Commission Agenda Item No. 9
Presenter: Ted Hollingsworth

Action
Revised Environmental MOU with Texas Department of Transportation (TxDOT)
August 22, 2013

  1. Executive Summary: The Texas Department of Transportation (TxDOT) has adopted a revised Environmental Review Memorandum of Understanding (MOU) between TxDOT and Texas Parks and Wildlife Department (TPWD).
  2. Discussion: Section 201.607 of the Transportation Code requires that TPWD and TxDOT adopt by rule an MOU regarding the review of public transportation projects for environmental impacts. Under this MOU, TPWD staff review and comment on ways to reduce adverse impacts from a range of transportation projects, including road and highway projects and some airport projects. The current MOU (43 [Part I] Texas Administrative Code §§2.21-2.22; 31 Texas Administrative Code §69.71) was adopted in 1998.

    Staff of the two agencies has been working for years on changes to the MOU that would increase the efficiency of environmental review by focusing effort on projects with significant fish and wildlife impacts, while increasing the incorporation of TPWD comments into project citing and design, and improving project impact mitigation. The proposed rule would address these goals by establishing thresholds below which projects would not be sent individually to TPWD for review, requiring the development of procedures for statewide tracking of adverse project impacts and project mitigation, and committing TxDOT funding to assist with project review, management of TPWD’s Texas Natural Diversity Database, and with the optimization of compensatory mitigation for larger projects. TxDOT published the proposed rule in the Texas Register on February 15, 2013. The final rule was adopted by the Texas Transportation Commission on May 30 and was published in the Texas Register on June 14, 2013, and will go into effect September 1, 2013. The rule repeals 43 TAC §§2.21, and 2.22, and simultaneously replaces the repealed sections with new 43 TAC Subchapter G, §§2.201 -2.214. TxDOT and TPWD staff has drafted the associated Programmatic Agreements required by the MOU and anticipates approval of the Programmatic Agreements by both agencies upon adoption of the MOU by the TPW Commission.

  3. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:
    “The Texas Parks and Wildlife Commission adopts the amendment to 31 TAC §69.71, concerning Memorandum of Understanding between the Texas Parks and Wildlife Department and the Texas Department of Transportation concerning the review of public transportation projects for environmental impacts, with changes as necessary to the proposed text as published in the July 19, 2013, issue of the Texas Register (38 TexReg 4566-4567).”

Attachments – 2

  1. Exhibit A –Proposed Amendment to 31 TAC §69.71
  2. Exhibit B –Text of MOU as adopted by the Texas Transportation Commission

Commission Agenda Item No. 9
Exhibit A

MEMORANDUM OF UNDERSTANDING BETWEEN
THE TEXAS DEPARTMENT OF TRANSPORTATION
AND THE TEXAS PARKS AND WILDLIFE DEPARTMENT

PROPOSAL PREAMBLE

1. Introduction.

         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.

2. Fiscal Note.

         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.

3. Public Benefit/Cost Note.

         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.

4. Request for Public Comment.

         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).

5. Statutory Authority.

         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.


Commission Agenda Item No. 9
Exhibit B

SUBCHAPTER G.  MEMORANDUM OF UNDERSTANDING WITH THE TEXAS PARKS AND WILDLIFE DEPARTMENT

§2.201.  Purpose.

            (a) Transportation Code, §201.607, requires the Texas Department of Transportation (TxDOT) to adopt a memorandum of understanding (MOU) with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historical or archeological resources, and requires TxDOT and each of the agencies to adopt the memoranda and all revisions by rule.  This subchapter contains the memorandum of understanding between TxDOT and the Texas Parks and Wildlife Department (TPWD) that implements that section.

            (b) This subchapter furthers the environmental policy of TxDOT to protect, preserve, and when possible, enhance the environment, and the responsibility of TPWD for protecting the state’s fish and wildlife resource.

            (c) This MOU supersedes the MOU that was adopted to be effective March 21, 1999; the Memoranda of Agreement for the Finalization of 1998 MOU Concerning Habitat Descriptions and Mitigation that was signed August 2, 2001; the MOU Regarding Mitigation Banking that was signed December 7, 2005; and the Memorandum of Agreement for Sharing and Maintaining Natural Diversity Database Information that was signed April 11, 2007.  Nothing in this subchapter supersedes, modifies, or nullifies any other agreement entered into by TxDOT and TPWD.

            (d) TxDOT and TPWD shall review and by rule shall update this MOU not later than the fifth anniversary of its effective date, as required by Transportation Code, §201.607.

            (e) The effective date of this MOU is September 1, 2013.  Projects for which coordination with TPWD has been initiated prior to September 1, 2013 will complete coordination under the procedures of the pre-existing MOU.  Projects for which coordination with TPWD has not been initiated prior to September 1, 2013 will be governed by this MOU.

§2.202.  Applicability.

            (a) Except as provided in subsection (b) of this section, this subchapter applies to:

                 (1) a state transportation project or Federal Highway Administration (FHWA) transportation project conducted by the Texas Department of Transportation (TxDOT);

                 (2) a state transportation project or FHWA transportation project of a private or public entity that is funded in whole or in part by TxDOT;

                 (3) a state transportation project or FHWA transportation project of a private or public entity that requires Texas Transportation Commission or TxDOT approval;

                 (4) a maintenance program for which a programmatic environmental review is conducted under §2.133 of this chapter (relating to Maintenance Projects and Programs); or

                 (5) any other type of project coordinated at TxDOT’s request.

            (b) This subchapter does not apply to individual maintenance projects for which a programmatic environmental review is conducted under §2.133 of this chapter.

            (c) For transportation projects for which TxDOT allows a local government to be the project sponsor under §2.47 of this chapter (relating to Approval of Local Government as Project Sponsor), the local government project sponsor may use the procedures specified in this MOU to coordinate directly with TPWD, subject to TPWD approval on a case-by-case basis.

§2.203.  Definitions.  The following words and terms, when used in this subchapter, or in documents prepared by the Texas Department of Transportation (TxDOT) or Texas Parks and Wildlife Department (TPWD) pursuant to this subchapter, have the following meanings.

                 (1) Coordination — Actions between TxDOT and TPWD that relate to and facilitate TPWD’s review of and comments on the potential environmental effects of a transportation project.  The goal of coordination is to minimize adverse impacts of transportation projects on the fish and wildlife resources of Texas while maximizing efficient use of each agency’s resources.

                 (2) Best management practices (BMPs) — Actions taken to minimize the adverse effects of transportation projects on fish and wildlife resources.

                 (3) Ecological Mapping Systems of Texas (EMST) — An on-going effort to map vegetation of Texas at high resolution using multi-spectral aerial imagery and intensive on-ground verification.

                 (4) Environmental report — A report, form, checklist, or other documentation analyzing an environmental issue in the context of a specific transportation project or presenting a thorough summary of an environmental study conducted in support of an environmental review document, or demonstrating compliance with a specific environmental requirement.  The term does not include a permit or other approval outside the scope of the environmental review process.

                 (5) Environmental review document — An environmental assessment, an environmental impact statement, a reevaluation, a supplemental environmental impact statement, or, for an FHWA transportation project, a document prepared to demonstrate that it qualifies as a categorical exclusion when FHWA requires a narrative document as opposed to a checklist.  An environmental review document includes any attached environmental reports.

                 (6) Federal Highway Administration (FHWA) — The United States Department of Transportation Federal Highway Administration.

                 (7) FHWA transportation project — A transportation project for which FHWA’s approval is required by law to comply with NEPA, FHWA is the lead federal agency, and FHWA agrees TxDOT may act as the joint lead agency under 23 Code of Federal Regulations §771.109.

                 (8) Important remnant vegetation — A type of vegetation that is considered by TPWD to be rare, have local value, or to have substantially declined in recent times.  This includes vegetation communities listed in the TCAP as of special conservation concern, or as S3 or rarer, and communities listed as suitable habitat and within the range of any Species of Greatest Conservation Need (SGCN).  For the purposes of this MOU, in the event there is a range rank (e.g. S3S4) the lower rank should be used in determining the rarity of the community.

                 (9) Mitigation — For the purpose of this MOU, the actions taken to reduce the adverse impacts to the natural environment that result directly from a transportation project.  The term includes actions taken to avoid, minimize, or to compensate for impacts.

                 (10) NEPA — The National Environmental Policy Act, codified at 42 United States Code §§4321, et seq.

                 (11) Plant community association — A plant community of definite floristic composition (dominant/diagnostic species), uniform habitat conditions, and uniform physiognomy.

                 (12) Qualified biologist — A qualified biologist must have, at a minimum, a successful completion of a full 4-year course of study in an accredited college or university leading to a bachelor’s or higher degree with a major in biological sciences, natural resource management, wildlife science or management, ecology, zoology, botany, conservation biology, or a closely related field and have experience relevant to the species, habitat, or ecosystems that are being studied or described.

                 (13) Range — The general area where a species would be expected to occur as listed by county on the TPWD website or where available, as shown in range maps provided in or referenced by the TCAP.

                 (14) Right of way — Property acquired for the purpose of a transportation project.

                 (15) Riparian vegetation — River- or creek-dependent habitats which rely on periodic flooding or flushing, sub-irrigated substrates, and other influences of the ephemeral or perennial rivers or creeks to which they are adjacent, including floodplains, wet woodlands, gallery riverine forests, oxbows, swamps, and vegetated islands.

                 (16) Species of Greatest Conservation Need (SGCN) — Species of plants or animals that are identified in the TCAP.

                 (17) State threatened or endangered species — A species of wildlife listed as threatened in 31 TAC §65.175 (relating to Threatened Species) or as endangered in 31 TAC §65.176 (relating to Endangered Species), or a plant species listed as threatened or endangered in 31 TAC §69.8 (relating to Endangered and Threatened Plants).

                 (18) State transportation project — A transportation project that is not a major federal action for the purpose of NEPA.

                 (19) Suitable habitats — Habitats that provide a species or community with the specific physical location and conditions needed to survive and persist.  These may include terrestrial and aquatic vegetation communities; a particular watershed, waterbody or stream segment; water quantity or quality thresholds; particular geologic substrates (such as limestone, granite, and sands) or formations (such as karst and caves); or a species host.

                 (20) Texas Conservation Action Plan (TCAP) — The natural resources conservation plan for the State of Texas.  The TCAP identifies fish and wildlife resources of the state, including SGCN and their habitats, outlines activities to improve SGCN status and prevent federal threatened or endangered species listings where possible, and articulates conservation needs.  The TCAP is stewarded by TPWD and implemented across the state by TPWD and conservation partners.  The TCAP provides definitions for ecological systems, plant community associations, and habitats which are important for SGCN.

                 (21) Tier I site assessment — A preliminary site assessment to determine impacts and coordination requirements with TPWD.

                 (22) Tier II site assessment — An environmental report that demonstrates quantitative (acres) and qualitative (high, medium, or low) determination of ecological systems and plant community associations affected by a transportation project.  Tier II site assessments require an on-site verification by a qualified biologist to the extent access to new right of way is available.

                 (23) TPWD — Texas Parks and Wildlife Department.

                 (24) TxDOT — Texas Department of Transportation.

                 (25) Transportation enhancement — An activity that is listed under 23 United States Code §101(a)(35), relates to a transportation project, and is eligible for federal funding under 23 United States Code §133.

                 (26) Transportation project — A project to construct, maintain, or improve a highway, rest area, toll facility, aviation facility, public transportation facility, rail facility, ferry, or ferry landing.  A transportation enhancement is also a transportation project.

                 (27) Wetland — An area (including a swamp, marsh, bog, prairie pothole, or similar area) having a predominance of hydric soils that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, the growth and regeneration of hydrophytic vegetation.

§2.204.  Texas Natural Diversity Database (TXNDD).

            (a) TPWD maintains the TXNDD.  The TXNDD contains information on listed and proposed threatened and endangered species, both state and federal, SGCN, important remnant native vegetation, and other features of Texas natural history.  TPWD will continue to provide TXNDD information to TxDOT.

            (b) This MOU authorizes certain limited use and distribution of this information, and specifies security requirements.  The mechanisms established for transferring electronic TXNDD information from TPWD to TxDOT will be used to transfer electronic information relevant to this subchapter, such as TCAP data and EMST data.

            (c) The TXNDD is the property of TPWD.

            (d) Except as provided in subsection (e) of this section, TxDOT will not release the TXNDD or any portion of it to outside parties unless TxDOT receives a request under the Texas Public Information Act for the TXNDD or information contained therein, in which case TxDOT will notify TPWD of the request.

            (e) Texas Public Information Act requests for copies of approved environmental review documents and environmental reports that contain information from the TXNDD do not require TPWD notification.

            (f) TxDOT will conduct training on access and use of the TXNDD as it relates to transportation projects.  The training will be developed jointly by TxDOT and TPWD.

            (g) TxDOT will provide completed TXNDD reporting forms for observations of tracked SGCN occurrences within TxDOT project areas.

            (h) TXNDD reporting requirements shall be incorporated into the site assessment protocol.

§2.205.  Determining Need for TPWD Coordination.

            (a) TxDOT will perform a Tier I site assessment for all projects subject to this subchapter.

                 (1) A Tier I site assessment is used to determine impacts and the need for coordination with TPWD.  The Tier I site assessment will define the type and amount of habitat impacted using information from TCAP, EMST, TXNDD, county lists of Rare and Protected Species of Texas maintained by TPWD; county lists of endangered, threatened, and candidate species maintained by the U.S. Fish and Wildlife Service; and the most current aerial photography available.  The results of a Tier 1 assessment will be recorded in the Texas ECOS project file.

                 (2) TxDOT will compare the results of a Tier I site assessment to the triggers in §2.206 of this subchapter (relating to Coordination Triggers) and thresholds found in the Threshold Table Programmatic Agreement developed under §2.213 of this subchapter (relating to Programmatic Agreements) to determine the need for coordination with TPWD.

                 (3) Tier I site assessments may require a field visit by a TxDOT qualified biologist to resolve the level of impact and, therefore, the requirement to coordinate a project with TPWD.

            (b) TxDOT will coordinate with TPWD under §2.207 of this subchapter (relating to Early Project Coordination) or §2.208 of this subchapter (relating to Administrated Project Coordination) concerning a proposed transportation project if a trigger under §2.206 is met or a threshold found in the Threshold Table Programmatic Agreement developed under §2.213 is exceeded, and one of the following conditions is also met:

                 (1) the project has not previously completed coordination;

                 (2) the project has been previously reviewed by TPWD but is the subject of a reevaluation or revision and the scope of the reevaluation or revision relates to an issue on which TPWD commented; or

                 (3) the project has been previously reviewed by TPWD but is the subject of a reevaluation or revision and the change proposed in the reevaluation or revision, considered as a stand-alone transportation project, is a substantial change to the project from the previous coordination.

            (c) For the purposes of subsection (b) of this section, a change is substantial if it is equal to or greater than at least one of the factors listed in §2.206 of this subchapter, or the proposed new impacts would be greater than had previously been coordinated or now exceed a threshold found in the Threshold Table Programmatic Agreement developed under §2.213 of this subchapter.  These changes can include, but are not limited to, increased impacts to fish and wildlife resources or rare vegetation series identified in the TCAP, changes in the status of such resources since the previous coordination, or the identification of a new TXNDD record or records of rare or protected species or managed areas that may be impacted and that are different than those identified when coordination was previously conducted.

            (d) No coordination under this MOU is required for a project that is not described by subsection (b) of this section.

§2.206.  Coordination Triggers.  The triggers described in this section shall be used to determine whether coordination is required as provided by §2.205 of this subchapter (relating to Determining Need for TPWD Coordination).

                 (1) The project is within the range of a state threatened or endangered species or SGCN as identified by the TPWD County list of Rare and Protected Species as it exists on the day the agreed-upon project scope is finalized under §2.44 of this chapter (relating to Project Scope) or if there is no project scope and for reevaluations, as it exists when TxDOT makes its determination regarding whether coordination is required, and there is suitable habitat, unless BMPs as defined in this MOU are implemented as provided by a programmatic agreement developed under §2.213 of this subchapter (relating to Programmatic Agreements).

                 (2) The project may adversely impact important remnant vegetation based on the judgment of a qualified biologist or as mapped in the TXNDD.

                 (3) The project requires a nationwide permit with pre-construction notification or an individual permit, issued by the United States Army Corps of Engineers.

                 (4) The project includes in the TxDOT right of way or conservation, construction, or drainage easement more than 200 linear feet of stream channel for each single and complete crossing of one or more of the following that is not already channelized or otherwise maintained:

                      (A) channel realignment; or

                      (B) stream bed or stream bank excavation, scraping, clearing, or other permanent disturbance.

                 (5) The project contains known isolated wetlands outside existing TxDOT right of way that will be directly impacted by the project.

                 (6) The project may impact at least 0.10 acre of riparian vegetation based on the judgment of a qualified biologist or as mapped in the EMST.

                 (7) The project disturbs habitat in an area equal to or greater than the area of disturbance indicated in the Threshold Table Programmatic Agreement developed under §2.213 of this subchapter.

§2.207.  Early Project Coordination.

            (a) It is the intention of TxDOT and TPWD that coordination during early project development will be the primary mechanism for coordination of projects between the agencies.

            (b) To request early project coordination, TxDOT will provide available and relevant project information to TPWD.  TxDOT and TPWD will work cooperatively to identify any additional documentation appropriate for review and comment on the project.

            (c) TPWD will notify TxDOT when documentation is sufficient to conduct early project coordination.  Upon completion of the review, TPWD will provide determinations and recommendations to TxDOT.  Upon TPWD submission of determinations and recommendations and TxDOT written response in accordance with Parks and Wildlife Code, §12.0011(c), early project coordination is complete.

            (d) TPWD determinations and recommendations must be issued by the TPWD Wildlife Habitat Assessment Program, and TxDOT written responses must be issued by TxDOT’s Environmental Affairs Division.  All other communications during early project coordination may be made by other appropriate organizational units of the respective agencies or other entities approved by the respective agencies.  TxDOT’s Environmental Affairs Division and the TPWD Wildlife Habitat Assessment Program are each responsible for identifying its respective agency’s rules and requirements.

            (e) TxDOT may make project modifications and request additional TPWD comment.  TPWD may review final project documents and final environmental review documents.

            (f) Projects for which early project coordination is completed do not require additional coordination unless project modifications warrant re-coordination under §2.205(b)(2) or (3) of this subchapter (relating to Determining Need for TPWD Coordination).

            (g) The TxDOT department delegate for the project will ensure that the results of any coordination with TPWD, including efforts made by TxDOT during project planning and design to avoid and minimize impacts to natural resources, shall be summarized in the project’s environmental review document.

§2.208.  Administrated Project Coordination.

            (a) Administrated project coordination will be conducted for projects subject to coordination under this MOU, but for which early project coordination is not completed.

            (b) Administrated project coordination will occur between TxDOT’s Environmental Affairs Division and the TPWD Wildlife Habitat Assessment Program, unless those two units agree in writing to allow other appropriate organizational units of the respective agencies or other entities approved by the respective agencies to conduct the coordination.  TxDOT’s Environmental Affairs Division and the TPWD Wildlife Habitat Assessment Program are each responsible for identifying its respective agency’s rules and requirements.

            (c) To initiate administrated project coordination, TxDOT will submit the coordination package to TPWD for review and comment.  The coordination package consists of a cover letter that requests review pursuant to this MOU, the Tier II site assessment, and any other environmental studies or reports that TxDOT believes are relevant to TPWD’s review of the project.  This coordination package is prepared and submitted to TPWD prior to the environmental document being produced.

            (d) Texas ECOS is a web-based relational database for electronic communication and tracking of environmental coordination.  TPWD will be provided access with user privileges to Texas ECOS with the intention of making information exchange paperless and real time.  Until TPWD has provided written agreement that Texas ECOS is adequate for TPWD coordination review, all administrated coordination will be conducted in writing and transmitted on agency letterhead.

            (e) TPWD will comment on any aspect of the project it determines may have adverse impacts to fish and wildlife resources.

            (f) For written communications, TPWD will notify TxDOT by email to indicate when it has received the coordination package for its review.  TPWD shall have 45 days from the date TPWD receives the coordination package for its review, or from five business days after the date of transmittal of the coordination package, whichever occurs first, to provide its comments on the project.  Once Texas ECOS is accepted as the means for communicating and tracking project coordination, the 45-day clock will start on the first business day after notification to TPWD that the coordination information is available in ECOS.

            (g) TPWD may request additional information during the 45-day review period, in which case TxDOT will provide the requested information if the information is available or can be reasonably obtained.  If the requested information cannot be provided, then TxDOT will inform TPWD and explain why in writing.

            (h) TxDOT will consider and implement when mutually agreeable, the comments that are submitted by TPWD within the 45-day review period.  TxDOT will provide TPWD with a written explanation of TxDOT’s decisions or other action within 90 days of making a decision related to the comment.

            (i) If TPWD submits comments after the end of the 45-day review period, TxDOT will consider the comments in making decisions on the project to the extent practicable, and provide a written response in the same manner indicated in subsection (e) of this section.

            (j) The TxDOT department delegate for the project will ensure that the results of any coordination with TPWD, including efforts made by TxDOT during project planning and design to avoid and minimize impacts to natural resources, shall be summarized in the project’s environmental review document.

§2.209.  Tier II Site Assessment.

            (a) Tier II site assessments are the basis for evaluating project impacts and are the primary environmental report used for administrated coordination under this subchapter.  A programmatic agreement will be developed and approved to provide implementation requirements for site assessments.

            (b) A Tier II site assessment will be prepared for those projects that are subject to coordination under this MOU and for which early project coordination is not completed.

            (c) A Tier II site assessment must include a review of the TCAP and documentation of the direct impacts from the project to ecosystems, plant community associations, preferred habitat for SGCN that are within range, easements, and land set aside for environmental mitigation.  Additionally, a TxDOT qualified biologist will provide field verification to confirm potential direct and indirect impacts, assess the quality of impacted fish and wildlife resources, and determine the areal extent of ecological systems and plant community associations for the entire project area, and whether any or all of the project may result in adverse impacts to fish and wildlife resources.

            (d) At a minimum, Tier II site assessments will include:

                 (1) a description of the project, including the natural setting in which the project occurs, the existing conditions, and the proposed action;

                 (2) a description of the quantity and quality of any habitat that occurs for species on the county list within or abutting the right of way; and

                 (3) any proposed steps to be taken to mitigate potential adverse impacts on resources.

            (e) Protocols for review of TXNDD information and an interpretation of the data will be included in the site assessment programmatic agreement.

            (f) It is understood that a lack of access to the new right of way may limit the amount of information available for the habitat description.  Existing data shall be used to provide a best estimate in these circumstances.

§2.210.  Communication during Construction.

            (a) TxDOT will communicate with TPWD when unforeseen impacts on species that are included on TPWD county lists or their habitat are identified during construction of a project.

            (b) TPWD and TxDOT will conduct site visits at the request of either party and upon scheduling agreement of both parties.

§2.211.  Project Tracking.  TxDOT will maintain records of all projects subject to this subchapter.  TPWD may request information electronically from TxDOT until Texas ECOS is operational at TPWD offices.  The information request should specify time ranges and geographic areas for the records.  TxDOT will respond within 30 days of the request.

§2.212.  Site Access.  TPWD may make site visits to any TxDOT construction or maintenance site.  TPWD must provide TxDOT timely notification of its intention to conduct an on-site visit to an ongoing construction site and must comply with all safety requirements identified in TxDOT’s response or as instructed by the on-site responsible person.

§2.213.  Programmatic Agreements.

            (a) The Interagency MOU Implementation Team created under §2.214 of this subchapter (relating to Interagency MOU Implementation Team) will develop programmatic agreements to address issues not specifically identified in this subchapter.  Programmatic agreements must be approved by the Executive Director of each agency prior to their effective date.

            (b) At a minimum, the Interagency MOU Implementation Team will develop programmatic agreements described in this subsection.

                 (1) A programmatic agreement detailing the information required to be included in a Tier II site assessment will be developed.  This programmatic agreement will set forth the Tier II site assessment requirements in greater detail than that provided in §2.209 of this subchapter (relating to Tier II Site Assessment).

                 (2) A threshold table programmatic agreement will be developed to establish thresholds to be used in making the determination required by §2.205 of this subchapter (relating to Determining Need for TPWD Coordination).

                 (3) A programmatic agreement concerning TxDOT-funded positions at TPWD will be developed.  The goal of this programmatic agreement will be to reduce the number of projects referred to TPWD for coordination by 50 percent, reduce average project review times, and increase the environmental value of project mitigation.

                 (4) A programmatic agreement for updating and supporting the TXNDD to be a best in class resource will be developed.

                 (5) A programmatic agreement concerning conservation projects will be developed.

                 (6) A programmatic agreement concerning BMPs will be developed.  The interagency team will develop new BMPs for adoption by TxDOT and TPWD to reduce the number of projects referred to TPWD as a result of meeting triggers for state threatened or listed species, and other triggers as appropriate, and to further mitigate the adverse impacts of transportation projects.

            (c) Programmatic agreements may be changed at any time by the written concurrence of the Executive Directors of TxDOT and TPWD.

§2.214.  Interagency MOU Implementation Team.

            (a) The Executive Directors of TxDOT and TPWD or their delegates shall mutually appoint an interagency team which will be formed within two months of the effective date of this MOU and will meet, at a minimum, quarterly for the first two years of implementation of this MOU, and on a semi-annual basis thereafter, unless a majority of the team deems it necessary to meet more frequently.

            (b) The interagency team will prepare recommendations for the next update of this MOU.

            (c) The interagency team will develop metrics for tracking the effectiveness of this MOU and will provide an annual report to the leadership of TxDOT and TPWD.  This report will include, at a minimum, the actual number of projects coordinated, the reduction in the number of projects coordinated as a result of changes to the environmental review process effectuated by this MOU, an analysis of the time to complete project coordination, the adverse impacts of transportation projects by habitat type, the conservation of habitat resulting from mitigation, evaluation of the value of any TxDOT-funded positions at TPWD, and recommendations regarding continuation of those positions.

            (d) The interagency team will evaluate and make recommendations to improve the usefulness and applicability of TPWD comments.

            (e) The interagency team will facilitate reviews and comments on agency guidance and protocols developed to implement this MOU.

            (f) The interagency team shall review the early project coordination process periodically and make recommendations for improving process efficiency and usefulness.  The interagency team will be responsible for attempting to resolve any conflict between TPWD and TxDOT that results from the implementation of this subchapter before elevating to agency management.