Texas Register, Volume 38, Number 49, Pages 8721-8970, December 6, 2013 Page: 8,790
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The amendments remove the requirements in 2.81(b)(3) to
summarize environmental permits, issues, and commitments
(EPICs) in an environmental issues checklist or environmental
review document, and to include EPICs in plans, specifications,
and estimates. Neither of these requirements is needed to
conduct a meaningful review of the environmental impacts of a
transportation project, and therefore is misplaced in Chapter 2.
The amendments delete 2.81(c)(2)(C), which disqualifies a
project from being a categorical exclusion if it would have a
"significant impact on properties protected under Parks and
Wildlife Code, Chapter 26, Government Code, 442.016, or
the Texas Antiquities Code (Natural Resources Code, Chapter
191)." The department does not believe this restriction is neces-
sary or appropriate because 2.81(c)(1)(B) already disqualifies
projects that "cause any significant environmental impacts to
any natural, cultural, recreational, historic, or other resource."
Additionally, the statutes cited in current 2.81(c)(2)(C) each
have their own requirements and prohibitions, with which the
department must comply regardless of whether or not any given
project is classified as a categorical exclusion.
The amendments add a new subsection (d) to 2.81, to indicate
that the project types listed by FHWA in its rule regarding
categorical exclusions, 23 C.F.R. 771.117(c) and (d), normally
will qualify as categorical exclusions under the department's
rules, unless unusual circumstances make the project ineligible
for designation as a categorical exclusion under 2.81(c). The
list of project types at 23 C.F.R. 771.117(c) and (d) was the
basis for the list of BCEs and PCEs at existing 43 TAC 2.82(c)
and (d). As explained below, the department is eliminating the
BCE and PCE sub-classes of categorical exclusions. In light
of this change, the department believes it is appropriate to add
new 2.81(d), to make it clear that those project types listed at
23 C.F.R. 771.117(c) and (d) may continue to be processed as
categorical exclusions, again, absent unusual circumstances.
New 2.81(d) also clarifies that, under the department's rules,
the list of projects at 23 C.F.R. 771.117(c) and (d) is not an
exclusive list of projects that may be processed as categorical
exclusions. Any project that is in a category of actions that has
been found by the department to have no significant effect on
the environment, individually or cumulatively, may be processed
as a categorical exclusion if it meets the other requirements of
amended 2.81.
Finally, the changes remove the references to programmatic
agreements in 2.81(e) because the department is transitioning
from operating under a programmatic agreement with FHWA, to
making categorical exclusion determinations for FHWA trans-
portation projects on its own under the authority delegated by
FHWA in accordance with 23 U.S.C. 326.
Section 2.82, Blanket and Programmatic Categorical Exclu-
sions, is repealed in its entirety. There are multiple reasons for
this repeal. First, the department intends to no longer classify
projects as PCEs once it accepts delegation of responsibility
for making categorical exclusion determinations for FHWA
transportation projects under 23 U.S.C. 326. The department
has negotiated a memorandum of understanding with FHWA to
accomplish this delegation, and as it prepares this preamble,
is awaiting final execution of the MOU by FHWA and the State
of Texas. Once that MOU becomes effective, the department
will no longer need to rely on its programmatic agreement with
FHWA, and sub-classify certain projects as PCEs under that
agreement, because it will have the authority to make categor-
ical exclusion determinations on its own.Second, the department no longer believes that it is useful to
sub-classify certain projects as BCEs. Under both the depart-
ment's existing rules and the amended rules, documentation of
categorical exclusions can be prepared in a checklist format.
The department believes that for the types of projects that are
currently processed as BCEs under the current rules, complet-
ing a checklist will be a minimal administrative burden, especially
if the checklist is completed within the department's electronic
environmental database, which would be explicitly allowed un-
der the amended rules. This will make BCE projects easier to
track compared to the current approach, which requires no doc-
umentation, and will eliminate the need to divide categorically ex-
cluded projects into sub-classifications with different procedural
requirements, which may cause confusion and delay.
Amendments to 2.83, Environmental Assessments, make sev-
eral changes. First, the changes explicitly state that if changes
as a result of public participation are minimal, the project spon-
sor may incorporate the results in the environmental assessment
(EA) by appending errata sheets rather than revising the EA as a
whole. This revision, which is intended to minimize the unneces-
sary production of paper documents, is based on Section 1319
of the Federal Moving Ahead for Progress in the 21st Century
Act (MAP-21), enacted by Congress in 2012.
Second, the changes provide that any separately prepared envi-
ronmental reports supporting an EA's conclusions will not need
to be included as appendices to the EA, as long as they are made
available for public inspection upon request. This revision, like
the previous one, is intended to minimize the unnecessary pro-
duction of paper documents.
Third, whereas the current rule requires the department delegate
to direct the project sponsor to prepare an EIS if the need for
one becomes apparent during the environmental study phase,
the changes require such a direction if the need for an EIS be-
comes apparent at any time before the issuance of a FONSI.
This makes more sense, because it is possible that the need for
an EIS might not become apparent until after the environmental
studies are concluded.
Finally, the changes contain a revised explanation of a finding of
no significant impact (FONSI). The amended rule explains that a
FONSI is not required to repeat the information contained in the
EA and other environmental documents, but instead can incor-
porate that information by reference.
Amendments to 2.84, Environmental Impact Statements, al-
low the use of errata sheets to a draft environmental impact
statement (DEIS) rather than requiring the preparation of a final
environmental impact statement (FEIS) under specified circum-
stances. The changes further allow the FEIS and record of deci-
sion (ROD) to be prepared as a single document under specified
circumstances. These revisions, which are intended to minimize
the unnecessary production of paper documents, are based on
Section 1319 of MAP-21.
Changes to 2.84 require an EIS to include an evaluation of rea-
sonable alternatives, but not "all" reasonable alternatives. The
department believes it is neither necessary nor practical to evalu-
ate the impacts of every conceivable alternative and permutation
thereof that may exist for a given transportation project.
Changes to 2.84 contain a revised definition of "preliminary de-
sign." The purpose of this revision is to conform the department's
definition with that in FHWA's design-build rules, at 23 C.F.R.
636.103, which is the definition referenced by FHWA in its guid-38 TexReg 8790 December 6, 2013 Texas Register
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Texas. Secretary of State. Texas Register, Volume 38, Number 49, Pages 8721-8970, December 6, 2013, periodical, December 6, 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth379983/m1/70/: accessed May 4, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.