1. (a) Environmental studies. Environmental studies for highway improvement projects which utilize state highway funds will be accomplished in accordance with applicable state and federal law including, but not limited to, the Endangered Species Act of 1973 as amended, 16 United States Code §§1531 et seq., the Rivers and Harbors Act of 1899 as amended, 42 United States Code §§401 et seq., the Federal Water Pollution Act as amended, 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 as amended, 42 United States Code §§300f et seq., and the provisions under this subchapter.

2. (b) Early coordination and public involvement.

   1. (1) Early coordination. Early coordination with appropriate agencies, local governmental entities, and the public shall play a vital role in project planning and environmental development of state projects. District offices and the division shall be responsible for initiating early coordination, and the continuation of coordination with local governmental entities and applicable agencies throughout project planning.

      1. (A) Early coordination shall be achieved through rules codified at 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. (B) Coordination under TRACS shall be initiated with appropriate regional review agencies (RRA).

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

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

      5. (E) During early coordination, district offices will be responsible for:

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

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

         1. (i) the environmental processing of the state project, including interagency contacts, coordination, consultation, and approvals; and
         2. (ii) providing state project data and analyses to applicable agencies, which shall include coordination of environmental reviews and mitigation proposals with the Texas Natural Resources Conservation Commission and the Texas Parks and Wildlife Department, prior to the written report explaining the department's decision regarding a project, thereby assisting in the determination of state project impacts and mitigation plans.

   2. (2) Public involvement. Public involvement shall be encouraged as an important element of project planning. It shall be initiated by the pertinent district office and will depend on and be consistent with the type and complexity of each state project. Districts shall also maintain a list of individuals and groups interested in state project development, and shall provide notification of public hearing activities to these individuals and groups.

      1. (A) Meetings, as one form of public involvement, with affected property owners and residents will be held when state projects require:

         1. (i) detours and/or a minimal amount of right-of-way acquisition, or temporary construction easements; and
         2. (ii) a minor location or design revision after the environmental document has been approved and the public involvement requirements have been completed (if revisions are determined to be significant, the environmental document will be revised and an opportunity for public hearing shall be afforded to the public to address these revisions).

      2. (B) Public meetings, as another form of public involvement, will be held:

         1. (i) at any time during project planning and development in order to keep the public informed;
         2. (ii) during the drafting of the draft environmental impact statement, as discussed in subsection (e) of this section;
         3. (iii) to provide a free exchange of state project views and concerns;
         4. (iv) as early as the department determines feasible to assure public input into project planning; and
         5. (v) at a time and place convenient to the public in the vicinity of the state project.

      3. (C) An opportunity for public hearing, as another form of public involvement, shall be afforded for state projects in order to determine local interest for holding a public hearing, when required under Texas Civil Statutes, Article 6674w-1, or when the state project requires the acquisition of significant amounts of right-of-way; there is a substantial change in the layout or function of the connecting roadways or of the facility being improved; there is measurable adverse impact on abutting real property; or there is otherwise a substantial social, economic or environmental effect.

         1. (i) An opportunity for public hearing will also be afforded for finding of no significant impact (FONSI) type state projects, as discussed in subsection (d) of this section, after the environmental assessment is considered technically complete and initially approved, by the division, to proceed with public involvement. (However, if deemed appropriate, the district office may decide to hold a public hearing and bypass affording a public hearing opportunity.)
         2. (ii) Two notices of the opportunity for public hearing shall be published in local newspapers having general circulation. The first notice shall be published approximately 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 shall be published approximately ten days prior to the deadline date. (Where the population in the immediate vicinity of the state project is predominantly Spanish speaking, the notices must also be published in Spanish.)
         3. (iii) Notices of the opportunity for public hearing shall also be mailed to landowners abutting the roadway as identified by tax rolls, and affected local governments and public officials.
         4. (iv) 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. (However, the district office will be responsible for submitting a certified statement to this effect to the division.)

      4. (D) A public hearing, as another form of public involvement, will be held: to present project alternatives; to encourage and solicit public comment; after location and design studies are developed, to the extent that the public can be given a feasible proposal with appropriate environmental studies; after the environmental document is considered technically complete; for projects with substantial public interest such as environmental impact statement (EIS) state projects or high-profile FONSI state projects, or when a request for hearing is received as discussed in subparagraph (C) of this paragraph; or when a state project requires the taking of public land designated as a park, recreation area, wildlife refuge, historic site or scientific area, as covered in the Parks and Wildlife Code, §§26.001 et seq. The hearing notice should contain at a minimum the following information:

         1. (i) time, date, and location of the hearing;
         2. (ii) description of the project termini, improvements, and right-of-way needs;
         3. (iii) reference to maps, drawings, and environmental studies and/or documents, and any other information available about the state project that are available for public inspection at the designated departmental or other location;
         4. (iv) reference to the potential for relocation or residences and businesses and the availability of relocation assistance for displacees;
         5. (v) a statement that verbal and written comments may be presented for a period of ten days after the hearing;
         6. (vi) the address where written comments may be submitted; and
         7. (vii) the existence of any floodplain, wetland encroachment, or encroachment on a sole-source aquifer recharge zone by a state project.
      5. (E) Except for state projects requiring the taking of public land designated as a park, recreation area, wildlife refuge, historic site, or scientific area, notice of the public hearing must be given by the publication of two notices in local newspapers having general circulation, with the first notice published approximately 30 days before the hearing, and the second notice, approximately ten days before the hearing. (Where the population in the immediate vicinity of the state project is predominantly Spanish speaking, the notices must also be published in Spanish.)

      6. (F) Notices of the public hearing shall also be mailed to landowners abutting the roadway as identified by tax rolls, and affected local governments and public officials.

         1. (i) For state projects requiring the taking of public land designated as a park, recreation area, wildlife refuge, historic site, or scientific area, notice of the public hearing shall be given in accordance with the Texas Parks and Wildlife Code, §26.002.
         2. (ii) The hearing notices must also be published in Spanish, for state projects requiring the taking of public land designated as a park, recreation area, wildlife refuge, historic site, or scientific area, where the population in the immediate vicinity of the state project is predominantly Spanish speaking.
      7. (G) The public shall have ten days after the close of a public hearing to submit written comments to the district office regarding a proposed state project.
      8. (H) Public hearings shall be considered complete on the submission by the district office of a verbatim transcript and its certification to the division for review and approval.
      9. (I) As another method of public involvement, there shall be published in local newspapers a notice of the availability of the environmental assessment in order to inform the public of its availability and advising where to obtain information concerning the state project, and that any written comments should be furnished within a 30 day period. (This notice shall be published only after the approval of the environmental assessment and only under very limited circumstances to take the place of affording an opportunity for a public hearing, and only with prior concurrence from the division.)
   3. (3) Media releases. Following completion of the public involvement process, project specific planning and development decisions shall be publicized through press releases in order to keep the public informed of any new or public continuing issues. (Any changes to the state project may require additional public involvement.)
   4. (4) Public involvement on projects where a public hearing is not required by law. For projects for which a public hearing is not required by law, the department will hold a public hearing in accordance with paragraph (2) of this subsection if at least ten individuals request a hearing.
   5. (5) Public involvement following project approval. The department shall offer an additional opportunity for public hearing for projects which have already undergone public review and comment, and which involve either the addition of at least one travel lane or construction of a project on 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 (2) of this subsection.
   6. (6) Notice of construction. The department will send notice of impending construction of a project which 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.

3. (c) Categorical exclusions (CE).

   1. (1) A state project will be classified as a categorical exclusion (CE) if it does not:

      1. (A) involve significant environmental impacts;
      2. (B) induce significant impacts to planned growth or land use of the state project area;
      3. (C) require the relocation of significant numbers of people;
      4. (D) have a significant impact on any natural, cultural, recreational, historic, or other resource;
      5. (E) involve significant air, noise, or water quality impacts;
      6. (F) significantly impact travel patterns; or
      7. (G) either individually or cumulatively, have any significant environmental impacts.

   2. (2) If a state project involves any of the following, the department will conduct appropriate environmental studies to determine if the CE classification is proper:

      1. (A) substantial environmental impacts; and/or
      2. (B) substantial controversy on environmental grounds.

   3. (3) The following actions are examples of state projects which meet the criteria of a CE as found in paragraph (1) of this subsection and will not in most cases require review or approval by the division:

      1. (A) 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 state project or identify alternatives so that social, economic, and environmental effects can be assessed for potential impact;
      2. (B) approval of utility installations along or across a transportation facility;
      3. (C) construction of bicycle and pedestrian lanes, paths, and facilities;
      4. (D) landscaping;
      5. (E) installation of fencing, signs, pavement markings, small passenger shelters, traffic signals, and railroad warning devices when 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 easement;
      8. (H) improvements to existing rest areas and truck weigh stations;
      9. (I) ridesharing activities; and
      10. (J) alterations to facilities or vehicles in order to make them accessible for elderly and handicapped persons.

   4. (4) Any other actions meeting the criteria for a CE as found in paragraph (1) of this subsection will require division review and approval.

      1. (A) Departmental approval will be based on the appropriate office submitting documentation in the form of a descriptive letter or brief environmental assessment which demonstrates that the specific conditions or criteria for classification of a CE as found in paragraph (1) of this subsection is satisfied and that significant environmental impacts will not result, including the results of any coordination effected with resource agencies.

      2. (B) Examples may include, but are not limited to, the following:

         1. (i) modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes such as parking, weaving, turning, climbing, and correcting substandard curves and intersections with only minor amounts of additional right-of-way required;
         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 (CE classification may not be applicable when the proposed project requires acquisition of more than minor amounts of right-of-way, since in such cases the preparation of an environmental assessment may be appropriate);
         4. (iv) addition of travel lanes to rural roadways within existing right-of-way or with minimal right-of-way required;
         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;
         8. (viii) approvals for disposal of excess right-of-way or for joint or limited use of right-of-way, where the proposed use does not have significant adverse impacts; and
         9. (ix) acquisition of land for hardship or protective purposes (hardship and protective buying will be permitted only for a particular parcel or a limited number of parcels; this type of right-of-way acquisition will qualify for a CE classification only when the acquisition will not limit the evaluation of alternatives, including shifts in alignment for planned construction projects; no project development on such land may proceed until the environmental review process has been completed).
   5. (5) The department may classify other state projects as a CE if, from the documentation required to be submitted, a determination is made that the state project meets the CE classification.

4. (d) Environmental assessments (EA).

   1. (1) Preparation. For state projects in which the extent of impacts is not readily discerned, an EA will be prepared to determine the nature and extent of environmental impacts, with either a finding of no significant impact anticipated or an environmental impact statement required.

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

      1. (A) definition of the scope of the project;
      2. (B) identification of any alternatives to the proposed actions;
      3. (C) determination as to which aspects of the proposed actions have potential for environmental impact;
      4. (D) identification of measures and alternatives which might mitigate adverse environmental impacts; and
      5. (E) identification of other environmental review and consultation requirements which should be prepared concurrently (districts will be responsible for accomplishing this through an early coordination process; a summary of the contacts and comments received will be included in the EA).
   3. (3) Notice. As required in subsection (b)(2)(D) of this section, the notice of the public hearing will announce the availability of the EA and where it may be obtained or reviewed.
   4. (4) Division determination. If, at any point in the EA process, the division determines that the state project may have a significant impact on the environment, the preparation of an Environmental Impact Statement (EIS) as discussed in subsection (e) of this section will be required.
   5. (5) Finding of no significant impact. The department, after its review of the EA, proposed mitigation measures, and any public hearing statement or comments received regarding the EA, and if in agreement with the district office recommendations, will make a separate written finding of no significant impact (FONSI), incorporating the EA and any other appropriate environmental documents and agency consultations and coordinations. The FONSI completes the environmental and public involvement process for a state project as found in subsection (b) of this section.
   6. (6) Notification of FONSI. After issuance of the FONSI, a notice of the availability of the FONSI shall be furnished by the department to state clearinghouses. Notification will also be given to the local media through a press release.

5. (e) Environmental impact statements (EIS).

   1. (1) Required. An EIS will be required for state projects in which there are likely to be significant environmental impacts. The preparation of the EIS will occur in two stages:

      1. (A) the draft EIS or DEIS; and
      2. (B) the final EIS or FEIS. (A supplemental EIS may be required in some cases.)
   2. (2) Not required. If the analyses or agency review comments indicate that significant impacts to the human environment will not occur, an EIS should not be prepared.

   3. (3) Notice of intent. As a preliminary to the preparation of an EIS there shall be prepared a notice of intent (NOI) to prepare an EIS. The initiation of the NOI will begin during the early coordination process with agencies, as described in subsection (b)(1) of this section, prior to the preparation of an EIS.

      1. (A) The NOI should:

         1. (i) briefly detail the state project;
         2. (ii) identify significant impacts on the human environment; and
         3. (iii) identify any preliminary alternatives under consideration by the department.
      2. (B) After review and approval of the NOI by the division, it shall be sent to applicable agencies for their early review and comment. Any comments received will be used as the basis for the DEIS, as described in paragraph (4) of this subsection.
      3. (C) A summary of the NOI shall also be published in the Texas Register, and in local newspapers.

   4. (4) Draft environmental impact statement. The draft environmental impact statement (DEIS) shall identify and evaluate all reasonable alternatives to the state project; discuss the elimination of other alternatives, if applicable; summarize the studies, reviews, consultations, and coordination required by law to the extent appropriate; and designate a preferred alternative if appropriate.

      1. (A) When the division determines that the DEIS complies with these and other requirements, the DEIS will be approved for circulation by signing and dating the cover sheet, and shall be printed in sufficient number to provide review copies.
      2. (B) The DEIS will be circulated for comment after a notice is published in the Texas Register and in local newspapers which describes a circulation and comment period of no less than 45 days, and identifies where comments are to be sent.
      3. (C) The DEIS shall be transmitted at no charge to state agencies through the TRACS system, and directly to applicable federal agencies.
      4. (D) The DEIS will be made available to interested public officials, interest groups, and members of the public at the request of any such group or individuals.
      5. (E) A fee which is not more than the actual cost of reproduction of the DEIS may be charged for any written request received for a copy of the DEIS.
      6. (F) The DEIS may also be reviewed at designated public locations.
      7. (G) Either an opportunity for public hearing shall be afforded or a public hearing shall be held for a DEIS state project. (Notice of such public hearing shall be in accordance with subsection (b) of this section.)
      8. (H) The DEIS will be made available at the district for the general public at a minimum of 15 days in advance of the public hearing for state projects.

   5. (5) Final Environmental Impact Statement. After the DEIS is circulated and comments reviewed, a final environmental impact statement (FEIS) shall be prepared by the department.

      1. (A) The FEIS shall:

         1. (i) identify the preferred alternative and evaluate all reasonable alternatives considered;
         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 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 those issues and the consultations and other efforts made to resolve interagency disagreements. (Every reasonable effort shall be made to resolve interagency disagreements.)
      2. (B) The division will indicate approval of the FEIS by signing and dating the cover page.
      3. (C) The initial printing of the FEIS shall be in sufficient quantities to meet the request for copies which can be reasonably expected from agencies, organizations, and individuals.
      4. (D) A fee which 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 shall be published in the Texas Register and in local newspapers.

         1. (i) The notice shall include information on obtaining copies.
         2. (ii) The public and interested organizations will have 30 days following publication of the notice in the Texas Register to submit comments.
      7. (G) Following the approval of the FEIS, it will be made available to agencies which 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 department 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:

         1. (i) present the basis for the decision and summarize any mitigation measures; and
         2. (ii) be published in the Texas Register.

   6. (6) Re-evaluations. An evaluation to determine whether a supplement to the DEIS or a new DEIS is needed shall be prepared by the department if an acceptable FEIS is not submitted within three years from the date of circulation of the DEIS. The re-evaluation will:

      1. (A) not be circulated for agency review, although resource agency coordination may be required;
      2. (B) be required before further approvals may be granted if 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 have not occurred within three years after the approval of the FEIS, supplemental FEIS, or the last major departmental approval.

   7. (7) Supplemental environmental impact statements. A DEIS or FEIS may be supplemented at any time.

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

         1. (i) changes to the state project would result in significant environmental impacts that were not evaluated in the EIS; or
         2. (ii) 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.

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

         1. (i) changes to the state 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. (ii) 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 shall be prepared and published in the Texas Register).
      3. (C) When there is an uncertainty of the significance of new impacts, the department will develop appropriate environmental studies, or if deemed appropriate, an EA to assess the impacts of the changes, new information, or new circumstances.
      4. (D) If the department determines, based on studies, that a supplemental EIS is not necessary, it shall so indicate in the project record.
      5. (E) A supplemental EIS shall be developed using the same process and format as an original EIS, except that early coordination shall not be required.

      6. (F) 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 state project. In this situation the preparation of the supplemental EIS shall not necessarily:

         1. (i) prevent the granting of new approvals;
         2. (ii) require the withdrawal of previous approvals; or
         3. (iii) 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 shall suspend any activities which 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 March 8, 1995, 20 TexReg 1339.