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RULE §2.84Environmental Impact Statements

(a) Applicability.

  (1) This section applies to a transportation project if there are likely to be significant environmental impacts. The project sponsor will prepare an EIS that is a detailed public disclosure document that evaluates the impacts of the project.

  (2) This section applies to a transportation project that is a state transportation project or an FHWA transportation project, except that subsection (g) of this section applies only if the project is an FHWA transportation project.

(b) Content.

  (1) An EIS must include:

    (A) a discussion of the purpose and need for the project;

    (B) an evaluation of all reasonable alternatives satisfying the purpose and need, their associated social, economic, and environmental impacts, an evaluation of alternatives eliminated from detailed study, and a determination of the preferred alternative;

    (C) a summary of studies conducted to determine the nature and extent of environmental impacts;

    (D) a description of the environmental impact of the project, any unavoidable adverse environmental impacts and associated measures to minimize harm, and any irreversible and irretrievable commitments of resources involved if the project is implemented;

    (E) a description of the direct, indirect, and cumulative effects of the project; and

    (F) a discussion of compliance with all applicable laws or reasonable assurances that the requirements can be met, and a description of the mitigation measures that are to be incorporated into the project.

  (2) Coordination. The project sponsor will include in the EIS the results of coordination conducted before final approval of the EIS.

  (3) Public participation. The project sponsor will conduct appropriate public participation in accordance with Subchapter E of this chapter (relating to Public Participation) and will include in the EIS the results of public participation and the comments received.

  (4) Organization. To the maximum extent possible, an EIS should summarize, incorporate by reference and include as appendices any separately prepared environmental reports supporting the EIS's conclusions, rather than repeat the detailed information from environmental reports in the body of the EIS.

(c) Processing the EIS.

  (1) The project sponsor will in the following order:

    (A) publish a notice of intent under §2.102 of this chapter (relating to Notice of Intent (NOI)) and develop a coordination plan under §2.103 of this chapter (relating to Coordination Plan for EIS);

    (B) conduct public participation and, subject to agreement by both the department and the entity with whom coordination is being conducted, coordination in the manner and at the times prescribed by law;

    (C) prepare the draft EIS (DEIS);

    (D) issue the notice of availability of the DEIS;

    (E) conduct the public hearing;

    (F) prepare the final EIS (FEIS);

    (G) issue the notice of availability of the FEIS; and

    (H) prepare the record of decision (ROD).

  (2) Accelerated Decision-making.

    (A) If public comments are minor, and changes are limited to factual corrections or explanations of why comments do not warrant additional agency response, the project sponsor may prepare errata sheets and attach them to the DEIS, rather than preparing the FEIS. When errata sheets are attached to the DEIS in lieu of a separately prepared FEIS, all other applicable requirements for completing the EIS set forth in subsection (e) of this section apply.

    (B) The project sponsor may prepare the FEIS and ROD as a single document unless:

      (i) the FEIS makes substantial changes to the proposed project that are relevant to environmental or safety concerns; or

      (ii) there are significant new circumstances or information relevant to environmental concerns that bear on the proposed action or the impacts of the proposed action.

  (3) The project sponsor will prepare a supplemental DEIS, a supplemental FEIS, or both if required by §2.86 of this subchapter (relating to Supplemental Environmental Impact Statements).

(d) Preparation of DEIS.

  (1) The project sponsor will prepare a DEIS that meets the requirements of subsection (b) of this section. A preferred alternative may be designated, if appropriate. The preferred alternative may be developed to a higher level of detail than other alternatives. The higher level detail must be limited to work necessary for preliminary design, as described by paragraph (5) of this subsection. The department delegate will review, and will approve the development of the preferred alternative to a higher level of detail if appropriate, and only if that development does not prevent the department from making an impartial decision as to whether to accept another alternative under consideration in the environmental review process.

  (2) The DEIS is subject to the department delegate's approval before it is made available to the public as a department document. For highway projects processed under Subchapter C of this chapter (relating to Environmental Review Process for Highway Projects), the DEIS is approved for public review on the department delegate's completing the technical review of the DEIS under §2.49 of this chapter (relating to Technical Review).

  (3) After the department delegate approves the DEIS, the project sponsor will circulate the DEIS and give notice of its availability in accordance with §2.108 of this chapter (relating to Notice of Availability).

  (4) After the DEIS is circulated, public hearing held, and comments reviewed, the project sponsor will prepare an FEIS, or a supplemental DEIS if required.

  (5) For the purposes of paragraph (1) of this subsection, preliminary design defines the general project location and design concepts. It includes, but is not limited to, preliminary engineering and other activities and analyses, such as environmental investigations, topographic surveys, metes and bounds surveys, geotechnical investigations, hydrologic analysis, hydraulic analysis, utility engineering, traffic studies, financial plans, revenue estimates, hazardous materials assessments, general estimates of the types and quantities of materials, and other work needed to establish parameters for the final design.

(e) Preparation of FEIS.

  (1) The project sponsor will prepare an FEIS that meets the requirements of subsection (b) of this section and will prepare a public hearing record under §2.107 of this chapter (relating to Public Hearing). The FEIS may consist of the DEIS and attached errata sheets, if appropriate.

  (2) After the department delegate approves the FEIS, the project sponsor will circulate the FEIS and issue notice of its availability in accordance with §2.108 of this chapter.

(f) Preparation of ROD.

  (1) The department delegate will issue a ROD that:

    (A) presents the basis for the department's decision;

    (B) identifies all alternatives considered;

    (C) specifies the alternative or alternatives that were considered to be environmentally preferable;

    (D) states whether all practical means to avoid or minimize environmental harm have been adopted, and if practical means were not adopted, why they were not adopted; and

    (E) summarizes mitigation measures.

  (2) If the FEIS and ROD are prepared as a single document, the document will indicate on the cover of the document that it is both the FEIS and ROD, and the department delegate's approval of that document represents approval of both the FEIS and ROD.

  (3) If the FEIS and ROD are not prepared as a single document, the department delegate will complete and sign the ROD not earlier than the 30th day after the date that the notice of the availability of the FEIS is published in the Texas Register or Federal Register, and the department delegate will separately issue notice of the availability of the ROD in accordance with §2.108 of this chapter.

  (4) Until the ROD is signed, neither the department nor any local government project sponsor may take any action concerning the project that would have an adverse environmental impact or limit the choice of reasonable alternatives.

  (5) If after a ROD is issued for a project the department approves an alternative that was not identified as the preferred alternative, the department delegate will prepare a revised ROD and will publish notice of the availability of the revised ROD in accordance with §2.108 of this chapter.

(g) FHWA transportation project. For an FHWA transportation project, in addition to subsections (a) - (f) 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 EIS. If federal law, including FHWA's rules, conflicts with this chapter, federal law controls to the extent of the conflict. At the conclusion of 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 §2.84 adopted to be effective April 16, 2012, 37 TexReg 1727; amended to be effective April 16, 2014, 39 TexReg 2941; amended to be effective July 20, 2016, 41 TexReg 5234; amended to be effective September 19, 2018, 43 TexReg 5987

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