1. (a) Taking of designated public land. Approval by the department of the use of public land designated and used as a park, recreation area, or wildlife refuge, historic site, or scientific area will be given only if:

   1. (1) there is no feasible or prudent alternative to the use of land from the property;
   2. (2) the project includes all possible planning to minimize harm to the property resulting from such use, including mitigation measures;
   3. (3) supporting information demonstrates that there are unique problems or unusual factors involved in the use of alternatives that avoid these properties or that the cost, social, economic, and environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes; and
   4. (4) supporting information documents that officials having jurisdiction over an acquisition have no jurisdictional opposition to the acquisition and that the proposed mitigation is acceptable to such jurisdictions.
   5. (5) Projects that fall under this subsection will comply with all necessary environmental analysis, documentation, and interagency coordination as described in this subchapter.
   6. (6) A public hearing will be held as described in §2.43(c)(5) of this subchapter with appropriate notification.
2. (b) Early and advance acquisition. Early and advance acquisition under 23 Code of Federal Regulations §§710.501-710.505 includes protective buying, hardship acquisition, and real property donations. Completion of environmental documentation for early and advance acquisition shall apply to the acquisition of a specific parcel only and shall not imply approval of the construction project. Acquisition of a parcel under early and advance acquisition shall not influence the final environmental decision regarding the build, no-build decision or a decision regarding the project alignment. Prior to the acquisition of real property under 23 Code of Federal Regulations Chapter 710, the department will complete a categorical exclusion analysis under §2.43 of this subchapter to determine whether the acquisition will cause significant environmental impacts and to identify any environmental liabilities associated with the acquisition.

Source Note:The provisions of this §2.46 adopted to be effective December 9, 2004, 29 TexReg 11371.