1. (a) Applicability.

   1. (1) This section applies to a transportation project that is classified by the department delegate as a CE. A CE is a project that does not individually or cumulatively have a significant environmental impact.
   2. (2) This section applies to a transportation project that is a state transportation project or an FHWA transportation project, except that subsection (d) of this section applies only if the project is an FHWA transportation project.
   3. (3) This section does not apply to the purchase of an option to acquire real property, or to the exercise of an option or other early and advance acquisition of land. The required environmental review for those types of transactions is specified in §2.131 of this chapter (relating to Special Right-of-Way Acquisition).

2. (b) Approval for classification as CE.

   1. (1) If the project sponsor satisfies the requirements of this subsection the department delegate may approve the classification of a transportation project as a CE.
   2. (2) The project sponsor will submit to the department delegate documentation that is an environmental issues checklist showing compliance with the section. However, if required by the FHWA for an FHWA transportation project, the project sponsor must submit, instead of a checklist, a brief environmental review document discussing and analyzing the potential environmental impacts. If the department delegate determines that a transportation project qualifies as a CE, it will document that determination in the project file.
   3. (3) The environmental issues checklist or environmental review document must show that the project does not violate the restrictions in subsection (c) of this section and that significant environmental impacts will not result based on the results of an evaluation of the project. The project sponsor must indicate if coordination is required, and if so, the portion of coordination that can be completed before final approval of the environmental review document has been completed. The environmental issues checklist or environmental review document must summarize all EPICs. EPICs that will be performed during construction must be included in the plans, specifications, and estimates.

3. (c) Restrictions on classification.

   1. (1) A CE project directly, indirectly, or cumulatively, may 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 may 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 Parks and Wildlife Code, Chapter 26, Government Code §442.016, or the Texas Antiquities Code (Natural Resources Code, Chapter 191); or
      4. (D) inconsistencies with federal or state law.

4. (d) FHWA transportation projects.

   1. (1) For an FHWA transportation project, in addition to subsections (a) - (c) of this section, the department delegate and project sponsor must comply with any federal laws, including FHWA's rules, applicable to the processing of the project as a CE.
   2. (2) If the department has a programmatic agreement with FHWA regarding the review and approval of categorically excluded transportation projects, the project sponsor and department delegate will comply with the terms of the agreement. If federal law, including FHWA's rules, or a programmatic agreement conflicts with this chapter, the federal law or programmatic agreement provision controls to the extent of the conflict.
   3. (3) A programmatic agreement may allow that FHWA's approval is deemed granted if the department delegate finds that a project is within the conditions for approval for a project specified in the agreement. If, however, a programmatic agreement requires that approval be issued by FHWA, or if the department has no programmatic agreement with FHWA, the department delegate will, at the conclusion of technical review, forward the environmental issues checklist or environmental review document to FHWA with an appropriate recommendation.

Source Note:The provisions of this §2.81 adopted to be effective April 16, 2012, 37 TexReg 1727.