Based on a detailed study of current operations of land use, the department shall determine the necessity, location, and design of all passes and cattle guards. The use of a pass across the right-of-way may be by permit, contractual agreement, or retention of pass rights in the conveyance of right-of-way to the state. (1) Interstate, primary, and secondary systems. On the interstate highway system and the primary and secondary highway systems where right-of-way is being secured pursuant to Texas Civil Statutes, Article 6673e-1, the following policies shall apply. (A) Where a landholding constitutes an operating farm, ranch or other rural area type of economic operation which a new highway location or relocation severs, or where an existing highway is to be developed into a multi-lane facility, it shall be the policy of the department to negotiate with the landowner for a pass or cattle guard with the objective of continuing, if possible,
uninterrupted usage and operation of such landholding. (B) Where a property owner requests a pass to accommodate his private operations which have evolved since the construction of an existing highway, and the department determines the need for such a pass, and the structure can be constructed without interference with the safe operation of the highway, such pass may be installed provided the property owner or others will bear the entire cost of such installation. (C) When it is necessary to reconstruct or extend an existing cattle guard and/or an existing structure which serves as a pass, the department will bear the entire cost of a new or extended cattle guard and/or pass as required to permit the continued pass usage which previously existed. (D) When a structure designed and constructed for drainage purposes is of sufficient size to be used as a pass, the entire cost of the structure will be borne by the department.
(E) Where a structure proposed for drainage is not large enough to serve as a pass and the abutting property owner requests that the structure be enlarged to serve as such, or requests a pass where no drainage structure is proposed and the department determines the need for such pass, the department will negotiate with the property owner. (F) Negotiations with the property owner shall be based on the following: (i) appraisals will be made to establish market value of the right-of-way parcel and damages to the remainder both with and without the proposed pass; and (ii) the estimated cost of a pass will be based upon a length, width, and height necessary to pass under or over a two-lane highway of two 12-feet lanes with centerline surface not more than eight feet above the structure, with two shoulders of 10 feet width and 2:1 embankment side slopes. Using the economic difference in damages as established by the
appraisals, if such difference equals or exceeds the estimated cost of such a structure, the department will bear all of the costs of the structure, provided the landholder agrees to a reduction in compensation in the amount of damages offset by providing the pass. In those instances where the damages offset are less than the two-lane structure cost, a compensating reduction may be made in the amount of compensation due for the cost of the land to be acquired for right-of-way, or if this is insufficient, the remaining cost must be paid by others than the state. (G) On existing highways, either two-lane or multi-lane where at-grade crossings of persons, animals, vehicles, and machines are required in the normal operation of a farm, ranch, or other rural enterprise as may be necessary to the area economy, the department will evaluate the need and/or the hazards of such crossings by a safety analysis. If the necessity of a pass is determined from the safety analysis,
the department will cooperate with others in determining the type and financial responsibilities associated with same. (2) Farm and ranch-to-market system. On the farm and ranch-to-market system of roads, the following policies shall apply. (A) When the location for an extension of these systems follows closely an existing county maintained road, the department will bear the entire cost of replacing, reconstructing, or extending all existing passes as made necessary by construction proposed by the department. (B) When passes are requested on proposed relocations of the department's maintained system of roads or on extensions thereof not covered by subparagraph (A) of this paragraph, the request will be granted if financing is provided as follows. (i) Drainage structures constructed entirely at department expense may be used as passes when sufficiently large to serve as such without modification.
(ii) Where a drainage structure will need to be enlarged to permit its use as a pass, the entire cost of the enlargement shall be provided by parties other than the department. (iii) Where a drainage structure is not required, the entire cost of a pass shall be provided by parties other than the department. (C) Cost of adjustments. When passes are requested by the county or property owners on present alignment of the department's maintained system of roads, the entire cost of all adjustments made necessary by the pass shall be borne by parties other than the department. (D) The use of a pass across the right-of-way will be by permit or by contractual agreement with the state, or the right for such use may be provided in the right-of-way conveyance to the state, all as may comply with policy and legal requirements. (E) Passes shall not interfere with the proper design, operation, safety, and
appearance of the road. In all cases, engineering judgment will dictate the location, design, and maintenance operation of such facilities. (F) If the department determines by a safety analysis that a pass is required, the department may bear all or a portion of the cost for the installation of such structure based on the merits of each individual case.
Source Note: The provisions of this §21.81 adopted to be effective January 1, 1976.