1. (a) Federal-aid transportation project. A federal-aid transportation project is a project that uses federal highway or transit funding, or requires approval by a federal agency, for example, for access to the interstate highway system.

2. (b) Applicable requirements.

   1. (1) For a federal-aid transportation project the department shall comply with:

      1. (A) this section;
      2. (B) this subchapter and Subchapters B and C of this chapter; and
      3. (C) the rules of the federal agency from which the department seeks approval of the project that implements the National Environmental Policy Act (For highway projects, the department shall comply with the rules of FHWA located at 23 Code of Federal Regulations Part 771.).
   2. (2) Aviation projects that utilize federal aviation funds shall comply with Federal Aviation Administration (FAA) procedures established to comply with 42 United States Code §§4321 et seq.
   3. (3) Public transportation projects that utilize federal transit or federal highway funds shall comply with paragraph (1) of this subsection.

3. (c) Issuance of approval; delegation of authority.

   1. (1) When an approval is required under this section for a highway project the FHWA will issue the approval. However, FHWA and the department have entered into a programmatic agreement that designates certain projects as a CE; if a project is considered a CE under the programmatic agreement then the project is deemed approved by FHWA.
   2. (2) If FHWA delegates appropriate authority to the department to issue approval of an environmental document, or the authority to take any other action described in this subchapter and Subchapters B or C of this chapter, then wherever it specifies that FHWA may issue the approval or take the action, the environmental division may issue the approval or take the action.
   3. (3) When an approval is required under this section for an aviation project the FAA will issue the approval. When an approval is required under this section for a public transportation project the Federal Transit Administration will issue the approval. When an approval is required under this section for a railroad project that requires the approval of the Surface Transportation Board, the approval will be issued by that board.

4. (d) Projects by other entities.

   1. (1) This subsection applies to a transportation project planned and developed by other governmental entities or by private entities that may utilize federal funds or other federal assistance.
   2. (2) A developing entity shall submit to the environmental division a written proposal concerning the respective roles and responsibilities of the entity and the department under this section. In response, the environmental division shall issue written instructions on respective roles and responsibilities.

   3. (3) The governmental or private entity must obtain the approval of the environmental division of the matters described in this paragraph. If FHWA rules specify a matter requires FHWA approval also, the environmental division shall seek the approval of the FHWA. The environmental division may issue an approval on behalf of FHWA if there is a delegation of authority as described in subsection (c) of this section. Unless the environmental division determines that project specific considerations warrant changes to the roles and responsibilities, the entity shall complete the following activities:

      1. (A) prepare environmental reports and studies;
      2. (B) submit appropriate environmental documentation;
      3. (C) prepare any revision to environmental documentation;
      4. (D) prepare legal and public notice required in this subchapter;
      5. (E) conduct public involvement required by this subchapter, including obtaining court reporters for public hearings, and providing accommodations for persons with special communication or physical needs if requested;
      6. (F) prepare materials to be used at a public meeting or public hearing;
      7. (G) prepare responses to comments;
      8. (H) prepare a summary and analysis, and comment and response report, for a public meeting or public hearing held (If a hearing was held, prepare a certification that it was held in accordance with §2.9 of this subchapter (relating to Public Involvement-Public Hearing), and the Civil Rights Act of 1964 and the Civil Rights Restoration Act of 1987);
      9. (I) prepare a verbatim transcript of any public hearing and the original certification of the public involvement process as described in this subchapter; and
      10. (J) submit documentation showing that all EPIC is complete or will be completed including copies of permits or other approvals required prior to construction.
   4. (4) When a governmental or private entity submits for approval to the department an environmental study or related documentation the entity shall provide a number of copies that is sufficient for distribution. The environmental division shall specify the number of copies required.
5. (e) The FHWA may submit for publication in the Federal Register a notice that a permit, license, or approval is final, and notice of limitation of claims for judicial review under 23 United States Code §139(l). If FHWA delegates additional authority to the department, the environmental division may submit the notices for publication.

Source Note:The provisions of this §2.3 adopted to be effective January 4, 2007, 31 TexReg 10817.