1. (a) Nonfederal sponsorship. The commission, under Transportation Code, Chapter 51, is charged with the responsibility of administering the state's nonfederal sponsorship of the Gulf Intracoastal Waterway (GIWW), including coordination with the U.S. Army Corps of Engineers, all other appropriate federal and state agencies, navigation districts and port authorities, counties, and other appropriate persons.

2. (b) Disposal of dredged material.

   1. (1) Disposal plan. The department may participate in the development of a disposal plan for dredged material.
   2. (2) Laguna Madre disposal plans. Legislative approval is necessary for any substantive changes to the disposal plan developed for the Laguna Madre reach of the GIWW dated October 11, 2002.

   3. (3) Beneficial use project. The department may participate in the development of a beneficial use project for dredged material.

      1. (A) Proposals. The department will accept from the U.S. Army Corps of Engineers proposals for beneficial use projects in the following broad use categories:

         1. (i) habitat development;
         2. (ii) beach nourishment;
         3. (iii) aquaculture;
         4. (iv) parks and recreation;
         5. (v) agriculture, forestry and horticulture;
         6. (vi) strip mine reclamation and solid waste management;
         7. (vii) shoreline stabilization and erosion control;
         8. (viii) construction and industrial use;
         9. (ix) material transfer (fill, dikes, levees, parking lots, roads); and
         10. (x) multiple purposes (the combination of categories on a single dredging project).

      2. (B) Submittal of proposals. The U.S. Army Corps of Engineers will submit proposals in writing to the executive director or his or her designee. The proposals will include:

         1. (i) a description of the proposed beneficial use project and anticipated benefits;
         2. (ii) a map delineating the location or locations of the proposed beneficial use project;
         3. (iii) a proposed project schedule including an anticipated completion date;
         4. (iv) a detailed estimate of the project cost, including an estimate of the U.S. Army Corps of Engineers' financial contributions to the project; and
         5. (v) a plan addressing the operation and maintenance of the facility created by or benefiting from the beneficial use project.
3. (c) Early coordination. Early coordination with appropriate state and federal agencies will be conducted by the department to develop a proposal for disposal alternatives or a beneficial use project involving a segment of the GIWW identified by the U.S. Army Corps of Engineers as in need of maintenance dredging. Any proposal will address the dredged material disposal needs of maintaining the GIWW in Texas. The department is responsible for initiating and overseeing early coordination.

4. (d) Investigation of disposal alternatives.

   1. (1) The department will utilize a task force of the Gulf Intracoastal Waterway Advisory Committee (GIWAC) or federal interagency coordination team to participate in investigating disposal alternatives and beneficial use projects involving a segment of the GIWW identified by the U.S. Army Corps of Engineers as in need of maintenance dredging and evaluate the environmental and operational suitability of each. The task force will include representatives from state and federal agencies having jurisdiction in the protection of the state's natural, historic, and economic resources.
   2. (2) The department or U.S. Army Corps of Engineers will lead any field investigations. The task force agencies will be requested to participate in field investigations and to provide to the department written evaluations of the disposal alternatives and beneficial use projects investigated.
   3. (3) The GIWAC or federal interagency coordination team will review the investigations and discuss with the department any proposed disposal alternatives or beneficial use projects.

5. (e) Federal coordination.

   1. (1) After review by the GIWAC or federal interagency coordination team, the department will request the U.S. Army Corps of Engineers to coordinate the environmental analysis pursuant to 42 United States Code §§4321 et seq.
   2. (2) If the U.S. Army Corps of Engineers' environmental analysis determines a finding of no significant impact for the proposed disposal plan or beneficial use project, the division will then review the environmental document and findings. If the division determines that the proposed disposal plan or beneficial use project can be accomplished in an environmentally acceptable manner, the department will then proceed with public involvement.

6. (f) Public involvement. Public involvement will be accomplished primarily through the U.S. Army Corps of Engineers' environmental and public involvement procedures; however, the department will conduct its own public involvement process.

   1. (1) Preliminary involvement.

      1. (A) The department will notify a public or private landowner of a parcel's environmental and operational suitability for the proposed disposal plan or beneficial use project, and offer to meet with the landowner to answer any questions about the proposed disposal plan or beneficial use project.
      2. (B) The department will also notify the landowner of any public meeting or public hearing on the proposed disposal plan or beneficial use project.
      3. (C) Meetings, as one form of public involvement, will be held with individuals owning property adjacent to the project and with other affected property owners (e.g., business, governmental entity that may be impacted) in accordance with §2.43(c)(2) of this subchapter, if those parties request such a meeting related to the proposed disposal plan or beneficial use project.
      4. (D) Public meetings, as another form of public involvement may be held in accordance with §2.43(c)(3) of this subchapter.
   2. (2) Public Meetings. A notice of public meeting will be advertised through legal notices published in a newspaper of general circulation, published in the county seat of each county in which any such proposed dredged material disposal plan or beneficial use project is located.

   3. (3) Public Hearings. A public hearing, when required, will be conducted by the commission pursuant to Transportation Code, Chapter 51. A hearing is required under Transportation Code, Chapter 51, if a disposal plan or beneficial use project requires the acquisition of an interest in property.

      1. (A) Prior to the hearing, the commission will publish notice of a public hearing, indicating date, time, and place of the hearing, at least once a week for three successive weeks in a newspaper of general circulation published in the county seat of each county in which any such proposed dredged material disposal plan or beneficial use project is located.
      2. (B) The commission will also publish notice of the hearing in at least one edition of the Texas Register.
      3. (C) The U.S. Army Corps of Engineers' environmental documents and findings will be on display at the public hearing.
      4. (D) Comments, testimony, or evidence may be given in person or in writing during the public hearing or may be submitted in writing to the commission during the prescribed public comment period.

7. (g) Commission action.

   1. (1) Disposal plans.

      1. (A) After the public hearing and receipt of all evidence and testimony, the commission will determine whether such proposed dredged material disposal plan can be accomplished without unjustifiable waste of publicly or privately owned natural resources and without permanent substantial adverse impact on the environment, wildlife, or fisheries.
      2. (B) If the commission determines that the proposed plan meets the criteria described in subparagraph (A) of this paragraph, it will authorize the department to proceed with the necessary actions to accomplish the disposal plan.

   2. (2) Beneficial use projects.

      1. (A) Approval. After any required public involvement, and receipt of all evidence and testimony, the commission will approve department participation in a beneficial use project provided funds are available for the beneficial use project, all requirements of NEPA have been satisfied by the U.S. Army Corps of Engineers, and the project:

         1. (i) is proposed by the U.S. Army Corps of Engineers;
         2. (ii) proposes one or more beneficial use activities having a direct relationship of function or impact to the GIWW;
         3. (iii) can be accomplished without permanent substantial adverse impact on the environment, wildlife, or fisheries;
         4. (iv) can be accomplished without unjustifiable waste of publicly or privately owned natural resources;
         5. (v) has substantial local support, as evidenced through the public involvement process and documentation, including, at a minimum, a resolution or other official document from the governing body of the city or county with jurisdiction over the project area (for project areas involving multiple jurisdictions, the governing body of the city or county within which the majority of the project area is located, in consultation with the other involved jurisdictions, must provide the resolution or other official document);
         6. (vi) is limited to a logical unit of work and is capable of being implemented and completed within a reasonable time as determined by the department; and
         7. (vii) is consistent with the Texas Coastal Management Program.

      2. (B) Financial participation.

         1. (i) Except as provided in clause (ii) of this subparagraph, the commission will establish an eligible cost of the proposed beneficial use project by calculating the total estimated cost of the project in excess of the established federal standard for dredged material disposal. The department's financial participation in the project will not exceed 50% of eligible cost.
         2. (ii) The commission may authorize participation at levels exceeding 50% if the commission determines the additional participation will result in extraordinary environmental or economic benefits or the costs are reasonably comparable to the costs of providing property to accommodate traditional upland disposal.
         3. (iii) If approved under this paragraph the commission will enter into an agreement with the Department of the Army to participate in the cost of a project to beneficially use material dredged from the GIWW.
         4. (iv) Department funding shall not be used for maintenance or operation of a beneficial use project.
         5. (v) All project expenditures must conform to applicable provisions of state and federal law.

Source Note:The provisions of this §2.44 adopted to be effective December 9, 2004, 29 TexReg 11371.