(a) The project sponsor will seek to avoid and minimize adverse environmental impacts.
(b) If adverse environmental impacts cannot be avoided, and efforts to minimize those impacts have been exhausted, the project sponsor may, in consultation with the department delegate and appropriate agency or agencies, propose compensatory mitigation, in accordance with this section, that will be included in an environmental review document. Compensatory mitigation may rectify impacts by repairing, rehabilitating, or restoring the affected environment, or by replacing or providing for substitute resources or environments.
(c) For a transportation project developed by the department, the project sponsor may propose as compensatory mitigation any of the actions described by this subsection.
  (1) Under Transportation Code, §201.606, if the department acquires for a transportation project property that is habitat of one or more species listed as endangered under the Endangered Species Act (16 U.S.C. §1531 et seq.) and the property is within the boundaries of a regional habitat conservation plan, the department may participate in the regional habitat conservation plan.
  (2) If the comptroller has designated the department to undertake functions under Government Code, Chapter 403, Subchapter Q (relating to Support for Habitat Protection Measures), the department may develop or coordinate the development of a habitat conservation plan or candidate conservation plan in accordance with that subchapter, or undertake any other actions authorized under that subchapter.
(d) For a highway project developed by the department, the project sponsor may propose as compensatory mitigation any of the actions described by this subsection, in addition to those described in subsection (c) of this section.
  (1) Under Transportation Code, §201.617, if authorized by the appropriate regulatory agency or agencies, the department may undertake any of the following as compensatory mitigation for adverse environmental impacts that are a direct result of the construction, improvement, or maintenance of a state highway or the construction, improvement or maintenance of a facility used in connection with the construction, maintenance, or operation of a state highway:
    (A) payment of a fee to an appropriate public agency or private entity in lieu of acquiring or agreeing to manage property;
    (B) the transfer of any interest in real property to an appropriate public agency or private entity with or without monetary consideration if the property is used or is proposed to be used for mitigation purposes; or
    (C) a contractual agreement with any public or private entity for the management of property owned by the department and used for mitigation purposes.
  (2) Under Transportation Code, §201.617, before the department acquires by purchase or condemnation real property to mitigate an adverse environmental impact that is the direct result of a state highway improvement project, the department will, if authorized by the appropriate regulatory authority, offer to purchase a conservation easement from the owner of the real property. If the landowner does not accept the offer before the 61st day after the date the offer is made, the department may acquire the property by purchase or condemnation.
  (3) Under Transportation Code, §203.052, the department may acquire an interest in real property, a property right, or a material under Transportation Code, §203.051, if the commission determines that the acquisition is necessary or convenient to mitigate an adverse environmental effect that directly results from construction or maintenance of the state highway system.
  (4) Under Transportation Code, §201.610, the department may erect a sound barrier to reduce noise from a road or highway on the state highway system.
(e) For highway projects for which a local government is the project sponsor and is responsible for mitigation, the local government may, in consultation with the department delegate and the appropriate agency or agencies, propose compensatory mitigation in any of the forms listed in subsection (c) or (d) of this section, or in any other form authorized by law. If the project concerns a segment of the state highway system, this chapter does not prevent a local government sponsor from seeking to use a department-funded mitigation bank for compensatory mitigation on a given project. However, as between the department and a local government sponsor, use of such a mitigation bank, and the terms of that use, will be decided by the department at its sole discretion.

Source Note: The provisions of this §2.13 adopted to be effective April 16, 2012, 37 TexReg 1727