to expedite environmental reviews. The funding of these positions will result in a payroll increase of $167,797 at TPWD and an expense of $167,797 per year to the State Highway Fund administered by TxDOT. This expenditure by TxDOT is expected to be offset by the benefit of more efficient and timely environmental review of TxDOT projects by TPWD. There are no economic costs for persons required to comply with the new subchapter.
There will be no fiscal implications for other units of state or local government.
Mr. Hollingsworth also has determined that for each of the first five years the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the rule will be increased efficiency in completing the environmental review TxDOT projects, more effective coordination between TxDOT and TPWD on the projects, and the ability of TPWD to provide additional protection of natural resources and habitat.
(B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. TPWD has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rule. The rule would not compel or mandate any action on the part of small businesses or micro-businesses. In particular, the proposed rule would not add new reporting or recordkeeping requirements; require any new professional expertise, capital costs, or costs for modification of existing processes or procedures; lead to loss of sales or profits; change market competition; or increase taxes or fees. Accordingly, TPWD has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.
(C) TPWD has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.
(D) TPWD has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.
(E) TPWD has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.
Comments on the proposed rule may be submitted to Ted Hollingsworth, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4520 (e-mail: ted.hollingsworth@tpwd.state.tx.us).
The rule is proposed under the authority of Transportation Code, §201.607, which requires TPWD to adopt by rule a memorandum of understanding with the Texas Department of Transportation and each state agency that is responsible for the protection of the natural environment or for the preservation of historical or archeological resources.
The proposed rule affects Transportation Code, Chapter 201.
§69.71. Memorandum of Understanding between the Texas Parks and Wildlife Department and the Texas Department of Transportation. The Texas Parks and Wildlife Commission adopts by reference the provisions of 43 TAC §§2.201 — 2.214[§2.22] (relating to Memorandum of Understanding with the Texas Parks and Wildlife Department).
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on
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