1. (a) Social and environmental impact.

   1. (1) General. A developer that is responsible for the construction of a project shall conduct the environmental review and public involvement for the project in the manner prescribed by Chapter 2, Subchapter C of this title (relating to Environmental Review and Public Involvement for Transportation Projects). The department may choose to conduct the environmental review and public involvement.
   2. (2) Commission approval. The commission must approve each environmental review under this section before construction of the project begins.

2. (b) Design and construction.

   1. (1) Responsibility. The developer is fully responsible for the design, construction, and, operation, as applicable, of each project it undertakes. This responsibility includes ensuring that all EPIC are addressed in project design and carried out during project construction and operation.

   2. (2) Design criteria.

      1. (A) State criteria. All designs developed by or on behalf of the developer shall comply with the latest version of the department's manuals, including, but not limited to, the Roadway Design Manual, Pavement Design Manual, Hydraulic Design Manual, the Texas Manual on Uniform Traffic Control Devices, and Bridge Design Manual, and the Texas Accessibility Standards.
      2. (B) Alternative criteria. A developer may request approval to use different accepted criteria for a particular item of work. Alternative criteria may include, but are not limited to, the latest version of the AASHTO Policy on Geometric Design of Highways and Streets, the AASHTO Pavement Design Guide, and the AASHTO Bridge Design Specifications. The use of alternative criteria is subject to the approval of the Federal Highway Administration for those projects involving federal funds. The executive director may approve the use of alternative criteria if the alternative criteria are determined to be sufficient to protect the safety of the traveling public and protect the integrity of the transportation system.
      3. (C) Exceptions to design criteria. A developer may request approval to deviate from the state or alternative criteria for a particular design element on a case by case basis. The request for approval shall state the criteria for which an exception is being requested and must include a comprehensive description of the circumstances and engineering analysis supporting the request. The executive director may approve an exception after determining that the particular criteria could not reasonably be met due to physical, environmental, or other relevant factors and that the proposed design is a prudent engineering solution.

   3. (3) Access.

      1. (A) Access management. Access to the facility shall be in compliance with the department's access management policy.
      2. (B) Interstate access. For proposed projects that will change the access control line to an interstate highway, the developer shall submit to the department all data necessary for the department to request Federal Highway Administration approval.

   4. (4) Preliminary design submission and approval. When design is approximately 30% complete (or as otherwise provided in an agreement), the developer shall send the following preliminary design information to the department for review and approval in accordance with the procedures and timeline established in the project development agreement described in subsection (d) of this section:

      1. (A) a completed Design Summary Report form as contained in the department's Project Development Process Manual;
      2. (B) a design schematic depicting plan, profile, and superelevation information for each roadway;
      3. (C) typical sections showing existing and proposed horizontal dimensions, cross slopes, location of profile grade line, pavement layer thickness and composition, earthen slopes, and right of way lines;
      4. (D) bridge, retaining wall, and sound wall layouts;
      5. (E) hydraulic studies and drainage area maps showing the drainage of waterways entering the project and local project drainage;
      6. (F) an explanation of the anticipated handling of existing traffic during construction;
      7. (G) when structures meeting the definition of a bridge as defined by the National Bridge Inspection Standards are proposed, an indication of structural capacity in terms of design loading;
      8. (H) an explanation of how the U.S. Army Corps of Engineers permit requirements, including associated certification requirements of the Texas Commission on Environmental Quality, will be satisfied if the project involves discharges into waters of the United States; and
      9. (I) the location and text of proposed mainlane guide signs shown on a schematic that includes lane lines or arrows indicating the number of lanes.

   5. (5) Construction specifications.

      1. (A) All plans, specifications, and estimates developed by or on behalf of the developer shall conform to the latest version of the department's Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges, and shall conform to department-required special specifications and special provisions.
      2. (B) The executive director may approve the use of an alternative specification if the proposed alternative specification is determined to be sufficient to ensure the quality and durability of the finished product for the intended use and the safety of the traveling public.

   6. (6) Submission and approval of final design plans and contract administration procedures. When final plans are complete, the developer shall send the following information to the executive director for review and approval in accordance with the procedures and timelines established in the project development agreement described in subsection (e) of this section:

      1. (A) seven copies of the final set of plans, specifications, and engineer's estimate (PS&E) that have been signed and sealed by the responsible engineer;
      2. (B) revisions to the preliminary design submission previously approved by the department in a format that is summarized or highlighted for the department;
      3. (C) a proposal for awarding the construction contract in compliance with applicable state and federal requirements;
      4. (D) contract administration procedures for the construction contract with criteria that comply with the applicable national or state administration criteria and manuals; and
      5. (E) the location and description of all EPIC addressed in construction.

   7. (7) Construction inspection and oversight.

      1. (A) Unless the department agrees in writing to assume responsibility for some or all of the following items, the developer is responsible for:

         1. (i) overseeing all construction operations, including the oversight and follow through with all EPIC;
         2. (ii) assessing contract revisions for potential environmental impacts; and
         3. (iii) obtaining any necessary EPIC required for contract revisions.
      2. (B) The department may inspect the construction of the project at times and in a manner it deems necessary to ensure compliance with this section.
   8. (8) Contract revisions. All revisions to the construction contract shall comply with the latest version of the applicable national or state administration criteria and manuals, and must be submitted to the department for its records. Any revision that affects prior environmental approvals or significantly revises project scope or the geometric design must be submitted to the executive director for approval prior to beginning the revised construction work. Procedures governing the executive director's approval, including time limits for department review, shall be included in the project agreement described in subsection (e) of this section.
   9. (9) As-built plans. Within six months after final completion of the construction project, the developer shall file with the department a set of the as-built plans incorporating any contract revisions. These plans shall be signed, sealed, and dated by a professional engineer licensed in Texas certifying that the project was constructed in accordance with the plans and specifications.
   10. (10) Document and information exchange. The developer agrees to deliver to the department all materials used in the development of the project including, but not limited to, aerial photography, computer files, surveying information, engineering reports, environmental documentation, general notes, specifications, and contract provision requirements.
   11. (11) State and federal law. The developer shall comply with all federal and state laws and regulations applicable to the project and the state highway system, and shall provide or obtain all applicable permits, plans, and other documentation required by a federal or state entity.
3. (c) Contracts. All contracts for the development, construction, or operation of a project shall be awarded in compliance with applicable law.
4. (d) Federal law. If any federal funds are used in the development or construction of a project under this subchapter, or if the department intends to fund pass-through toll payments with federal funds, the development and construction of the project shall be accomplished in compliance with all applicable federal requirements.

5. (e) Project development agreement. The developer and the department shall enter into an agreement governing the development of a project under this subchapter. The agreement shall, at a minimum, include:

   1. (1) the responsibilities of each party concerning the design and construction of the project;
   2. (2) procedures governing the submittal of information required by this subchapter;
   3. (3) timelines governing approvals of the executive director under this subchapter; and
   4. (4) other terms or conditions mutually agreed upon by the parties.

Source Note:The provisions of this §5.58 adopted to be effective April 15, 2004, 29 TexReg 3640.