Environmental Review of Transportation Projects Memorandum of Understanding - (MOU) with Texas Department of Transportation (TxDOT) - Recommended Adoption of the TxDOT MOU

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Commission Agenda Item No. 6
Presenter: Laura Zebehazy

Action
Environmental Review of Transportation Projects Memorandum of Understanding
(MOU) with Texas Department of Transportation (TxDOT)
Recommended Adoption of the TxDOT MOU
August 20, 2026

I.       Executive Summary: Staff seeks adoption of a proposed rule that adopts by reference the statutorily required Memorandum of Understanding (MOU) between Texas Parks and Wildlife Department (TPWD) and Texas Department of Transportation (TxDOT) regarding review of the environmental impacts of highway construction projects.

 II.     Discussion: Texas Transportation Code section 201.607 requires TxDOT and each state agency that has responsibility for the protection of the natural environment, which includes TPWD, to enter into an MOU that describes each agency’s responsibilities and procedures relating to environmental review of highway projects. Both TxDOT and TPWD must adopt all revisions to the MOU by rule. TPWD and TxDOT recently developed a new MOU, which has already been adopted by TxDOT.

The proposed rule appeared in the July 17, 2026, issue of the Texas Register (51 TexReg 4686). A summary of public comment on the proposed rule will be presented at the time of the meeting.

 III.     Recommendation: Staff recommends that the Texas Parks and Wildlife Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts an amendment to Title 31 of the Texas Administrative Code, section 69.71, as listed in Exhibit A, with changes as necessary to the proposed text as published in the July 17, 2026, issue of the Texas Register (51 TexReg 4686).”

Attachment — 1

Exhibit A – Memorandum of Understanding between the Texas Department of Transportation and the Texas Parks and Wildlife Department

Commission Agenda Item No. 6
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 amendment 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 §§2.201-2.207) provides for TPWD review of TxDOT projects that have the potential to affect natural resources within the jurisdiction of TPWD.  In accordance with Transportation Code, §201.607, TPWD and TxDOT have examined the current MOU and developed a new MOU.  The proposed new MOU was published by TxDOT in the February 13, 2026, issue of the Texas Register (51 TexReg 874). The new MOU has been adopted by TxDOT and the notice of adoption was published in the June 5, 2026 issue of the Texas Register; (51 TexReg 3812).

2. Fiscal Note.

        Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications for the department as a result of enforcement or administration of the rule.

        There will be no fiscal implications for other units of state or local government.

3. Public Benefit/Cost Note.

        Mr. Macdonald also has determined that for each of the first five years that 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 of 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) There will be no adverse economic effect on persons required to comply with the rule as proposed.

        (C) 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. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The guidelines state that an agency need only consider a proposed rule’s “direct adverse economic effects” to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that because the rule is an adoption by reference of an existing rule promulgated by another state agency, and because that agency determined the MOU will not affect any regulated community, the rule will not affect small businesses, micro-businesses, or rural communities. Therefore, the department has determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, are necessary.

        (D) The department 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.

        (E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (F) The department 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.

        (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs by the department;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) not expand, limit, or repeal an existing regulation;

                 (7) not increase the number of individuals subject to regulation; and

                 (8) neither positively nor adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Laura Zebehazy, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4638 (email: laura.zebehazy@tpwd.texas.gov), or via the department website at https://tpwd.texas.gov/.

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 §§2.201-2.206[§§2.201 — 2.214] (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