Section 3: Agreements and Permits

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U.S. Army Corps of Engineers

Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) empowers the Corps of Engineers (COE) to regulate all work on structures other than bridges or causeways that affect the course, condition, or capacity of navigable waters of the United States. This term includes those waters defined as navigable by the U.S. Coast Guard (USCG) but may also include rivers that were historically navigable or that with modification may be available for future use to transport interstate commerce. The determination of navigability will be made by each COE district engineer and is available upon request.

Typical activities for which a project might require authorization under this law include the following:

Additionally, other structures not directly associated with a bridge but affecting a navigable waterway as defined by the COE may also require authorization under this law.

The COE also regulates the discharge of dredged or fill material into all waters of the United States including adjacent wetlands under Section 404 of the Clean Water Act (33 USC Section 1344). The term “waters of the United States” includes all components of a surface tributary system as well as any additional waters or wetlands the loss or degradation of which could affect interstate commerce. See 40 CFR 230.3 for a definition of “waters of the United States.” For waters or wetlands not part of a tributary system, determination of jurisdiction by the appropriate COE district engineer may be needed. The COE may also provide the location and limits of any wetland affect by planned projects. Note that bridges, even though approved by the Coast Guard, require authorization under Section 404 if dredged or fill material is to be discharged in their construction. Some Section 404 permits that are commonly required include Nationwide Permits, General Permits, and Individual Permits.

Certain federal-aid projects may be classified as categorical exclusions and permitted by a special Nationwide Section 404 Permit issued to the Federal Highway Administration (FHWA). These permits are subject to special conditions and management practices. Further information can be obtained from Bridge Division project managers. Most bridge projects, including rehabilitation and replacement projects, fall into this classification.

Normally TxDOT obtains the Section 404 Permit for the bridge itself. The contractor may also need a permit depending on the method of construction. On projects where it is anticipated that the contractor’s construction method may require a permit, it may be desirable to include the work in TxDOT’s application. For example, fill required for a temporary construction road can be included as part of the individual permit. This procedure may save both time and expense during construction.

The Environmental Affairs Division coordinates the Navigable Waterway and Section 404 Permit application processes as required by the COE. Thus, it is crucial to have Environmental Affairs Division involved in the early planning stages to identify the necessary permits and begin the application process.

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U.S. Coast Guard

Section 9 of the Rivers and Harbors Act of 1899 empowers the United States Coast Guard (USCG) to regulate the construction of bridges and causeways within or across navigable waterways as determined by that agency. This regulation includes the approval of plans and the issuance of permits. FHWA, however, has the authority to determine if a USCG permit is not required.

In the state of Texas the principal navigable waterways involved include:

Most rivers and streams entering the Gulf of Mexico are technically navigable for a specified distance inland from their mouth. If a project is planned for any of these principal waterways, it is important to have both FHWA and the USCG involved early in the planning process.

For all crossings of these navigable waterways, observe the following procedures:

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  • Determine clearances and general features affecting the waterway for both new structures and modifications to existing structures with USCG.
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  • Obtain a formal permit to construct a highway facility from the proper USCG district.
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  • The TxDOT district will prepare permit applications and transmit the original tracings of these applications to the Environmental Affairs Division for handling with the USCG.

The USCG web page has vertical and horizontal clearances for specific waterways. Contact the Environmental Affairs Division for further information on US Coast Guard permits, including permit requirements and procedures.

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Environmental Protection Agency

The Environmental Protection Agency (EPA) administers and issues permits for non-point source pollutants associated with industrial activities (construction) and Municipal Separate Storm Sewer Systems (MS4) permits. For further information, contact ENV for details on requirements for permits and the most current agreements.

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The Rail Division’s Rail Safety Section (RRD-RSS) is the Department’s Office of Primary Responsibility for railroad issues, and it works closely with the District and Bridge Division project manager in preparation of state-railroad agreements involving structures.

RRD-RSS works closely with the Bridge Division project manager regarding negotiations with the railroad companies in connection with the preparation of agreements and securing force account estimates often required with the following types of projects and agreements:

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  • Highway-railroad grade separation agreements
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  • Spur track agreements
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  • Automatic warning system agreements
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  • Agreements for relocation of existing highway-railroad protective devices
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  • Construction and reconstruction of culverts under railroad tracks and other drainage improvements
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  • Drainage system agreements and common ditch agreements
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  • Agreements or permits for the interconnection of highway traffic signals with railroad flashing light signals
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  • Agreement for replacement of highway-railroad grade crossing, including any adjustment of track grade
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  • Railroad force account agreements for new highway or highway reconstruction projects including planking, pole line adjustments, relocation of existing highway-railroad warning systems and State’s right to cross railroad property
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  • Agreement to enter railroad company right of way for surveying and/or drilling soil borings
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International Boundary and Water Commission

The International Boundary and Water Commission (IBWC) has jurisdiction along the boundary between the United States and Mexico. Submit work proposed within the flood plain and adjacent to the main channel of the Rio Grande where it forms the international boundary between the United States and Mexico to IBWC for its review and approval before any work is done. Submit preliminary notifications and plans of proposed work and facilities at appropriate times to the Bridge Division project manager for processing with the IBWC. Licenses or agreements will be prepared when appropriate for highways crossing or encroaching upon the IBWC flood control facilities along the Rio Grande.

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Natural Resources Conservation Service

The Natural Resources Conservation Service (NRCS) can construct reservoirs that may affect our highways. The NRCS always operates with a local sponsor, and where the floodwater-impeding structures built by this agency affect our highways, the local sponsor bears the cost of raising, relocating, or protecting our highways in accordance with the following policy:

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  • If a highway or road operated by TxDOT will be inundated at less than the calculated fifty-year frequencies by construction of a floodwater-impeding structure, NCRS or one of its cooperating agencies usually provides funds necessary to raise or relocate the road above the water surface elevation that might be expected at fifty-year frequency intervals.
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  • If a highway or road operated by TxDOT will not be inundated by floods of less than a fifty-year calculated frequency, TxDOT will 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 necessitates raising the grade.

The Bridge Division project manager, assisted by the district, will negotiate for a satisfactory settlement.

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Navigation Districts, Water Districts, Irrigation Districts, Water and River Authorities

Where the State, Navigation District, Water District, Irrigation District, or Water and River Authority undertake construction that affects the rights of another, the Bridge Division project manager negotiates a satisfactory agreement setting forth the financial responsibility and commitments of each party involved.

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Local Government Agencies

For bridges within the boundaries of a local government yet under the jurisdiction of TxDOT (on-state system), the two entities must negotiate a Municipal Maintenance Agreement to determine and fix the respective responsibilities of the department and the local government for maintenance, control, supervision, and regulation of these designated state highways. Municipal Maintenance Agreements are coordinated through the Maintenance Division. If the project has an advanced funding agreement (AFA) addressing these issues, a Municipal Maintenance Agreement is not necessary.

When a local government is responsible for providing financial assistance for a highway improvement project, TxDOT and the local government will enter into an agreement. Standard AFAs can be obtained from the Contract Services Division web page.

Contact the Financial Management Division Letting Section to request a control-section-job (CSJ) number prior to the initiation of any agreement. The Contract Services Negotiated Contracts Policy Manual establishes procedures for negotiating, preparing, executing, administering, and closing out the agreement for the bridge project and describes the responsibilities of the districts and the divisions involved in the project.Agreements between the State and a local government are also necessary when dealing with historically significant bridges. Examples of such agreements can be found in the Historic Bridge Manual. Historic bridge amendments and agreement templates can be obtained from the Contract Services Division web page.

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Louisiana, Arkansas, Oklahoma, New Mexico

Where either Texas or an adjoining state undertakes construction along the Texas border that affects the rights of the other, the Bridge Division project manager negotiates a satisfactory agreement setting forth the financial responsibility and commitments, including maintenance and liability, of each party involved. Additional information can be found in Advanced Planning -- Considerations Based on Bridge Location, in Chapter 4 of this manual.

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Presidential Permits are required to convey permission for construction and maintenance of facilities connecting the United States with Mexico. Although TxDOT has no direct interaction with Mexico that involves agreement negotiation, several TxDOT divisions are involved in the Presidential Permit process. Further information on Presidential Permits, and the application process, can be found in the paragraph titled Advanced Planning -- Considerations Based on Bridge Location, in Chapter 4 of this manual.

Interaction and coordination with the International Boundary and Water Commission occurs when proposed work falls within the flood plain and adjacent to the main channel of the Rio Grande, where it forms the international boundary between the United States and Mexico.

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