SECTION 27.44. Improvement of the State Highway System by Regional Tollway Authorities

(a) Request. If requested by a regional tollway authority, and approved as provided in this section, a regional tollway authority may improve a segment of the state highway system. In this section, improvement means construction, reconstruction, and maintenance, and the making of a necessary plan or survey before beginning construction, reconstruction, or maintenance, and includes a project or activity appurtenant to a state highway, including drainage facilities, surveying, traffic counts, driveways, landscaping, lights, or guardrails.

(b) Approval. Except as provided in subsection (d) of this section, the commission may authorize a regional tollway authority to provide for improvement of the state highway system if the regional tollway authority commits in an agreement with the department to comply with all applicable federal, state, and department requirements. In approving a request from a regional tollway authority to provide for improvement of the state highway system, the commission will consider:

(1) the capability of the regional tollway authority to award and manage the construction contract in a timely manner consistent with applicable federal and state laws and regulations;

(2) the need for expeditious project completion;

(3) the cost effectiveness of the regional tollway authority's proposal as compared to the department's management of the project; and

(4) any other considerations relating to the benefit of the state, the traveling public, and the operations of the department.

(c) Agreement. If approved by the commission pursuant to subsection (b) of this section, an agreement will be executed between the department and the regional tollway authority, outlining the responsibilities of each party and including the following provisions.

(1) The regional tollway authority will comply with all applicable federal, state, and department requirements, including, but not limited to, environmental clearance, design standards, construction oversight, and materials testing.

(2) The appropriate department division and/or the Federal Highway Administration must approve the plans, specifications, and estimates, including traffic control plans, before any advertisement of the project for bidding may occur.

(3) If federal or state financial assistance is requested, the regional tollway authority will comply with all federal, state, and department requirements applicable to federal and state financed projects, including, but not limited to, review and approval of bidding procedures, contract documents, and contracts by the appropriate department division or office prior to issuance of proposals or other documents.

(d) Feasibility determinations. The executive director or designee may approve without commission action those improvements that are necessary to determine whether it is feasible to develop a segment of the designated state highway system as a turnpike project, including preliminary plans and surveys. A regional tollway authority may provide those improvements under an agreement with the department that outlines the responsibilities of each party and includes the following provisions.

(1) The regional tollway authority will provide the improvements at its expense.

(2) If feasibility is not achieved, the regional tollway authority will provide the work product to the department.

(3) If federal financial assistance will be requested for the turnpike project, the regional tollway authority will comply with all requirements applicable to federally financed projects.

(4) Any work performed on state highway right of way will be approved in advance by the appropriate department district, including approval of traffic control plans.

(e) Environmental review and public involvement.

(1) When a regional tollway authority proposes an improvement on the state highway system and no federal-aid or state highway funds are used, the regional tollway authority shall complete environmental studies and public involvement in accordance with federal and state requirements and in accordance with Chapter 2, Subchapter C, of this title (relating to Environmental Review and Public Involvement for Transportation Projects).

(2) The department shall determine respective roles and responsibilities. The regional tollway authority shall request that the department make a determination of the respective roles and responsibilities of the regional tollway authority and the department under Chapter 2, Subchapter C, of this title. The regional tollway authority shall comply with the departments directives. The directives will specify who will conduct the following work, either by the regional tollway authority or by the department:

(A) preparation and completion of environmental studies;

(B) submission of appropriate environmental documentation for department review;

(C) preparation of any document revisions;

(D) submission of copies of the environmental studies and documentation adequate for distribution;

(E) preparation of legal and public notices for department review and use;

(F) arrangements for appropriate public involvement, including court reporters and accommodation if requested for persons with special communication or physical needs related to the public hearing;

(G) preparation of public meeting and hearing materials;

(H) preparation of and responses to comments;

(I) preparation of public meeting and public hearing summary and analysis, and the comment and response reports and submission of a verbatim transcript of any public hearing, and a signed certification that any hearing has been held in accordance with §2.43(c) of this title (relating to Non Federal-Aid Transportation Projects), the Civil Rights Act of 1964, and the Civil Rights Restoration Act of 1987; and

(J) submission of documentation showing that all environmental permits, issues, and commitments have been or will be completed, including copies of permits or other approvals required prior to construction.

(3) For proposed projects that will provide new access to a roadway requiring Federal Highway Administration approval for changes in access, the regional tollway authority shall prepare the appropriate environmental documentation in accordance with §2.42 of this title (relating to Federal-Aid Transportation Projects).

(4) When a regional tollway authority proposes to improve the state highway and requests federal-aid or federal-aid and state highway funds to assist with the project in accordance with this section, the project shall be developed in accordance with §2.50 of this title (relating to Financial Assistance for Toll Facilities and Pass-Through Toll Projects).

(f) Acknowledgment. The regional tollway authority must acknowledge in an agreement that, while not an agent, servant, or employee of the state, it is responsible for its own acts and deeds and for those of its agents or employees during the performance of the work authorized in the agreement.

Source Note: The provisions of this §27.44 adopted to be effective April 19, 2000, 25 TexReg 3307; amended to be effective April 21, 2005, 30 TexReg 2235