1. (a) Applicability. This section specifies when TxDOT shall designate TCEQ as a participating agency in relation to the environmental review of a transportation project, and therefore coordinate with TCEQ. TxDOT may elect to coordinate with TCEQ concerning other transportation projects that this MOU does not require to be coordinated.

   1. (1) Not applicable. This MOU does not apply to a project that TxDOT classifies as a categorical exclusion, blanket categorical exclusion, or programmatic categorical exclusion, under §2.81 of this chapter (relating to Categorical Exclusions) or §2.82 of this chapter (relating to Blanket and Programmatic Categorical Exclusions), and TxDOT will not coordinate such projects with TCEQ.

   2. (2) Applicable.

      1. (A) Environmental reports. TxDOT may, but is not required to, separately coordinate an environmental report with TCEQ.

      2. (B) Environmental assessments. TxDOT shall coordinate the environmental assessment with TCEQ if one or more of the triggers in subsection (b) of this section apply, except TxDOT will not coordinate an environmental assessment if:

         1. (i) TxDOT already coordinated one or more environmental reports for a project that evaluate the subject matter of all applicable triggers in subsection (b) of this section;
         2. (ii) the project as it affects the subject matter of the applicable triggers in subsection (b) of this section does not subsequently change;
         3. (iii) the conclusions in the environmental reports do not subsequently change; and
         4. (iv) TCEQ did not request TxDOT to also coordinate the environmental assessment under subsection (d)(2) of this section.
      3. (C) Environmental impact statements and supplemental environmental impact statements. TxDOT shall coordinate the draft environmental impact statement and the final environmental impact statement with TCEQ following the requirements of this MOU and at the times described in §2.103(d)(2)(A) and (B) and (g)(2) of this chapter (relating to Public Participation for an Environmental Impact Statement or Supplemental Environmental Impact Statement). TxDOT will coordinate a supplemental environmental impact statement with TCEQ following the requirements of this MOU.
      4. (D) Reevaluations. If TxDOT prepares a written reevaluation for a transportation project under §2.85 of this chapter (relating to Reevaluations), TxDOT shall coordinate the reevaluation with TCEQ if the earlier coordination concerning the project is no longer valid as a result of changes in the project.

2. (b) Triggers for coordination.

   1. (1) Air quality. Projects that add capacity in a nonattainment or maintenance area of the State.

   2. (2) Water quality.

      1. (A) Projects that will require Tier II individual Clean Water Act Section 401 certification under procedures defined in the most recent version of the memorandum of agreement between the U.S. Army Corps of Engineers and TCEQ.
      2. (B) Projects located in the recharge, transition, or contributing zones of the Edwards Aquifer, pursuant to 30 TAC Chapter 213, Subchapters A and B (relating to Edwards Aquifer). For these projects, the environmental review document or environmental report provided to TCEQ by TxDOT shall provide the location of the project within the Edwards Aquifer. TxDOT shall include a statement that the proposed projects and associated activities are to be implemented, operated, and maintained in a manner that complies with the Edwards Aquifer rules and any applicable TCEQ guidance documents in effect to implement the rules.

      3. (C) Projects located within five miles of an impaired assessment unit and within the watershed of the impaired assessment unit.

         1. (i) Determination of trigger. For the purposes of this subparagraph, the determination of whether an assessment unit is impaired must be made when TxDOT assesses whether a trigger in this subparagraph applies to the transportation project, and must be based on the most recent TCEQ integrated report at that time prepared under Clean Water Act §305(b) that includes a Clean Water Act §303(d) list that has been approved by the EPA.

            1. (I) TxDOT will identify impaired assessment units using information publicly available from TCEQ.
            2. (II) TxDOT shall identify whether the project drains to any impaired assessment unit using publicly available map resources, survey data, topographic data, or other scientifically valid data. TxDOT may identify the watershed of an impaired assessment unit using the 12-digit hydrologic unit codes produced by the United States Geologic Service.

         2. (ii) Required information. If the trigger in this subparagraph applies to a project, TxDOT in the environmental review document or environmental report shall provide the location of the project in the watershed of the impaired assessment unit, the assessment unit number, segment name, segment number, impairments, and the year of the Clean Water Act §303(d) list used, and shall provide:

            1. (I) For impaired assessment units with EPA-approved TMDLs, the name and date of the EPA-approved TMDL and if applicable, the TCEQ-approved I-Plan, and a statement that the project and associated activities will be implemented, operated, and maintained in a manner that is consistent with the approved TMDL or approved I-Plan; or
            2. (II) For impaired assessment units without EPA-approved TMDLs, an acknowledgement that the assessment unit does not have an EPA-approved TMDL and a statement that the project and associated activities will be implemented, operated, and maintained using best management practices to control the discharge of pollutants from the project site.

3. (c) General.

   1. (1) No coordination by local government. When a local government acts as the project sponsor concerning the preparation of an environmental review document or environmental report, TxDOT shall perform the coordination of the document with TCEQ as described in this MOU.
   2. (2) Compliance with law. Environmental review documents and environmental reports prepared and provided to TCEQ by TxDOT will be in compliance with applicable law.
   3. (3) Computation of time. In computing time for the purposes of this MOU, the period begins on the day after the act or event in question and concludes at the end of the last day of that designated period, unless that day is a Saturday, Sunday, or state holiday, in which event the period concludes at the end of the next day that is not a Saturday, Sunday, or state holiday.

4. (d) Review and response.

   1. (1) TxDOT shall forward the environmental review document or environmental report to the e-mail address specified by TCEQ. The e-mail will indicate all triggers under subsection (b) of this section that apply to the project. TCEQ shall have a period of 30 days, from the date of receipt, to review the environmental review document or environmental report and provide written comments. Before the deadline for review, TCEQ may, if necessary, notify TxDOT that it is extending the review period for no more than 15 additional days. TCEQ will submit any comments to the e-mail address specified by TxDOT.
   2. (2) For a project for which TxDOT prepares an environmental assessment, if TxDOT coordinates an environmental report concerning the project, TCEQ may request during the comment period that TxDOT also coordinate the environmental assessment for the project. If TCEQ makes a request TxDOT shall coordinate the related environmental assessment.
   3. (3) If TCEQ provides comments, TxDOT will respond in writing to TCEQ's comments. TxDOT will ensure that the final version of the environmental review document describes the results of any coordination with and comments made by TCEQ, and includes a summary of those contacts and comments. TxDOT will consider TCEQ comments submitted to TxDOT after the comment deadline to the extent possible, given the stage of the environmental review process at the time of the submission.

Source Note:The provisions of this §2.305 adopted to be effective May 16, 2013, 38 TexReg 2859.