SECTION 15.54. Construction

(a) Purpose. This section describes the conditions under which state, federal and local financing of construction costs are to be shared.

(b) Funding. Construction costs may be funded by the commission at the entire expense of the department, with local participation, and/or with federal participation, as described in §15.55 of this title (relating to Construction Cost Participation), and in accordance with criteria set forth by federal and state law and regulations. The local government shall also be responsible for the total cost of any work included which is ineligible for federal or state participation as specified in §15.52 of this title (relating to Agreements).

(c) Sidewalks. The department will also provide for sidewalk construction, accomplished in accordance with the requirements of the Americans with Disabilities Act and other applicable state and federal laws, on designated state highway system routes:

(1) when replacing an existing sidewalk;

(2) where highway construction severs an existing sidewalk system (the state will make connections within highway right of way to restore sidewalk system continuity); or

(3) where pedestrian traffic is causing or is expected to cause a safety conflict.

(d) Control of Access on Freeway Mainlanes.

(1) For facilities with full control of access, such as interstate highways or freeways developed by commission designation pursuant to Transportation Code, Chapter 203, access to the main travel lanes is fully controlled through designation, purchase of access rights, or provision of frontage roads.

(2) The department will include frontage roads in the planning stage of highways with full access control when:

(A) it is necessary to unlandlock the remainder of a parcel of land which has a value equal to or nearly equal to the cost of the frontage road;

(B) the appraised damages, resulting from the absence of frontage roads at the time of planning, would exceed the cost of the frontage roads; or

(C) it is necessary to restore circulation of local traffic due to local roads or streets being severed or seriously impaired by the construction of the controlled access highway, and an economic analysis shows the benefits derived more than offset the costs of constructing and maintaining the frontage roads.

(3) In those instances where requests for additional frontage roads are received during or subsequent to the planning stage or after the freeway has been constructed, they may be considered and placed in order of the priority of highway needs.

(A) When right of way and utility adjustment costs are shared with a local government on a standard participation basis applicable to the highway designation, the department may assume 100% responsibility for additional frontage road construction as follows:

(i) on relatively short sections of frontage roads where through lane traffic is experiencing high accident rates due to local access and where such construction can be expected to substantially improve safety; or

(ii) in heavily traveled urban corridors where gaps occur in the existing frontage road systems, and closing these frontage road gaps will restore system continuity and provide a cost-effective method of enhancing traffic operations in the corridor.

(B) The department may assist a requesting local government in the construction of additional frontage roads as follows:

(i) where a usable section of frontage road that will be of benefit to the traveling public is to be developed (usable section being defined as an addition or extension from a cross road separation to cross road separation or connecting to a public roadway or major traffic generator);

(ii) where such frontage road construction is judged to not adversely impact existing traffic operations or safety;

(iii) where the department is responsible for design and construction of the added frontage roads; and

(iv) except as provided in subparagraph (E) of this paragraph, and as adjusted under §15.55 of this title (relating to Construction Cost Participation), when the requesting local government furnishes 100% of needed right of way and utility adjustment costs and 50% of the cost of construction, including preliminary and construction engineering.

(C) The department may approve additional frontage road construction, which is 100% funded by the requesting local government as follows:

(i) if the frontage road construction primarily provides new or improved access to abutting property and does not necessarily provide a usable section as defined in subparagraph (B)(i) of this paragraph (a type of addition that would provide limited benefits to the general traveling public); and

(ii) except as provided in subparagraph (E) of this paragraph, where the department is responsible for designing and constructing the frontage road and the requesting local government is responsible for 100% of the construction, right of way, and utility adjustment costs including preliminary and construction engineering.

(D) Where right of way costs are 100% the responsibility of the requesting local government, relocation assistance benefits will also be 100% the responsibility of the local government and must be accomplished in compliance with department policies and procedures.

(E) The department may waive any one or more of the cost conditions stated in subparagraphs (B)(iv) and (C)(ii) of this paragraph, provided that the waiver is first approved by written order of the commission. In approving a waiver, the commission will base its decision on consideration of the population level, bonded indebtedness, tax base, and tax rate of the local government involved, or other conditions the commission deems pertinent.

(4) For additional frontage roads requested subsequent to the planning stage or after the freeway has been constructed, control of access as originally conceived for the facility may be modified to allow access to the proposed frontage road only to the extent as may be permitted by safety considerations and in keeping with department policies and procedures. The sale or disposal of access rights shall be accomplished in accordance with Chapter 21, Subchapter F of this title (relating to Disposal of Real Estate Interests).

(5) Access driveway connections shall be for securing access to abutting property. Costs and provision thereof shall be in accordance with the criteria and responsibilities established in §§11.50-11.55 of this title (relating to Access Connections to State Highways).

(e) Drainage Construction Costs.

(1) In general, it shall be the duty and responsibility of the department to construct, at its expense, a drainage system within state highway right of way, including outfalls, to accommodate the storm water which originates within and reaches state highway right of way from naturally contributing drainage areas.

(2) Where a drainage channel, man-made, natural, or a combination of both, is in existence prior to the acquisition of highway right of way, including right of way for widening the highway, it shall be the duty and responsibility of the state to provide for the construction of the necessary structures and/or channels to adjust or relocate the existing drainage channel in such a manner that the operation of the drainage channel will not be injured. The construction expense required shall be considered a construction item. The acquisition of any land required to accomplish this work shall be considered a right of way item, with cost participation to be in accordance with §15.55 of this subchapter (relating to Construction Cost Participation).

(3) The department, at its expense, shall adjust the structure and/or channels within the existing highway right of way as necessary to accommodate the approved drainage plan:

(A) where an existing highway crosses an existing drainage channel, and a political unit or subdivision with statutory responsibility for drainage develops a drainage channel to improve its operation, both upstream and downstream from the highway;

(B) after the state establishes that the drainage plan is logical and beneficial to the state highway system;

(C) where there is no storm water being diverted to the highway location from an area which, prior to the drainage plan, did not contribute to the channel upstream of the highway; and

(D) after construction on the drainage channel has begun or there is sufficient evidence to insure that the drainage plan will be implemented.

(4) A drainage facility may not be built across state highway right of way unless the person building the facility pays the entire costs of construction and maintenance. The design, construction, operation, and maintenance procedures for the facility within state highway right of way must be acceptable to the department.

(5) A local government may not use a department drainage system unless it pays for the entire cost of collecting and carrying its water to the department system and its proportional share of all costs relating to the system and outfall. The local government's proportional share shall be the ratio of cubic feet of water per second that it delivers into the department system, divided by total cubic feet of water per section that is carried by the system. The local government requesting the drainage diversion shall indemnify the state against or otherwise acknowledge its responsibility for damages or claims for damages resulting from such diversion.

(f) Highway adjustments for reservoir construction.

(1) Where existing highways and roads provide a satisfactory traffic facility in the opinion of the department and no immediate rehabilitation or reconstruction is contemplated, it shall be the responsibility of the reservoir agency, at its expense, to replace the existing road facility disturbed by reservoir construction in accordance with the current design standards of the department, based upon the road classification and traffic needs.

(2) Where no highway or road facility is in existence but where a route has been designated for construction across a proposed reservoir area, the department will bear the cost of constructing a satisfactory facility across the proposed reservoir, on a line and grade for normal conditions of topography and stream flow, and any additional expense as may be necessary to construct the highway or road facility to line and grade to comply with the requirements of the proposed reservoir shall be borne by the reservoir agency.

(3) In soil conservation and flood control projects involving the construction of flood retarding structures where a highway or road operated by the department will be inundated at less than calculated 50-year frequencies by the construction of a floodwater retarding structure, the soil conservation service or one of its cooperating agencies will provide funds as necessary to raise or relocate the road above the water surface elevation which might be expected at 50-year intervals. In those cases where a highway or road operated by the department will not be inundated by floods of less than 50-year calculated frequency, it will be the responsibility of the department to underwrite this hazard for the general welfare of the state and continue to operate the road at its existing elevation until such time as interruption and inconvenience to highway travel may necessitate raising the grade.

(g) Irrigation crossings.

(1) Where an irrigation facility is in existence prior to the acquisition of highway right of way, including right of way for widening, and the highway project will interfere with such a facility, the following provisions shall govern.

(A) If, at the place of interference, the irrigation facility consists primarily of an irrigation canal which crosses the entire width of the proposed right of way, this shall be considered a crossing and it shall be the duty and responsibility of the department to construct and maintain an adequate structure and to make the necessary adjustments or relocations of minor laterals and pumps, etc., associated with the crossing, in such a manner that the operation of the irrigation facility will not be injured. The construction work at a crossing will be considered a construction item with the expense to be borne by the department. The acquisition of any land required to accomplish the adjustments and/or relocation shall be a right of way item.

(B) Any irrigation facility encountered which does not cross the right of way and consists primarily of a longitudinal canal and/or associated irrigation appurtenances such as pumps, gates, etc., which must be removed and relocated shall be considered a right of way item.

(C) In those cases where both crossing and longitudinal adjustments or relocation of irrigation facilities are encountered, each segment shall be classified in accordance with subparagraph (A) and (B) of this paragraph.

(2) An irrigation facility may not be built across state highway right of way unless the person building the facility pays the entire cost of construction and maintenance. The design, construction, operation, and maintenance procedures for the facility within highway right of way must be acceptable to the department.

(h) Traffic signals and continuous and safety lighting systems. The installation, maintenance, and operation of traffic signals and continuous and safety lighting systems shall be accomplished in accordance with §25.5 of this title (relating to Installation, Operation, and Maintenance of Traffic Signals) and §25.11 of this title (relating to Continuous and Safety Lighting Systems).

Source Note: The provisions of this §15.54 adopted to be effective September 26, 1996, 21 TexReg 8957; amended to be effective January 1, 1998, 22 TexReg 12090; amended to be effective November 22, 1998, 23 TexReg 11661; amended to be effective February 21, 1999, 24 TexReg 1194; amended to be effective January 9, 2005, 29 TexReg 12241