1. (a) Environmental studies. Except as provided in §2.42 of this subchapter, environmental studies for transportation projects will be accomplished in accordance with applicable state and federal law including the Endangered Species Act, 16 United States Code §§1531 et seq.; the Rivers and Harbors Act, 33 United States Code §§401 et seq.; the Federal Water Pollution Act, 33 United States Code §§1251 et seq. (commonly known as the Clean Water Act); 33 Code of Federal Regulations Parts 114 through 115; the Safe Drinking Water Act per 42 United States Code §§300f et seq.; Section 106 of the National Historic Preservation Act, 36 Code of Federal Regulations Part 800; and this subchapter.

2. (b) Coordination. Coordination with appropriate agencies, local governmental entities, and the public must play a vital role in project planning and development. District offices and the division will be responsible for initiating early coordination and the continuation of coordination with local governmental entities and applicable agencies throughout project planning. Every reasonable effort must be made to resolve interagency disagreements.

   1. (1) Coordination will be achieved in accordance with 1 TAC Chapter 5, Subchapter B, concerning state and local review of federal and state assistance applications, also known as TRACS, which are intended, among other things, to foster intergovernmental cooperation and coordination.
   2. (2) Coordination under TRACS will be initiated with appropriate regional review agencies (RRA).

   3. (3) Types of projects that are exempt from RRA review include those that do not:

      1. (A) require additional right of way;
      2. (B) change the layout or function of connecting roads or streets or of the facility being improved;
      3. (C) adversely affect abutting real property; or
      4. (D) otherwise have a substantial social, economic, or environmental impact.
   4. (4) The TRACS procedures shall supplement the department's traditional policy of direct coordination with other agencies and local governmental entities.

   5. (5) During project coordination, unless otherwise provided in Subchapter B of this chapter (relating to Memorandum of Understanding with Natural Resource Agencies) district offices will be responsible for:

      1. (A) initiating a cooperative development process with local governmental entities in order to assist in the planning of projects; and
      2. (B) maintaining open lines of communication with local or area offices of applicable agencies.

   6. (6) During project coordination the division will be responsible for:

      1. (A) the environmental processing of the project, including interagency contacts, coordination, consultation, and approvals; and
      2. (B) providing project data and analyses to applicable agencies that includes coordination of environmental studies and mitigation proposals with the Texas Commission on Environmental Quality, Texas Historical Commission, and the Texas Parks and Wildlife Department.
   7. (7) Coordination under paragraph (6)(B) of this subsection will be provided to applicable agencies no later than 30 days prior to the date the division approves an environmental document that serves as a written report explaining the department's decision regarding a project, thereby assisting in the determination of project impacts and mitigation plans pursuant to Transportation Code, §201.604, unless this coordination is provided for under MOUs developed under Transportation Code, §201.607, and Subchapter B of this chapter.

   8. (8) As part of the environmental studies, the department will seek to avoid and minimize environmental impacts. If impacts cannot be avoided and efforts to minimize have been exhausted, the department, in consultation with applicable agencies, may propose compensatory mitigation that will be included in the environmental documentation. Compensatory mitigation may include:

      1. (A) payment of a fee to a public agency or private entity in lieu of acquiring or agreeing to manage property for the mitigation of an adverse environmental impact as a result of a highway improvement project under Transportation Code, §201.6061;
      2. (B) participation in a regional habitat conservation plan if the department acquires for a transportation project habitat of one or more species listed as endangered under the Endangered Species Act and the property is within the boundaries of a regional habitat conservation plan under Transportation Code, §201.606;
      3. (C) erection of a sound barrier to reduce noise from a road or highway under Transportation Code, §201.610;
      4. (D) a contractual agreement with any public or private entity for the management of property used for the mitigation of an adverse environmental impact directly resulting from construction or maintenance of a state highway under Transportation Code, §203.004;
      5. (E) an agreement with the Texas Historical Commission under §2.24 of this chapter (relating to Memorandum of Understanding with the Texas Historical Commission) on appropriate mitigation measures for an adverse effect directly resulting from a transportation project; or
      6. (F) mitigation for the Trans-Texas Corridor as provided by Transportation Code, §227.028.

3. (c) Public involvement. Public involvement will be initiated by the appropriate district office and will depend on and be consistent with the type and complexity of each project. Districts will maintain a list of elected public officials, individuals and groups interested in transportation projects, and will provide notification of public meeting and hearing activities to these individuals and groups.

   1. (1) Notifications for public hearings. Notifications for public hearings depend on the type of affected resource. Paragraphs (5) through (9) of this subsection govern public hearing requirements for projects with state or federal funding. If a project requires the taking of public land designated and used as a public park, recreation area, wildlife refuge, historic site, or scientific area, in addition to paragraphs (5) through (9) of this subsection, Parks and Wildlife Code, §§26.001 et seq. and paragraph (5) of this subsection govern public hearing requirements.

   2. (2) Meetings with affected property owners. Meetings with affected property owners (MAPO), as one form of public involvement, will be held with individuals owning property adjacent to the project and with other affected property owners (e.g., a business or governmental entity that may be impacted) when projects require:

      1. (A) detours, a minimal amount of right-of-way acquisition, or temporary construction easements; or
      2. (B) a minor location or design revision after the environmental document has been approved and the public involvement requirements have been completed.

   3. (3) Public meetings. Public meetings, another form of public involvement, may be held with local public officials, interested citizens, the general public, and local, neighborhood, or special interest groups for the purpose of exchanging ideas and collecting input on the need for, and possible alternatives to, a given project. Notice of a public meeting will be appropriate for the anticipated audience to maximize attendance. Following the public meeting, the district will prepare a written summary of the proceedings, including the comments received, and responses to comments, as well as modifications, if any, to the project resulting from comments received. This summary will be forwarded to the division for review. Public meetings will be held:

      1. (A) as early as the department determines feasible to assure public input into project planning;
      2. (B) to provide a free exchange of project views and concerns;
      3. (C) during project planning and development in order to keep the public informed;
      4. (D) during the drafting of the draft environmental impact statement described in subsection (f) of this section; and
      5. (E) at a time and place convenient to the public in the vicinity of the project.

   4. (4) Opportunity for a public hearing. If a public hearing is not required under paragraph (5) of this subsection, the district may afford an opportunity for public hearing as another form of public involvement. Opportunities for a public hearing will be afforded for projects that require the acquisition of significant amounts of right of way, substantially change the layout or function of the connecting roadways or of the facility being improved, add capacity, have a measurable adverse impact on abutting real property, or otherwise cause a substantial social, economic, or environmental effect, or for which the department determines it is in the public interest.

      1. (A) An opportunity for public hearing will also be afforded for projects if the results of the environmental studies support a finding of no significant impact (FONSI), as discussed in subsections (d) and (e) of this section. The opportunity will be afforded after the environmental document is considered technically complete and is approved by the division as a full-disclosure document suitable for public review. However, if deemed appropriate, the district office may decide to hold a public hearing and bypass affording a public hearing opportunity.
      2. (B) Two notices of the opportunity for public hearing will be published in local newspapers having general circulation. The first notice will be published at least 30 days in advance of the deadline date set by the district office for submission of written requests for holding a public hearing, and the second notice will be published no more than 10 nor less than seven days prior to the deadline date.
      3. (C) If the population that will be affected by the project is predominantly non-English speaking, the notices must also be published in the dominant language in accordance with Presidential Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency.
      4. (D) Notices of the opportunity for public hearing will also be mailed to landowners abutting the roadway as identified by tax rolls, and affected local governments and public officials.
      5. (E) No further action will be taken to hold a public hearing if at the end of the time set for affording an opportunity for a public hearing no requests are received or the district has addressed the concerns of the persons requesting the public hearing. The district office will be responsible for submitting a certification of the public involvement process to this effect to the division.

   5. (5) Public hearing. A public hearing, as another form of public involvement, will be held to present project alternatives and to encourage and solicit public comment after location and design studies are developed and the environmental document is considered technically complete and approved by the division as a full disclosure document suitable for public review.

      1. (A) A public hearing will be held:

         1. (i) for projects with substantial public interest or controversy;
         2. (ii) for environmental impact statement (EIS) projects;
         3. (iii) for high-profile projects;
         4. (iv) if a request for hearing is received as discussed in paragraph (4) of this subsection;
         5. (v) if a project requires the taking of public land designated and used as a park, recreation area, wildlife refuge, historic site or scientific area, as covered in the Parks and Wildlife Code, §§26.001 et seq.;
         6. (vi) if a project requires a public hearing under Transportation Code, §203.021; or
         7. (vii) for any aviation project requiring a residential or commercial relocation.

      2. (B) The hearing notice will contain at a minimum the following information:

         1. (i) time, date, and location of the hearing;
         2. (ii) description of the project termini, purpose and need, improvements, and right-of-way needs;
         3. (iii) reference to maps, drawings, environmental studies and documents, and any other information about the project that is available for public inspection at the designated locations;
         4. (iv) reference to the potential for relocation of residences and businesses and the availability of relocation assistance for displacees;
         5. (v) a statement that written comments may be presented for a period of 10 days after the hearing;
         6. (vi) the address where written comments may be submitted;
         7. (vii) whether the project encroaches on a floodplain, wetland, or a sole-source aquifer recharge zone;
         8. (viii) a statement, if applicable, that the project will require the taking of public land designated and used as a park, recreation area, wildlife refuge, historic site, or scientific area; and
         9. (ix) a statement that provision will be made for persons with special communication or physical needs related to the public hearing, if requested.

      3. (C) Publication requirements for the department's public hearings are provided for in clauses (i) through (iv) of this subparagraph.

         1. (i) Except for projects requiring the taking of public land designated and used as a park, recreation area, wildlife refuge, historic site, or scientific area, notice of the public hearing must be published twice in a local newspaper having general circulation, with the first notice published 30 days before the hearing, and the second notice, no more than 10 days nor less than seven days before the hearing.

         2. (ii) For projects requiring the taking of public land designated and used as a park, recreation area, wildlife refuge, historic site, or scientific area pursuant to Parks and Wildlife Code, §26.002, notice of the public hearing must be given by the publication of four notices in local newspapers. The first notice will be published at least 30 days before the hearing, and once a week thereafter for three consecutive weeks. The last date of publication must be no more than 10 days nor less than seven days before the date of the hearing.

            1. (I) The notice must be published in a newspaper of general circulation that is published at least six days a week in the county in which the land to be taken is situated.
            2. (II) If there is no newspaper that qualifies for these requirements, the notices may be published in any county that adjoins the county in which the land is situated.
            3. (III) If there is no qualifying newspaper published in any adjoining county, then the notice must be published in the qualifying newspaper published in the nearest county to the county where the land is situated.
            4. (IV) If there is no qualifying daily newspaper published therein, the notice must be published in a newspaper of general circulation published in the political subdivision affected.
            5. (V) If no newspaper is published in the political subdivision, the notice must be published in a newspaper published in the political subdivision nearest the political subdivision affected.
         3. (iii) Notices of the public hearing will also be mailed to landowners abutting the proposed project as identified by tax rolls, and affected local governments and public officials.
         4. (iv) If the population that will be affected by the project is predominantly non-English speaking, the notices must also be published in the dominant language in accordance with Presidential Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency.
      4. (D) All testimony given at a public hearing will be made a part of the public hearing record.
      5. (E) Written comments regarding a proposed project must be submitted to the district office within 10 days after the close of a public hearing.
      6. (F) For non-EIS projects, the district will publish a notice, in local newspapers having general circulation, of the availability of the summary and analysis, and the comment and response report of the public hearing in order to inform the public of their availability and to advertise where to obtain copies of the summary and analysis and comment and response reports.

      7. (G) For non-EIS projects, the district will submit two copies each of the verbatim transcript, the public hearing summary and analysis, the comment and response report, and the original certification of the public involvement process signed by the district engineer or his or her designee to the division for review and approval. The certification of the public involvement process will contain:

         1. (i) general information on the public hearing;
         2. (ii) a statement regarding consideration of the economic, social and environmental impacts of the project;
         3. (iii) a statement regarding consideration of the statutory provisions of the Civil Rights act of 1964 and the Civil Rights Restoration Act of 1987; and
         4. (iv) a statement regarding the project's consistency with planning goals and objectives.
   6. (6) Media releases. Following completion of the public involvement process, project specific planning and development decisions will be publicized through press releases in order to keep the public informed of any new or continuing issues. Any changes to the project may require additional public involvement.
   7. (7) Public involvement on projects for which a public hearing is not required. In accordance with Transportation Code, §201.604, for projects for which a public hearing is not required by law, the district will hold a public hearing in accordance with paragraph (5) of this subsection if at least 10 individuals submit written requests for a hearing and the district is unable to address the concerns of the persons requesting the public hearing.

   8. (8) Notice of intent. A notice of intent (NOI), as a required form of public involvement, will be published prior to the preparation of an environmental impact statement (EIS) and when a decision is made to supplement a final EIS.

      1. (A) The NOI will:

         1. (i) briefly detail the project;
         2. (ii) identify known and potential significant impacts on the human environment to the extent possible at this state of project planning;
         3. (iii) identify any preliminary alternatives under consideration by the department;
         4. (iv) identify whether when, and where any scoping meetings will be held; and
         5. (v) state the name and address of the person in the department that can answer questions about the proposed project and the environmental impact statement.
      2. (B) After review and approval of the NOI by the division, the division will publish it in the Texas Register.
      3. (C) The district will publish a summary or a copy of the NOI in local newspapers.
      4. (D) Following publication of the NOI, the department will begin a scoping process for the EIS project. The scoping process is not required if a decision is made to supplement an EIS. The scoping process identified the range of alternatives and the known or potential significant impacts to be addressed in the EIS and is normally achieved through public and interagency coordination and involvement.

   9. (9) Notice of availability for EIS projects. Notices of availability for EIS projects will be made in the following manner:

      1. (A) After the division approves the draft environmental impact statement (DEIS), the division will:

         1. (i) publish a notice of availability in the Texas Register describing a circulation and comment period of no less than 45 days and identifying where comments are to be sent;
         2. (ii) transmit the DEIS at no charge to state agencies through the TRACS system, and directly to applicable federal agencies; and
         3. (iii) coordinate directly with other governmental entities in accordance with memoranda of understanding under Subchapter B of this chapter, memoranda of agreement, or other formal and informal agreements with those entities.

      2. (B) After the division approves the DEIS, the district will:

         1. (i) publish a notice of availability in local newspapers describing a circulation and comment period of no less than 45 days and identifying where comments are to be sent; and
         2. (ii) coordinate directly with local agencies, including the appropriate metropolitan planning organization.

      3. (C) After the division approves the FEIS, the division will publish a notice detailing the availability of the FEIS in the Texas Register. The district will publish a duplicate notice in local newspapers. The notices will:

         1. (i) include information on obtaining copies; and
         2. (ii) state that the public will have 30 days following publication of the notice in the Texas Register to submit comments.
   10. (10) Additional public involvement following project approval. As provided by Transportation Code, §203.022, the district will offer an additional opportunity for public hearing for certain projects that have received project approval. Project approval for the purposes of this subsection is defined as having received approval from the division of the CE or through the issuance of a FONSI or ROD. This provision applies to those projects in which the approval involved either the addition of one or more vehicular lanes or construction on a new location, and in which conditions relating to land use, traffic volumes, and traffic patterns have changed significantly from the time the project originally underwent public review and comment. The opportunity for public hearing will be afforded in accordance with paragraph (4)(A) of this subsection if the project will use federal or state funds, or a public hearing will be held in accordance with paragraph (5) of this subsection if the project requires the taking of public land designated and used as a park, recreation area, wildlife refuge, historic site or scientific area, regardless of funding.
   11. (11) Notice of construction. Pursuant to Transportation Code, §203.022, the district will send notice of impending construction of a project that involves either the addition of at least one travel lane or construction of a project on new location to landowners abutting the roadway as identified by tax rolls, and affected local governments and public officials.
   12. (12) Public transportation. The provisions of paragraph (10) of this subsection do not apply to public transportation projects.

4. (d) Environmental documentation - categorical exclusion (CE).

   1. (1) CEs are transportation projects or associated facilities that do not individually or cumulatively have a significant environmental impact. All CE actions will be consistent with, and comply with, all applicable federal and state laws. The CE action directly, indirectly, or cumulatively, will not:

      1. (A) induce significant impacts to planned growth or land use for the area;
      2. (B) cause any significant environmental impacts to any natural, cultural, recreational, historic or other resource;
      3. (C) cause any significant impacts to air, noise, or water quality;
      4. (D) relocate significant numbers of people; or
      5. (E) cause significant impacts on travel patterns.

   2. (2) The CE action will not involve unusual circumstances or lead to:

      1. (A) significant environmental impacts;
      2. (B) substantial controversy on environmental grounds;
      3. (C) significant impact on properties protected under §4(f) of the Department of Transportation Act, (49 United States Code §303) or §106 of the National Historic Preservation Act, (16 United States Code §470f); or
      4. (D) inconsistencies with any appropriate federal or state laws, requirement or administrative determination relating to the environmental aspects of the action.

   3. (3) Projects that, based on past departmental experience with similar actions, do not involve significant environmental impacts have been determined by the department to be blanket CEs. Blanket CEs will not, in most cases, require review or approval by the division. Blanket CEs will require environmental review by the district to determine if coordination is required under other state or federal laws and regulations, including the Endangered Species Act, National Historic Preservation Act, Antiquities Code of Texas, Clean Water Act, Rivers and Harbors Act, or others. For these blanket CEs, the district or the department's Aviation Division will visit the project area and confirm that there are no environmental issues, will identify issues if present, and will obtain any required permits and approvals. Examples of Blanket CEs include:

      1. (A) actions that do not involve or lead directly to construction, such as planning and technical studies, grants or training and research programs, engineering feasibility studies that either define the elements of a proposed highway improvement project or identify alternatives, so that social, economic, and environmental effects can be assessed for potential impact;
      2. (B) construction of bicycle and pedestrian lanes, paths, and facilities consisting of work on an existing road, path or lane and completely within the footprint of the existing sub-grade course; and
      3. (C) activities included in the State's "highway safety plan" under 23 United States Code §402.
      4. (D) landscaping;
      5. (E) installation of fencing, signs, pavement markings, small passenger shelters, traffic signals, and railroad warning devices if no substantial land acquisition or traffic disruption will occur;
      6. (F) emergency repairs as defined in 23 United States Code §125;
      7. (G) acquisition of scenic easements;
      8. (H) minor improvements to existing rest areas and truck weigh stations;
      9. (I) ridesharing activities;
      10. (J) alterations to facilities or vehicles in order to make them accessible for elderly and disabled persons;
      11. (K) improvements, regular maintenance and emergency repairs to existing mechanical, electromechanical, hydraulic, electronic and manned toll collection facilities;
      12. (L) minor expansion of toll plazas and approach aprons;
      13. (M) renovation or rehabilitation of airport runways where no additional right of way is required, and where existing rights of way have been previously disturbed;
      14. (N) renovation or rehabilitation of airport facilities where no additional right of way is required, and where existing rights of way have been previously disturbed;
      15. (O) installation or upgrading of airfield lighting systems, including runway end identification lights, visual approach aids, beacons and electrical distribution systems;
      16. (P) installation of miscellaneous items at airports, including segmented circles, wind or landing direction indicators or measuring devices, or fencing;
      17. (Q) grading or removal of obstructions on airport property and erosion control actions with no off-airport impacts;
      18. (R) noise compatibility programs for airports;
      19. (S) track and railbed maintenance improvements carried out within existing right of way;
      20. (T) projects consisting of work classified as a seal coat, overlay, resurfacing, rehabilitation or restoration done within existing right of way on an existing road completely within the footprint of existing base course;
      21. (U) highway traffic operation improvements including the installation of ramp metering control devices and lighting;
      22. (V) approval for disposal of excess right of way or for joint or limited use of right of way, if the proposed use does not have significant adverse impacts; and
      23. (W) installation of noise barriers or alterations to existing publicly owned buildings to provide for noise reduction.
   4. (4) Additional projects will also qualify as CEs if environmental studies demonstrate that the environmental issues described under paragraphs (1) and (2) of this subsection have been met.

   5. (5) Actions meeting the criteria for a CE as found in paragraph (4) of this subsection will require division review and approval.

      1. (A) Division approval will be based on the appropriate office providing documentation in the form of a descriptive letter, environmental issues check list, or brief environmental evaluation that demonstrates that the specific conditions or criteria for classification of a CE as found in paragraphs (1) and (2) of this subsection have been met. Documentation must demonstrate that significant environmental impacts will not result, based on the results of an evaluation of the specific project and any coordination with resource agencies. All EPIC will be summarized in the documentation and, as appropriate, will be included in the plans, specifications, and estimates.

      2. (B) Examples of CEs for transportation projects include:

         1. (i) modernization of a highway outside of the existing sub-grade by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes such as parking, weaving, turning, or climbing and passing, and correction of substandard curves and intersections;
         2. (ii) highway safety or traffic operation improvement projects including the installation of ramp metering control devices and lighting;
         3. (iii) bridge rehabilitation, reconstruction, or replacement, or the construction of grade separation to replace existing at-grade railroad crossings;
         4. (iv) addition of travel lanes to existing rural roadways using only existing right of way, or any added capacity on an existing highway, after public involvement, provided the project is in an attainment area for air quality or outside the non-attainment boundaries for those metropolitan planning organizations that do not meet air quality standards;
         5. (v) transportation corridor fringe parking facilities;
         6. (vi) construction of new truck weigh stations or rest areas;
         7. (vii) approvals for changes in access control, with appropriate public involvement;
         8. (viii) early and advance acquisition of land through donation or early acquisition of land for hardship acquisition or protective purposes pursuant to 23 Code of Federal Regulations §§710.501-710.503;
         9. (ix) rehabilitation or reconstruction of existing rail and bus buildings and ancillary facilities if only minor amounts of additional land are required and there is not a substantial increase in the number of users;
         10. (x) construction of bus transfer facilities (an open area consisting of passenger shelters, boarding areas, kiosks and related street improvements) located in a commercial area or other high activity center in which there is adequate street capacity for projected bus traffic;
         11. (xi) construction of rail storage, maintenance, or inspection facilities in areas used predominantly for industrial or transportation purposes if the construction is not inconsistent with existing zoning and if there is no significant noise impact on the surrounding community; and
         12. (xii) construction of new or expanded bicycle and pedestrian lanes, paths, and facilities except as provided for in paragraph (3)(B) of this subsection.
   6. (6) The department may classify other projects as CEs if, from the documentation required to be submitted, a determination is made that the project meets the CE classification. These projects include runway extensions requiring minor amounts of additional rights of way, and expansion of airport facilities requiring minor amounts of additional rights of way.
   7. (7) Sufficient information should be retained in the district and division CE project files to document that the project meets the CE criteria.

5. (e) Environmental documentation - environmental assessment (EA).

   1. (1) EA. For projects where the extent of impacts is not readily discerned, or for aviation projects involving any residential or commercial relocations, environmental studies will be conducted and an EA will be prepared to determine the nature and extent of environmental impacts. For aviation projects that require an EA, the department will utilize the format and content requirements of Federal Aviation Administration (FAA) procedures established to comply with 42 United States Code §§4321 et seq. The EA will be prepared as a decision-making document and to provide full disclosure of project impacts to the public. If the studies reveal that the impacts are not significant, then the EA will conclude with a finding of no significant impact (FONSI). If the studies reveal that the impacts are significant, then the EA will conclude that an environmental impact statement is required.

   2. (2) Coordination and consultation. For projects that require an EA, the department will, at the earliest appropriate time, begin coordination and consultation with state and federal resource agencies, local political subdivisions, and the public to achieve the following objectives:

      1. (A) definition of the scope of the project;
      2. (B) identification and evaluation of any alternatives meeting the action's established purpose and need, including evaluation of the no-build alternative;
      3. (C) determination of potential social, economic, and environmental impact;
      4. (D) identification of mitigation measures and alternatives that might avoid, minimize, or compensate for adverse environmental impacts; and
      5. (E) identification of other environmental reviews, permits, and other approvals, as well as consultation requirements that should be done as part of the decision-making studies.
   3. (3) Review and consultation. Results of review and consultation with regulatory agencies and a summary of the contacts and comments received will be included in the EA.
   4. (4) Notice. As required in subsection (c)(5) of this section, the notice of the public hearing will announce the availability of the EA and where it may be obtained or reviewed.
   5. (5) Division determination. If, at any point during the environmental studies, the division determines that the project may have a significant impact on the environment, the preparation of an environmental impact statement (EIS) as discussed in subsection (f) of this section will be required.
   6. (6) Finding of no significant impact. The division will review the EA, any proposed mitigation measures, and the summary and analysis and comment and response reports of the public hearing. The division will make a separate written finding of no significant impact (FONSI), based on the EA and any other appropriate environmental documents and agency consultation and coordination.
   7. (7) Notification of FONSI. After issuance of the FONSI, a notice of the availability of the FONSI will be furnished by the division to TRACS. The district will furnish the notice of the availability to the metropolitan planning organization and provide the notice to the local media through a press release.
   8. (8) Additional permits or approvals. In addition to a determination of no significant impact, additional permits or approvals may be required before the project can be approved for construction letting.

6. (f) Environmental documentation - environmental impact statement (EIS).

   1. (1) An EIS will be required for projects in which there are likely to be significant environmental impacts. For aviation projects, the department will utilize the format and content requirements of FAA procedures established to comply with 42 United States Code §§4321 et seq. The preparation of the EIS will occur in two stages:

      1. (A) the draft EIS or DEIS (a supplemental DEIS may be required in some cases); and
      2. (B) the final EIS or FEIS (a supplemental FEIS may be required in some cases).
   2. (2) If the analyses or agency review comments indicate that significant impacts to the human and natural environment will not occur, an EIS should not be prepared.
   3. (3) Publication of a notice of intent (NOI) and scoping meetings will be accomplished in accordance with subsection (c) of this section.

   4. (4) Following a notice of intent and scoping, a draft environmental impact statement will be prepared.

      1. (A) The draft environmental impact statement (DEIS) will:

         1. (i) identify all reasonable alternatives satisfying the purpose and need of the project and evaluate them for their associated social, economic, and environmental impacts;
         2. (ii) discuss the elimination of alternatives that do not meet the purpose and need of the project, if applicable;
         3. (iii) summarize the studies, reviews, consultations, and coordination required by law to the extent appropriate; and
         4. (iv) designate a preferred alternative, if appropriate.
      2. (B) If the division determines that the DEIS complies with the provisions of subparagraph (A) of this paragraph and other requirements, the DEIS will be approved for circulation by signing and dating the cover sheet, and will be printed in sufficient number to provide review copies.
      3. (C) The DEIS will be circulated in accordance with subsection (c)(9) of this section.
      4. (D) Copies of the DEIS will be provided upon request. The department may charge a fee not to exceed the actual cost of reproduction.
      5. (E) The DEIS may also be reviewed at designated public locations.
      6. (F) A public hearing will be held for a DEIS highway improvement project. Notice of the public hearing will be given in accordance with subsection (c)(1) of this section.
      7. (G) The DEIS will be made available at the district for the general public 45 days in advance of the public hearing.

   5. (5) After the DEIS is circulated and comments reviewed, a final environmental impact statement (FEIS) will be prepared by the department.

      1. (A) The FEIS will:

         1. (i) identify the preferred alternative and evaluate all reasonable alternatives considered that satisfy the purpose and need of the project;
         2. (ii) discuss substantive comments received on the DEIS and responses to those comments;
         3. (iii) summarize public involvement and describe the mitigation measures that are to be incorporated as EPIC into the state project;
         4. (iv) document compliance, to the extent possible, with all applicable environmental laws, or provide reasonable assurance that requirements can be met; and
         5. (v) identify environmental issues and the consultations and other efforts made to resolve interagency disagreements.
      2. (B) If the division determines that the FEIS complies with these and other requirements, the division will indicate approval of the FEIS by signing and dating the cover page.
      3. (C) The initial printing of the FEIS will be in sufficient quantities to meet the requests for copies that can be reasonably expected from agencies, organizations, and individuals.
      4. (D) A fee that is not more than the actual cost of reproduction of the FEIS may be charged for purchase of the document.
      5. (E) Copies of the FEIS may also be placed in appropriate designated public locations, such as local governmental offices, libraries, or other public institutions.
      6. (F) Notice detailing the availability of the FEIS will be published in accordance with subsection (c)(9) of this section.
      7. (G) Following the approval of the FEIS, it will be made available to agencies that made substantive comments on the DEIS; however, in the event the FEIS is voluminous, the department may provide for alternative circulation such as notifying agencies of the availability of the FEIS, and by providing a method for these agencies to request a copy.
      8. (H) The division will complete and sign a record of decision (ROD) no sooner than 30 days after publication of the availability of the FEIS notice in the Texas Register. Until any required ROD has been signed, no further approvals may be taken except for administrative activities taken to secure further project funding. The ROD will present the basis for the decision, summarize the department's responses to comments received, summarize any mitigation measures and commitments, and be published in the Texas Register. A notice of availability of the ROD will be published in local newspapers.

7. (g) Environmental documentation - reevaluation.

   1. (1) The department will prepare a reevaluation for projects with an approved CE, FONSI, or FEIS if:

      1. (A) a period of three years has passed without major steps to advance the action, such as authority to undertake final design or acquire significant portions of right of way or approval of the plans, specifications, and estimates (PS&E) on the project from the date of the issuance of a FONSI or ROD or last major departmental approval;
      2. (B) there are changes in a project (e.g., right-of-way requirements, design changes, etc.) since environmental approval; or
      3. (C) there have been regulatory changes (e.g., new threatened or endangered species listed, new executive orders issued, etc.) or changes in the surrounding land use or environment after environmental approval.
   2. (2) The department will prepare a reevaluation that determines whether a supplement to the DEIS is required if an acceptable FEIS is not submitted within three years from the date of circulation of the DEIS.
   3. (3) The reevaluation will not necessarily be circulated for agency review, although resource agency coordination may be required.
   4. (4) For projects for which a ROD was issued, the reevaluation will confirm the findings in the ROD or determine that a supplemental EIS will be required.
   5. (5) For projects determined to be CEs or for which a FONSI was issued, the reevaluation will either confirm the CE designation, confirm the finding of no significant impacts, or identify significant impacts that will require the department to conduct additional environmental studies and prepare an environmental impact statement.

8. (h) Environmental documentation - supplemental environmental impact statement.

   1. (1) A DEIS or FEIS may be supplemented at any time.

   2. (2) An EIS will be supplemented whenever the department determines that:

      1. (A) changes to the project would result in significant environmental impacts that were not evaluated in the EIS; or
      2. (B) new information or circumstances relevant to environmental concerns bearing on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS.

   3. (3) A supplemental EIS will not be necessary when:

      1. (A) changes to the project, new information, or new circumstances result in a lessening of adverse impacts evaluated in the EIS without causing other environmental impacts that are significant and were not evaluated in the EIS; or
      2. (B) the department decides to approve an alternative fully evaluated in the approved FEIS, but not identified as the preferred alternative (in such cases, a revised ROD will be prepared and published in the Texas Register).
   4. (4) If there is an uncertainty of the significance of new impacts, the department will develop appropriate environmental studies or, if deemed appropriate, a reevaluation or an EA to assess the impacts of the changes, new information, or new circumstances.
   5. (5) If the department determines, based on studies that a supplemental EIS is not necessary, it will indicate that determination in the project record.
   6. (6) A supplemental EIS will be developed using the same process and format as an original EIS including publication of an NOI, except that scoping and early coordination will not be required. No NOI is required for a supplemental DEIS.

   7. (7) A supplemental EIS may be required to address issues of limited scope, such as the extent of proposed mitigation, or the evaluation of location or design variations for a limited portion of an overall project. In this situation the preparation of the supplemental EIS will not necessarily:

      1. (A) prevent the granting of new approvals;
      2. (B) require the withdrawal of previous approvals; or
      3. (C) require the suspension of project activities for any activity not directly affected by the supplement. (If changes at issue are of such magnitude as to require a reassessment of the entire action, or more than a limited portion of the overall action, the department will suspend any activities that would have an adverse environmental impact or limit the choice of reasonable alternatives, until the supplemental EIS is completed).

Source Note:The provisions of this §2.43 adopted to be effective December 9, 2004, 29 TexReg 11371.