(1) This section applies to a transportation project
that is classified by the department delegate as a CE. A CE is a category
of actions that have been found to have no significant effect on the
environment, individually or cumulatively.
(2) This section applies to a transportation project
that is a state transportation project or an FHWA transportation project,
except that subsection (e) of this section applies only if the project
is an FHWA transportation project.
(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.
(b) Approval for classification as CE.
(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) Except as provided in paragraph (4) of this subsection,
the project sponsor will submit to the department delegate an environmental
issues checklist, prepared electronically in the department's environmental
database, showing compliance with the section. The checklist does
not constitute an environmental review document. FHWA may require
an environmental review document for one of its projects, in which
case the project sponsor must submit to the department delegate 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) The environmental issues checklist 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.
(4) The department's environmental affairs division
may direct that certain types of projects meeting specified criteria
be processed as CEs, without preparation of individual environmental
issues checklists, by recording verification that the project meets
the specified criteria.
(c) Restrictions on classification.
(1) A CE project directly, indirectly, or cumulatively,
(A) induce significant impacts to planned growth or
land use for the area;
(B) cause any significant environmental impacts to
any natural, cultural, recreational, historic, or other resource;
(C) cause any significant impacts to air, noise, or
(D) relocate significant numbers of people; or
(E) cause significant impacts on travel patterns.
(2) The CE action may not involve unusual circumstances
(A) significant environmental impacts;
(B) substantial controversy on environmental grounds;
(C) inconsistencies with federal or state law.
(d) Categories of projects. For a state transportation
project or an FHWA transportation project, the categories of projects
listed at 23 C.F.R. §771.117(c) and (d) normally will qualify
as categorical exclusions, unless unusual circumstances make the project
ineligible for designation as a categorical exclusion under subsection
(c) of this section. The categories of projects listed at 23 C.F.R. §771.117(c)
and (d) are not the only types of projects that may qualify as categorical
(e) FHWA transportation projects.
(1) For an FHWA transportation project, in addition
to subsections (a) - (d) 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) 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.
|Source Note: The provisions of this §2.81 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