1. (a) Application of chapter. This chapter prescribes the environmental review and public participation requirements for:

   1. (1) a state transportation project or FHWA transportation project conducted by the department;
   2. (2) a state transportation project or FHWA transportation project of a private or public entity that is funded in whole or in part by the department; or
   3. (3) a state transportation project or FHWA transportation project of a private or public entity that requires commission or department approval.

2. (b) Exceptions.

   1. (1) Notwithstanding subsection (a) of this section, this chapter does not apply to:

      1. (A) a transportation project that is not on the state highway system and that the department funds solely with money held in a project subaccount created under Transportation Code, §228.012;
      2. (B) a transportation project that is developed by a county under Transportation Code, §228.011, or developed by a local toll project entity under Transportation Code, Chapter 373, and that is not on the state highway system and for which the department does not use funds other than funds derived solely from money held in a project subaccount created under Transportation Code, §228.012; or
      3. (C) a state transportation project that is covered by an interagency cooperation contract between the department and the Texas Parks and Wildlife Department for the design, construction, or maintenance of a road or parking area or facility within or adjacent to a facility of the Texas Parks and Wildlife Department, and that is on a park road that is owned and operated by the Texas Parks and Wildlife Department and not on the state highway system.
   2. (2) An agreement entered into by the department for a transportation project excepted under paragraph (1) of this subsection must require that the entity responsible for implementing the project will comply with all environmental review and public participation requirements applicable to that entity under other state and federal law in connection with the project.
   3. (3) Notwithstanding subsection (a) of this section only §2.132 of this chapter (relating to Gulf Intracoastal Waterway Projects) applies to a project concerning the Gulf Intracoastal Waterway.
3. (c) Compliance with rules of federal transportation agency other than FHWA. For transportation projects conducted or supported by a federal transportation agency other than FHWA, and for transportation projects conducted or supported by multiple federal transportation agencies and for which FHWA is not the lead federal agency, the department delegate and project sponsor will comply with the environmental review rules of the lead federal agency, and not the rules in this chapter.

4. (d) Transportation project developed by a local governmental entity or private entity. This chapter does not apply to a transportation project that:

   1. (1) is developed by a local governmental entity or private entity;
   2. (2) is not on the state highway system or on other department-owned property;
   3. (3) is funded with no state or federal funds; and
   4. (4) does not require department approval.

5. (e) Excepted activities. For the purposes of this chapter:

   1. (1) a contractor activity that is not directed or directly controlled by the department and that is in an area outside of the right-of-way, including a staging area, disposal site, equipment storage site, or borrow site selected by a contractor, is not part of a transportation project; and
   2. (2) the relocation of an individual, family, business, farm operation, nonprofit organization, or utility to a location outside of the right-of-way is not part of a transportation project.

Source Note:The provisions of this §2.3 adopted to be effective April 16, 2012, 37 TexReg 1727; amended to be effective July 20, 2016, 41 TexReg 5234.