1. (a) Projects eligible for categorical exclusions. Categorical Exclusions are generally available for projects that will not result in significant impacts on the quality of the human environment and that do not involve extraordinary circumstances. Projects that may be eligible for a categorical exclusion (CE) include the following:

   1. (1) those that include only minor upgrading or minor expansion of system capacity;
   2. (2) the rehabilitation or functional replacement of existing system and system components such as collection, interceptor, or pressure lines located within existing right-of-ways and easements;
   3. (3) the construction of new minor ancillary facilities located on the same property as existing facilities that do not affect the degree of treatment or the capacity of the works; and
   4. (4) the construction of facilities that will provide a capacity increase to serve a population of no greater than 30% the size of the existing population.

2. (b) Projects not eligible for CE are:

   1. (1) Projects that would otherwise be eligible for a CE but due to extraordinary circumstances are not eligible for a CE;
   2. (2) the construction of new collection, interceptor, or pressure lines;
   3. (3) actions not supported by the State or Regional Water Plan; and
   4. (4) projects needed primarily to serve future growth.

3. (c) Extraordinary circumstances. Extraordinary circumstances become known at any time during the planning, design or construction of a project and may cause the project to be ineligible for a CE. Extraordinary circumstances include, but are not limited to, the following known or expected impacts:

   1. (1) potentially significant environmental impacts on the quality of the human environment either individually or cumulatively over time;
   2. (2) disproportionally high and adverse human health or environmental effects on any community, including minority, low-income or Indian tribes;
   3. (3) a significant effect on federal or state-listed threatened or endangered species or their critical habitat;
   4. (4) a significant effect on national or state natural landmarks or property with national or state historic, architectural, prehistoric, archeological or cultural value;
   5. (5) a significant effect on environmentally important natural resource areas such as wetland, floodplains, significant agricultural lands, aquifer recharge zones, coastal zones, barrier islands, wild and scenic rivers and significant fish or wildlife habitat;
   6. (6) significant adverse air quality effects;
   7. (7) significant effect on the pattern and type of land use or growth and distribution of population including altering the character of existing residential areas;
   8. (8) significant public controversy about a potential environmental impact;
   9. (9) the cost-effectiveness of the project; and
   10. (10) any conflict with existing federal, state, local, or Indian tribe environmental resources protection or land-use laws and regulations.
4. (d) Upon the discovery of extraordinary circumstances, the executive administrator may deny a CE or rescind an existing CE.

5. (e) Applicant requirements. An Applicant shall submit sufficient information to clearly describe why the project is eligible for a CE including, but not necessarily limited to the following documentation:

   1. (1) a brief but complete description of the project;
   2. (2) an alternatives analysis demonstrating the cost-effectiveness of the project;
   3. (3) plan maps or maps of the project depicting the location of all construction areas, the planning area boundaries, and any known environmentally important natural areas;
   4. (4) the names of widely-circulated, local newspapers serving the community affected by the project;
   5. (5) a discussion of the project's eligibility for a CE under the criteria listed in subsection (a) of this section; and
   6. (6) a statement explaining why no extraordinary circumstances, as listed in subsection (c) of this section, apply to the proposed action.
6. (f) Review of proposed project eligibility for CE. The executive administrator shall review the information submitted and may request additional information as needed to complete the determination regarding the eligibility of a proposed project.
7. (g) Public notice. The executive administrator's determination relating to a CE shall be subject to public notice which shall be published either in a newspaper of general circulation in the county or counties of the affected community or on the agency's website and referenced in a public notice in a newspaper of general circulation in the county or counties of the affected community.

Source Note:The provisions of this §375.62 adopted to be effective September 8, 2010, 35 TexReg 8126; amended to be effective January 9, 2012, 36 TexReg 9337.