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RULE §371.35Required Environmental Review and Determinations
Repealed Date:08/04/2010

      (ix) documentation of required public participation activities and coordination with appropriate governmental agencies.

    (B) Prior to the applicant's adoption of the DWSRF engineering feasibility report, the applicant will hold a public hearing on the proposed project and the EID, and provide the executive administrator with a verbatim transcript of the hearing. The executive administrator will provide guidance to the applicant regarding the contents of the hearing notice and of the hearing. The hearing will be advertised at least 30 days in advance in a local newspaper of general circulation within the area to be impacted by the proposed project. Notice of the public hearing and availability of the documents also will be sent at least 30 days in advance of the public hearing to all local, state, and federal agencies and public and private parties that may have an interest in the proposed project. Included with the transcript will be a list of all attendees, any written testimony, and the applicant's Responsiveness Summary to the issues raised.

    (C) The applicant will provide copies of the EID to all federal, state, and local agencies and others with an interest in the proposed project. The executive administrator will provide guidance to the applicant regarding coordination requirements.

  (3) The format of an EIS will encourage sound analysis and clear presentation of alternatives, including the no action alternative and the preferred alternative, and their environmental, economic, and social impacts. The following format must be followed by the applicant unless the executive administrator determines there are compelling reasons to do otherwise:

    (A) a cover sheet identifying the applicant, the proposed project(s), the program through which financial assistance is requested, and the date of publication;

    (B) an executive summary consisting of a 10 to 15 page precis of the critical issues of the EIS in sufficient detail that the reader may become familiar with the proposed project and its cumulative effects. The summary will include:

      (i) a description of the existing problem;

      (ii) a description of each alternative;

      (iii) a listing of each alternative's potential environmental impacts, mitigative measures and any areas of controversy; and

      (iv) any major conclusions;

    (C) the body of the EIS, which will contain the following information:

      (i) a complete and clear description of the purpose and need for the proposed project and objectives;

      (ii) a balanced description of each alternative considered by the applicant. The descriptions will include the size and location of the facilities and pipelines, land requirements, operation and maintenance requirements, and construction schedules. The alternative of no action will be discussed and the applicant's preferred alternative(s) will be identified. Alternatives that were eliminated from detailed examination will be presented with the reasons for their elimination;

      (iii) a description of the alternatives available to the board including:

        (I) providing financial assistance to the proposed project;

        (II) requiring that the proposed project be modified prior to providing financial assistance to reduce adverse environmental impacts, or providing assistance with conditions requiring the implementation of mitigative measures; and

        (III) providing no financial assistance;

      (iv) a description of the alternatives available to other local, state, and federal agencies which may have the ability to issue or deny a permit, provide financial assistance, or otherwise effect or have an interest in any of the alternatives;

      (v) a description of the affected environment and environmental consequences of each alternative. The affected environment on which the evaluation of each alternative will be based includes, as a partial listing, hydrology, geology, air quality, noise, biology, socioeconomics, land use, and cultural resources of the planning area. The executive administrator will provide guidance, as necessary, to the applicant regarding the evaluation of the affected environment. The discussion will present the total impacts of each alternative in a manner that will facilitate comparison. The effects of the no action alternative must be included to serve as a baseline for comparison of the adverse and beneficial impacts of the other alternatives. A description of the existing environment will be included in the no action section to provide background information. The detail in which the affected environment is described will be commensurate with the complexity of the situation and the significance of the anticipated impacts.

  (4) The draft EIS will be provided to all local, state and federal agencies and public groups with an interest in the proposed project and be made available to the public for review. The final EIS will include all objections and suggestions made before and during the draft EIS review process, along with the issues of public concern expressed by individuals or interested groups. The final EIS must include discussions of any such comments pertinent to the project or the EIS. All commentors will be identified. If a comment has led to a change in either the project or the EIS, the reason should be given. The board's staff will always endeavor to resolve any conflicts that may have arisen, particularly among permitting agencies, prior to the issuance of the final EIS. In all cases, the comment period will be no less than 45 days.

  (5) Material incorporated into an EIS by reference will be organized to the extent possible into a supplemental information document and be made available for public review upon request. No material may be incorporated by reference unless it is reasonably available for inspection by interested persons within the comment periods specified in paragraph (4) of this subsection.

  (6) Preparation of the EIS will be done, at the discretion of the executive administrator: directly by its own staff; by consultants to the board; or by a consultant, contracted by the applicant subject to approval by the executive administrator. In the latter two cases, the consultants will be required to execute a disclosure statement prepared by the executive administrator signifying they have no financial or other conflicting interest in the outcome of the project. When an EIS is prepared by contractors, either in the service of the applicant or the board, the executive administrator will independently evaluate the EIS prior to issuance of the ROD and take responsibility for its scope and contents. The board staff who undertake this evaluation will be identified under the list of preparers along with those of the contractor and any other parties responsible for the content of the EIS.

  (7) The following public participation requirements are the minimum allowable to the applicant and the board.

    (A) Upon making the determination that an EIS will be required of a proposed project, the executive administrator will publish in the Texas Register and distribute a notice of intent to prepare an EIS.

    (B) As soon as possible after the notice of intent has been issued, the executive administrator will convene a meeting of the affected federal, state, and local agencies, the applicant, and other interested parties to determine the scope of the EIS. A notice of this scoping meeting may be incorporated into the notice of intent or prepared and issued separately. In no case will the notification period be less than 45 days. As part of the scoping meeting the board will, at a minimum:

      (i) determine the significance of issues and the scope of those significant issues to be analyzed in depth in the EIS;

      (ii) identify the preliminary range of alternatives to be considered;

      (iii) identify potential cooperating agencies and determine the information or analyses that may be needed from cooperating agencies or other parties;

      (iv) discuss the method for EIS preparation and the public participation strategy;

      (v) identify consultation requirements of other laws and regulations;

      (vi) determine the relationship between the preparation of the EIS and the completion of the DWSRF engineering feasibility report and any necessary arrangements for coordination of the preparation of both documents.

    (C) Following the scoping process, the executive administrator will begin the identification and evaluation of all potentially viable alternatives to adequately address the range of issues developed in the scoping. A summary of this, including a list of the significant issues identified, will be provided to the applicant and other interested parties.

    (D) The draft EIS will be the subject of a formal public hearing and any other public participation activities determined to be appropriate during the scoping process. Both the draft EIS and final EIS will be distributed and made available for public review in a fashion consistent with the requirements of paragraph (2)(B) of this subsection except that the advertisement period for the public hearing and comment periods for the draft EIS and final EIS will be no less than 45 days. The executive administrator will publish, in the Texas Register and a newspaper(s) of general circulation in the project area, a notice of availability of the EIS giving locations at which it will be available for public review at least 45 days prior to making any environmental determination.

(c) Environmental Review.

  (1) When the executive administrator has determined that an applicant's proposed project may be excluded from a formal environmental review or has determined that a CE is to be rescinded, the executive administrator will prepare a public notice of the determination and the availability of supporting documentation for public inspection. The notice will be published in a local newspaper of community-wide circulation by the applicant. The executive administrator, concurrent with the publication, will distribute the notice to all interested parties.

  (2) An environmental review of the proposed project, supported by the applicant's EID, will be conducted by the executive administrator to determine whether any significant impacts are anticipated and whether any changes may be made in the proposed project to eliminate significant adverse impacts. As part of this review, the executive administrator may require the applicant to submit additional information or undertake additional public participation and coordination to support the environmental determination. Based on the environmental review, the executive administrator will prepare an EA, describing:

    (A) the purpose and need for the proposed project;

    (B) the proposed project, including its costs;

    (C) the alternatives considered and the reasons for their rejection or acceptance;

    (D) the existing environment;

    (E) any potential adverse impacts and mitigative measures;

    (F) any proposed conditions to the provision of financial assistance and any means provided for the monitoring of compliance with the conditions; and

    (G) a summary of the public comments and response to those comments made by the applicant.

  (3) Based upon this EA, the executive administrator will issue a FNSI or issue a notice of intent to prepare an EIS. The FNSI will include a brief description of the proposed project, its costs, any mitigative measures proposed for the applicant as a condition of its receipt of financial assistance, and a statement to the effect that comments supporting or disagreeing with the FNSI may be submitted for consideration by the board. The EA will be attached to the FNSI when mitigative measures are specified by conditions of the financial assistance. The FNSI will be distributed to all parties, governmental entities, and agencies that may have an interest in the proposed project. No action regarding approval of the DWSRF engineering feasibility report will be taken by the executive administrator for at least 30 days after the issuance of the FNSI. Additionally, except for projects utilizing the pre-design option under §371.38 of this title (relating to Pre-Design Funding Option), no funds for building will be released for at least 30 days after the issuance of the FNSI. For projects utilizing the pre-design option, approval of the release of funds for planning will be made prior to the issuance of the FNSI, but no approval for release of funds for design or building will be made until at least 30 days after the issuance of the FNSI.

  (4) Except for projects utilizing pre-design funding under §371.38 of this title (relating to Pre-Design Funding Option), the executive administrator will prepare a concise public ROD following the public hearing on the draft EIS and the comment period on the final EIS and before the decision to approve the DWSRF engineering feasibility report or to provide or deny financial assistance to the proposed project. The ROD will describe those mitigative measures to be taken which will make the selected alternative environmentally acceptable. For projects utilizing the pre-design funding option under §371.38 of this title (relating to Pre-Design Funding Option), the ROD shall be made prior to the board's approval of the release of funds for design.

(d) Application of other laws and authorities. In addition to the requirements of state law and rules, the Act, and the NEPA, the board must, as required by the initial guidance for the state water pollution control revolving fund and the drinking water capitalization grant agreement, insure that each project proposed to receive DWSRF financial assistance complies with the following federal laws and authorities respecting the human environment: the Archeological and Historic Preservation Act of 1974, Public Law 93-191; the Historic Sites Act; the Clean Air Act, 42 United States Code 7506(c); the Coastal Barrier Resources Act, 16 United States Code 3501 et seq., the Coastal Zone Management Act of 1972, Public Law 92-583, as amended; the Endangered Species Act, 16 United States Code 1531 et seq.; Executive Order 11953, Protection and Enhancement of the Cultural Environment; Cont'd...

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