Texas
Administrative
Code
TITLE
43
TRANSPORTATION
PART
1
TEXAS
DEPARTMENT
OF
TRANSPORTATION
CHAPTER
2
ENVIRONMENTAL
POLICY
SUBCHAPTER
B
MEMORANDA
OF
UNDERSTANDING
WITH
NATURAL
RESOURCE
AGENCIES
RULE
§
2.23
Memorandum
of
Understanding
with
the
Texas
Natural
Resource
Conservation
Commission
(
a)
Purpose.
This
section
contains
the
Memorandum
of
Understanding
(
MOU)
between
the
Texas
Department
of
Transportation
(
TxDOT)
and
the
Texas
Natural
Resource
Conservation
Commission
(
TNRCC)
concerning
the
coordination
of
environmental
reviews
associated
with
transportation
projects.
The
MOU
addresses
only
those
reviews
required
by
Transportation
Code,
§
201.607,
and
does
not
affect
coordination
or
permits
required
by
other
state
or
federal
regulations.
(
1)
It
is
the
policy
of
TxDOT
to:

(
A)
investigate
fully
the
environmental
impacts
of
departmental
transportation
projects,
coordinate
these
projects
with
applicable
state
and
federal
agencies,
and
reflect
these
investigations
and
coordination
in
the
environmental
documentation
for
each
project;

(
B)
base
project
decisions
on
a
balanced
consideration
of
the
need
for
a
safe,
efficient,
economical,
and
environmentally
sound
transportation
system;

(
C)
receive
input
from
the
public
through
the
public
involvement
process;

(
D)
utilize
a
systematic
interdisciplinary
approach
as
essential
parts
of
the
development
process
for
transportation
projects;
and
(
E)
strive
for
environmental
soundness
of
transportation
activities
through
appropriate
mitigation,
where
feasible
and
prudent,
in
coordination
with
appropriate
resource
agencies.

(
2)
It
is
the
policy
of
TNRCC
to:

(
A)
promote
and
foster
voluntary
compliance
with
environmental
laws;

(
B)
ensure
that
the
regulations
promote
flexibility
in
achieving
environmental
goals
and
are
applied
clearly
and
consistently;

(
C)
base
decisions
on
the
law,
common
sense,
good
science,
and
fiscal
responsibility;

(
D)
ensure
that
regulations
are
necessary,
effective,
and
current;

(
E)
ensure
meaningful
public
participation
in
the
decision
making
process;
and
(
F)
ensure
consistent,
just,
and
timely
enforcement
when
environmental
laws
are
violated.

(
3)
The
rules
for
coordination
of
state­
assisted
transportation
projects
developed
by
TxDOT,
codified
as
43
TAC
§
§
2.40­
2.51,
underline
the
need
for
and
importance
of
comprehensive
environmental
coordination
for
all
transportation
projects.

(
4)
The
intent
of
this
MOU
is
to
provide
a
formal
mechanism
by
which
TNRCC
may
review
TxDOT
projects
that
have
the
potential
to
affect
resources
within
TNRCC's
jurisdiction.
This
review
will
promote
the
mutually
beneficial
sharing
of
information
between
TxDOT
and
TNRCC,
which
will
assist
TxDOT
in
making
environmentally
sound
decisions.

(
b)
Authority.

(
1)
Transportation
Code,
Section
201.607,
directs
TxDOT
to
adopt
memoranda
of
understanding
with
each
agency
that
has
responsibilities
for
protection
of
the
natural
environment.

(
2)
By
statute,
TNRCC
may
enter
into
a
memorandum
of
understanding
with
any
other
state
agency
and
shall
adopt
by
rule
any
memorandum
of
understanding
between
TNRCC
and
any
other
state
agency
(
Water
Code,
Section
5.104,
and
Health
and
Safety
Code,
Section
382.035).

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

(
1)
Construction
­­
Activities
that
involve
the
building
of
transportation
projects
on
new
location,
the
expansion,
rehabilitation,
or
reconstruction,
of
an
existing
facility.

(
2)
Districts
­­
One
of
the
25
geographical
districts
into
which
TxDOT
is
divided.

(
3)
Environmental
documents
­­
Decision­
making
documents
prepared
pursuant
to
23
CFR
§
771
(
or
any
subsequent
amendments
or
regulations)
for
federal­
aid
projects
or
§
§
2.40
et
seq.
of
this
chapter
for
non
federal­
aid
projects
that
incorporate
the
results
of
environmental
studies,
coordination
and
consultation
efforts,
and
engineering
elements.
These
documents
include
categorical
exclusions,
environmental
assessments,
and
environmental
impact
statements.

(
4)
The
United
States
Environmental
Protection
Agency
(
EPA)
­­
The
federal
agency
which
is
generally
charged
with
administering
federal
authority
over
the
quality
of
air
and
water
resources.

(
5)
Federal
Clean
Air
Act
(
FCAA)
­­
(
42
USC
§
7401)
The
federal
act,
including
all
amendments,
that
establishes
national
ambient
air
quality
standards
and
mandates
procedures
for
reaching
and
maintaining
these
standards.

(
6)
Inspection
and
Maintenance
Program
­­
A
vehicle
emissions
inspection
program
as
defined
by
the
EPA
that
includes,
but
is
not
limited
to,
the
use
of
computerized
analyzers,
on­
road
testing,
and/
or
inspection
of
vehicle
emission
devices.

(
7)
Maintenance
­­
Activities
which
involve
the
repair
or
preservation
of
an
existing
facility
to
prevent
that
facility's
degradation
to
an
unsafe
or
irreparable
state,
or
which
involve
the
treatment
of
an
existing
facility
or
its
environs
to
meet
acceptable
standards
of
operation
or
aesthetic
quality.
The
activities
generally
do
not
require
the
acquisition
of
additional
right
of
way
or
result
in
increased
roadway
capacity.

(
8)
Memorandum
of
Understanding
­­
A
formal
document
that
outlines
the
relationship
between
agencies
or
parties,
including
the
responsibilities
and
jurisdiction
of
each
party,
and
which
sets
forth
within
its
provisions
agreements
between
the
parties
and
a
means
of
dispute
resolution.

(
9)
Metropolitan
Planning
Organization
(
MPO)
­­
An
organization
designated
in
certain
urbanized
areas
to
carry
out
the
transportation
planning
process
as
required
by
23
USC
§
134.

(
10)
Mitigation
­­
A
means
of
addressing
impacts
to
the
natural
environment
including
in
general
order
of
preference,
avoidance,
minimization,
and
compensation.

(
11)
National
Environmental
Policy
Act
of
1969
(
NEPA)
­­
(
42
USC
§
4332)
The
basic
national
charter
for
protection
of
the
environment.
It
establishes
policy,
sets
goals,
and
provides
means
for
carrying
out
the
policy.
NEPA
is
binding
on
federal
agencies,
including
the
Federal
Highway
Administration
(
FHWA),
and
is
usually
followed
as
an
environmental
guideline
by
state
and
local
agencies.
For
the
purpose
of
this
MOU,
NEPA
includes
the
Act
itself,
its
subsequent
amendments,
and
implementing
regulations.

(
12)
Non­
attainment
counties
­­
Counties
in
an
air
quality
control
region
for
which
any
pollutant
exceeds
the
National
Ambient
Air
Quality
Standards
(
NAAQS)
for
the
pollutant
as
designated
pursuant
to
42
USC
§
7407
(
Section
107
of
the
FCAA).

(
13)
Project
development
­­
The
planning
process
of
a
transportation
project
that
includes
environmental
studies
and
drafting
the
appropriate
environmental
documentation,
the
public
involvement
process,
engineering
design,
and
right
of
way
acquisition.

(
14)
Right
of
way
­­
The
land
provided
for
a
transportation
facility.
Right
of
way
includes
the
roadway
itself
(
including
shoulders)
and
the
areas
between
the
roadway
and
adjacent
properties.

(
15)
Single
occupancy
vehicle
­­
A
motor
vehicle
operated
by
a
driver
and
carrying
no
passengers.

(
16)
State
Implementation
Plan
(
SIP)
­­
The
plan
prepared
by
TNRCC
as
required
by
42
USC
§
7410
(
Section
110
of
the
FCAA)
to
attain
and
maintain
air
quality
standards.
An
approved
SIP
is
the
implementation
plan,
or
most
recent
revision
of
this
plan,
that
has
been
approved
by
EPA
under
Section
110.

(
17)
Statewide
Transportation
Improvement
Plan
(
STIP)
­­
The
statewide
multi­
year
transportation
improvement
program
made
up
of
Transportation
Improvement
Plans
(
TIPs)
from
all
metropolitan
planning
areas,
as
well
as
the
rural
TIPs
for
areas
outside
the
metropolitan
planning
areas,
and
some
statewide
programs.

(
18)
TNRCC
­­
For
the
purposes
of
this
MOU,
TNRCC
refers
to
the
commissioners,
executive
director,
and
their
respective
staffs,
of
the
Texas
Natural
Resource
Conservation
Commission.

(
19)
Transportation
Improvement
Program
(
TIP)
­­
A
staged,
multi­
year
(
normally
three
years),
intermodal
program
of
transportation
projects
which
are
consistent
with
the
metropolitan
transportation
plan
(
MTP)
as
defined
in
23
CFR
450.322
and
which
covers
a
metropolitan
planning
area.

(
20)
Transportation
projects
­­
All
surface
transportation
projects
designed,
constructed,
and
maintained
by
TxDOT.

(
21)
TxDOT
­­
For
the
purposes
of
this
MOU,
TxDOT
refers
to
the
commissioners,
executive
director,
and
staff
of
the
Texas
Department
of
Transportation.

(
22)
TxDOT
environmental
rules
­­
The
rules
relating
to
the
environmental
review
and
public
involvement
process
for
transportation
projects
(
§
§
2.40­
2.51
of
this
chapter).

(
d)
Responsibilities.

(
1)
The
responsibilities
of
TxDOT
pertain
primarily
to
its
functions
as
a
transportation
agency
and
include:

(
A)
planning
and
designing
safe,
efficient,
cost
effective
and
environmentally
sound
transportation
projects,
while
avoiding,
minimizing,
or
compensating
for
anticipated
environmental
impacts
to
the
fullest
extent
practicable;

(
B)
timely
and
efficient
construction
of
transportation
projects
consistent
with
transportation
control
measures
in
the
SIP
and
with
approved
plans
and
agreements
which
have
been
executed
by
TxDOT
regarding
the
protection
of
the
environment;

(
C)
ongoing
maintenance
to
protect
transportation
investments
and
to
provide
safe
and
efficient
transportation
facilities
for
the
traveling
public;

(
D)
preservation
of
the
environment
when
possible
and
enhancement
of
the
environment
when
practicable;

(
E)
maintaining
vehicle
registration
data
which
will
facilitate
mobile
source
air
quality
planning
and
implementation
as
directed
by
the
SIP
and
as
agreed
to
by
TxDOT;

(
F)
developing
a
STIP,
which
includes
each
MPO's
TIP
and
specific
projects
in
the
TIP;
and
(
G)
implementing
an
enforceable
and
verifiable
registration
denial
mechanism
which
requires
emissions
testing
as
a
prerequisite
to
vehicle
registration
in
appropriate
areas.

(
2)
The
responsibilities
of
TNRCC
pertain
to
air
and
water
quality
as
described
in
this
paragraph.

(
A)
Air
quality.

(
i)
TNRCC
is
the
state
air
pollution
control
agency
and
is
the
principal
authority
in
Texas
on
matters
relating
to
the
quality
of
the
state's
air
resources.

(
ii)
TNRCC's
primary
responsibility,
as
designated
by
Health
and
Safety
Code,
Section
382.002,
includes,
but
is
not
limited
to,
setting
standards,
criteria,
levels,
and
emission
limits
for
air
quality
and
air
pollution
control.

(
iii)
General
powers
and
duties
of
TNRCC
regarding
air
quality
are:

(
I)
regulation
of
air
quality
through
the
development,
implementation,
and
enforcement
of
strategies,
and
control
programs
as
necessary
to
satisfy
all
federal
and
state
requirements,
including
SIP
requirements
mandated
by
the
FCAA;

(
II)
participation
in
the
preparation
and
review
of
SIP
conformity
evaluations
and
other
SIP
documents
for
determination
purposes
of
transportation
programs,
plans,
and
projects
as
required
by
the
FCAA;

(
III)
participation,
through
coordination
with
TxDOT,
in
the
development
and
implementation
of
transportation
control
measures,
which
may
require
action
by
TxDOT;
and
(
IV)
implementation
of
an
effective
vehicle
inspection
and
maintenance
program
incorporating
an
enforceable
and
verifiable
registration
denial
mechanism.

(
iv)
TNRCC
has
the
authority
to
develop
the
following
items.

(
I)
State
Air
Control
Plan.
TNRCC
shall
prepare
and
develop
a
general,
comprehensive
plan
for
the
proper
control
of
the
state's
air
quality.

(
II)
Air
quality
control
regions.
TNRCC
may
designate
air
quality
control
regions
based
on
jurisdictional
boundaries,
urban/
industrial
concentrations,
and
other
factors,
including
atmospheric
conditions,
necessary
to
provide
adequate
implementation
of
air
quality
standards.

(
III)
Emission
inventory.
TNRCC
may
require
any
entity
whose
activities
cause
emissions
of
air
contaminants
to
submit
information
to
enable
TNRCC
to
develop
an
inventory
of
air
contaminants.

(
B)
Water
quality
(
i)
TNRCC
is
charged
with
the
protection
of
the
quality
of
water
and
water
rights
in
the
state.

(
ii)
TNRCC's
jurisdiction,
as
outlined
in
Water
Code,
§
5.013,
includes:

(
I)
water
and
water
rights,
including
the
issuance
of
water
rights
permits,
water
rights
adjudication,
cancellation
of
water
rights,
and
enforcement
of
water
rights;

(
II)
the
state's
water
quality
program,
including
issuance
of
permits,
enforcement
of
water
quality
rules,
standards,
orders,
and
permits,
certification
of
federal
permits
and
water
quality
planning;

(
III)
the
determination
of
the
feasibility
of
certain
federal
projects;

(
IV)
the
administration
of
the
state's
programs
relating
to
inactive
hazardous
substance,
pollutant,
and
contaminant
disposal
facilities;

(
V)
the
administration
of
the
state's
programs
involving
underground
water;
and
(
VI)
any
other
areas
assigned
to
TNRCC
by
the
Water
Code
and
other
state
law.

(
e)
Provisions
regarding
coordination
and
document
review.

(
1)
Coordination.
(
A)
TxDOT
is
committed
to
performing
early
identification
efforts
to
assess
potential
environmental
concerns
related
to
proposed
transportation
projects,
and
initiating
coordination
with
TNRCC
during
the
early
planning
stages
of
these
projects.
Early
identification
of
environmental
concerns
and
coordination
with
TNRCC
is
essential
to
TxDOT's
efforts
to:
(
i)
consider
environmental
issues
early
in
the
project
development
process;

(
ii)
design
and
develop
transportation
projects
in
a
timely
manner;
and
(
iii)
avoid
and
minimize
impacts
to
environmental
resources
to
the
maximum
extent
practicable.

(
B)
TxDOT's
districts
are
encouraged
to
coordinate
projects
early
in
development
by
working
with
TNRCC's
Austin
Headquarters
and
regional
offices.
Any
information
received,
and
the
results
of
coordination
will
be
summarized
in
the
environmental
document
prepared
for
the
project.

(
C)
Through
notices,
public
meetings,
and
public
hearings,
TxDOT
and
TNRCC
are
committed
to
encouraging
public
input
as
specified
by
statute
and
TNRCC
and
TxDOT
rules
concerning
plans
and
actions
that
may
affect
environmental
quality.

(
2)
Environmental
document
review.

(
A)
TxDOT
will
furnish
environmental
documentation
to
TNRCC
for
types
of
projects
listed
in
this
paragraph,
pertaining
to
air
quality
and
water
quality.

(
i)
Air
quality.
TxDOT
shall
furnish
to
TNRCC
environmental
documentation
for
all
projects
that:

(
I)
involve
the
construction
of
highway
projects
on
new
location
in
non­
attainment
areas;

(
II)
involve
additional
single
occupancy
vehicle
capacity
in
non­
attainment
areas;
(
III)
are
in
non­
attainment
areas
and
which
may
affect
air
quality;
and
(
IV)
involve
construction
of
single
occupancy
vehicle
projects
on
new
location
and
increased
single
occupancy
vehicle
highway
capacity
in
metropolitan
areas
with
a
total
metropolitan
area
threshold
of
at
least
100,000.

(
ii)
Water
quality.
TxDOT
project
types
to
be
coordinated
with
TNRCC
include:

(
I)
projects
which
may
encroach
upon
threatened
or
impaired
stream
segments
designated
under
§
303(
d)
of
the
Clean
Water
Act
and/
or
are
5
miles
upstream
from
the
designated
stream
segment;

(
II)
projects
in
the
recharge
or
contributing
zone
of
the
Edwards
Aquifer,
pursuant
to
30
TAC
§
213.3,
§
213.10
and
§
§
213.20­
213.28;
and
(
III)
projects
that
will
require
individual
Clean
Water
Act
Section
401
certification
under
procedures
defined
in
a
Memorandum
of
Agreement
between
the
U.
S.
Army
Corps
of
Engineers
and
the
TNRCC.

(
B)
Environmental
documentation
prepared
and
provided
to
TNRCC
by
TxDOT
will
be
in
compliance
with
NEPA,
USDOT
regulations
(
23
CFR
771),
TxDOT
environmental
rules,
and
other
applicable
laws,
rules,
and
regulations.

(
C)
The
environmental
document
shall
be
forwarded
to
the
designated
points
of
contact
at
TNRCC
following
TxDOT
review.
TNRCC
shall
have
a
period
of
30
days,
from
date
of
receipt,
to
review
the
environmental
document
and
provide
written
comments.
TNRCC
may,
if
necessary,
submit
a
written
request
to
extend
the
review
period
for
a
maximum
of
30
days.
The
reason
for
requesting
a
review
extension
must
be
included
in
any
such
request.

(
D)
For
projects
requiring
the
preparation
of
an
environmental
impact
statement,
TxDOT
shall
furnish
the
preliminary
environmental/
scoping
document
to
TNRCC
upon
approval
of
the
document
by
the
FHWA
for
federal
projects
or
TxDOT
for
state
projects.
TxDOT
will
also
provide
the
draft
and
final
environmental
impact
statements
to
TNRCC
for
review
and
comment.

(
f)
Additional
provisions
regarding
air
quality.

(
1)
TNRCC
shall
furnish
TxDOT
information
detailing
the
location
and
severity
of
non­
attainment
counties
and
information
affecting
transportation­
related
activity
and
mobile
sources
to
be
included
in
the
SIP.
The
information
is
helpful
in
the
planning
and
location
of
future
TxDOT
projects,
and
in
the
coordination
of
the
projects
with
TNRCC.

(
2)
TxDOT
and
TNRCC
shall
exchange,
on
a
statewide
basis,
accurate
and
timely
information
to
facilitate
the
coordination
of
environmental
reviews.
In
addition,
data
for
developing
mobile
source
budgets
and
data
on
transportation
conformity
determinations
will
also
be
provided,
particularly
for
any
new
areas
designated
by
EPA
as
non­
attainment.

(
g)
Additional
provisions
regarding
water
quality.
TxDOT
will
coordinate
with
TNRCC
in
complying
with
30
TAC
Chapter
213
(
Edwards
Aquifer
Protection
Program)
in
accordance
with
the
Interagency
Cooperation
Contract
relating
to
such
coordination.

(
h)
Dispute
resolution.
When
TxDOT
and
TNRCC
are
unable
to
reach
a
mutually
agreeable
plan
of
action
regarding
impacts
of
transportation
projects
to
natural
resources
within
the
jurisdiction
of
TNRCC,
each
agency
shall
make
a
good
faith
effort
to
address
the
major
concerns
of
the
other
party.
TxDOT
will
evaluate
comments
received
from
TNRCC
in
conjunction
with
all
other
applicable
factors
(
i.
e.,
other
agency
comments,
project
alternatives,
cost,
mitigation
requirements,
and
safety
considerations)
in
an
attempt
to
arrive
at
a
plan
of
action
acceptable
to
the
affected
parties.
A
period
of
45
days
shall
be
provided
for
the
resolution
of
such
disputes,
after
which
the
department
is
charged
with
determining
the
disposition
of
transportation
projects
within
its
jurisdiction.
If
TxDOT
proceeds
with
a
proposed
transportation
project
in
conflict
with
TNRCC
comments,
TxDOT
will
submit
to
TNRCC
a
complete
and
detailed
justification
demonstrating
full
compliance
with
all
federal
and
state
rules,
regulations,
and
laws.
TNRCC
reserves
the
right
to
bring
enforcement
action
against
TxDOT
for
violation
of
laws
or
rules
that
TNRCC
is
charged
with
enforcing
and
that
may
be
applicable
to
TxDOT
operations.
Both
parties
agree
that
this
MOU
does
not
preclude
either
party
from
making
any
legal
argument.

(
i)
Review
of
MOU.
This
MOU
shall
be
reviewed
and
updated
no
later
than
January
1,
2007.
TxDOT
and
TNRCC
by
rule
shall
adopt
the
MOU
and
all
revisions
to
the
MOU.
If
a
change
in
state
or
federal
law
or
a
change
in
the
Texas
SIP
necessitates
a
change
in
this
MOU,
then
representatives
from
both
TxDOT
and
TNRCC
will
meet
to
work
out
a
mutually
agreeable
amendment
to
the
MOU.
If
such
an
amendment
is
not
possible,
either
party
may
require
dispute
resolution
under
subsection
(
h)
of
this
section.

Source
Note:
The
provisions
of
this
§
2.23
adopted
to
be
effective
March
21,
2002,
27
TexReg
2062
