1. (a) Applicability.

   1. (1) This section applies to a transportation project that the department delegate has not classified as a CE, BCE, or PCE, and that does not clearly require the preparation of an EIS, or if the department delegate believes an EA would assist in determining the need for an EIS.
   2. (2) This section applies to a transportation project that is a state transportation project or an FHWA transportation project, except that subsection (i) of this section applies only if the project is an FHWA transportation project.

2. (b) Purpose and content.

   1. (1) An EA describes the purpose and need for the project, any alternatives considered, any mitigation measures that are to be incorporated as EPICs into the project, and the extent of environmental impact, including direct, indirect, and cumulative impacts. The project sponsor will conduct environmental studies and prepare an EA to determine the nature and extent of environmental impacts, and to provide full disclosure of project impacts to the public.
   2. (2) If, taking into account any mitigation measures or commitments documented in the EA, the EA shows that the environmental impacts are not significant, the EA will conclude with a FONSI. If, taking into account any mitigation measures or commitments documented in the EA, the EA shows that the impacts are significant, the EA will conclude that an EIS is required.
3. (c) Coordination. The project sponsor will comply with §2.12 of this chapter (relating to Project Coordination), and will include in the EA the results of coordination and a summary of the contacts with participating agencies and the comments received.
4. (d) Public participation. The project sponsor will comply with §2.102 of this chapter (relating to Public Participation for an Environmental Assessment) and will include in the EA the results of public participation and the comments received.
5. (e) Organization of EA. To the maximum extent possible, an EA should summarize, incorporate by reference, and include as appendices any separately prepared environmental reports supporting the EA's conclusions, rather than repeat the detailed information from environmental reports in the body of the EA.
6. (f) Circulation of draft EA. The project sponsor may not disclose a draft of an EA before public disclosure of the EA is approved by the department delegate or, for an FHWA transportation project, by FHWA. The project sponsor will comply with §2.102 of this chapter concerning notice of the draft EA.
7. (g) Change in determination of impact. If the department delegate, taking into account any mitigation measures or commitments documented in the EA, determines at any point during the environmental studies that the project may have a significant impact on social, economic, or environmental concerns, the department delegate will direct the project sponsor to prepare an EIS.

8. (h) Preparation of FONSI.

   1. (1) Finding of no significant impact (FONSI) means a document that is issued by the department delegate that briefly presents the reasons why, taking into account any mitigation measures or commitments documented in the EA, the transportation project will not have a significant effect on the human environment and, therefore, for which an environmental impact statement will not be prepared. A FONSI will include the EA, or a summary of it, and will reference any other environmental documents related to the FONSI. If the EA is included, the FONSI may incorporate discussion in the EA by reference rather than repeating it.
   2. (2) The department delegate will review the EA, any proposed mitigation measures, coordination with participating agencies, and if a public hearing was held, the summary and analysis, and the comment and response report. The department delegate, if appropriate, will explain the decision in a written FONSI, including how the EA and other environmental documents, coordination, and public participation affected the decision.
   3. (3) The project sponsor will give notice of availability of a FONSI in accordance with §2.102 of this chapter.
9. (i) FHWA transportation project. For an FHWA transportation project, in addition to the requirements of subsections (a) - (h) 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 an EA. If federal law, including FHWA's rules, conflicts with this chapter, federal law controls to the extent of the conflict. At the conclusion of the technical review, the department delegate will forward the environmental review document and any other relevant documentation to FHWA with an appropriate recommendation.

Source Note:The provisions of this §2.83 adopted to be effective April 16, 2012, 37 TexReg 1727.