SECTION 363.14. Environmental Assessment

(a) Definitions of Terms. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Environmental regulation--The acts, statutes, or policies listed in subsection (c)(1) of this section and the acts, statutes, or policies identified by the executive administrator pursuant to subsection (c)(2) of this section.

(2) Regulatory agency--The governmental agency with the jurisdiction to review compliance with or to enforce an environmental regulation.

(3) Preliminary project information--The information submitted by an applicant to the executive administrator pursuant to subsection (e) of this section.

(4) Affected environmental regulation--An environmental regulation with which a proposed project potentially may not conform as determined by the executive administrator under this section after reviewing the preliminary project information or the environmental assessment document, if any.

(5) Unaffected environmental regulation--An environmental regulation with which a proposed project will likely conform as determined by the executive administrator under this section after reviewing the preliminary project information or the environmental assessment document, if any.

(b) Applicability and Purpose. This section applies to projects funded by the board under any of the programs identified in §363.1 of this title (relating to Scope of Subchapter). The purpose of this section is to provide the executive administrator with sufficient information to inform the board whether a proposed project has been adequately reviewed by the regulatory agencies and whether such review provides a reasonable level of certainty that the project will comply with the environmental regulations.

(c) Applicable Environmental Regulations.

(1) Uniform requirements. Prior to commitment of funds, the proposed project shall be coordinated, to the extent appropriate under the three-level review of subsection (f) of this section, with the regulatory agencies to determine the degree of compliance with the following:

(A) Texas Antiquities Code as administered by the Texas Historical Commission;

(B) Federal Endangered Species Act as administered by the United States Fish and Wildlife Service;

(C) resource protection under the Texas Parks and Wildlife Code and Chapter 57 of this title (relating to Fisheries), as administered by the Texas Parks and Wildlife Department; and

(D) Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act as administered by the United States Department of the Army, Corps of Engineers.

(2) Conditional requirements. Proposed projects under certain circumstances may impact other environmental acts, statutes, or policies requiring additional coordination, to the extent appropriate under subsection (f) of this section. The executive administrator may require an applicant to perform such additional coordination for the following environmental regulations:

(A) Migratory Bird Treaty Act as administered by the United States Fish and Wildlife Service;

(B) National Flood Insurance Act of 1968 as administered by the local floodplain protection manager;

(C) state land easements under Texas Natural Resources Code, Chapter 51, as administered by the Texas General Land Office;

(D) parks and recreational lands pursuant to the Texas Parks and Wildlife Code, Chapter 26;

(E) marl, sand, gravel, shell, and mudshell permits under the Texas Parks and Wildlife Code, Chapter 86, and Chapter 57 of this title as administered by the Texas Parks and Wildlife Department; and

(F) any other act, statute, or policies deemed applicable by the executive administrator.

(d) Filing of Assessment or Statement. If an agency of the state or federal government prepares or requires an environmental assessment or an environmental impact statement to be prepared for substantially the same project proposed for board financial assistance, then the applicant shall file with the executive administrator the assessment or the statement prepared or required by the state or federal government, and a copy of the state or federal agency's issued decision document or permit in lieu of the information or environmental assessment prepared in accordance with subsections (e) or (f) of this section. Nothing herein shall be construed to require an applicant to prepare an environmental assessment when the information required under this section is currently available in an environmental assessment, environmental impact statement, or other documents prepared in connection with the same project.

(e) Preliminary Project Information. Prior to or concurrently with the submission of an application, the applicant shall submit the information set forth in this section to enable the executive administrator to determine the level of review for the proposed project. Information submitted pursuant to and sufficient to comply with §363.16(d) of this title (relating to Pre-design Funding Option) shall be sufficient to comply with this provision. The applicant shall submit:

(1) a written description of the proposed project;

(2) a map of sufficient detail to accurately depict the location of each project element; and

(3) preliminary data on any known environmental, social, and permitting issues which may affect the alternatives considered for implementation of the project or which may impact the existing environment in a manner that is the subject of any environmental regulation.

(f) Environmental Review. Based on the preliminary project information and any information readily available to the executive administrator, the executive administrator shall require the applicant to comply with the provisions of this subsection for either categorical exclusion review, mid-level review, or full review depending on the complexity of the project and its environmental impacts. Upon submission by the applicant of the information required by this subsection, the executive administrator shall summarize all relevant environmental data and any regulatory agency comments and public comments received regarding the proposed project in a memorandum. Such memorandum shall include a finding regarding the proposed project's compliance with the environmental regulations and may include a recommendation on any avoidance, minimization, or mitigation measures recommended by a regulatory agency through this review process. Such memorandum shall be submitted to and considered by the board with the application for financial assistance.

(1) Categorical Exclusion. If the executive administrator determines from the preliminary project information that the proposed project would not appear to cause significant environmental impacts under any environmental regulation, the executive administrator shall notify all regulatory agencies of the executive administrator's intent to exclude the proposed project from further environmental review. Unless an objection is received from any regulatory agency within 30 days after such notification is sent by the executive administrator, the executive administrator shall notify the applicant that the proposed project is categorically excluded from further environmental review requirements.

(2) Mid-level Review. If the executive administrator determines from the proposed project information that the proposed project would appear to cause only significant environmental impacts which are limited in number or scope or which may be readily avoided, minimized, or mitigated, the proposed project shall be excluded from further review of unaffected environmental regulations while additional information for adequate review of affected environmental regulations shall be required in accordance with the following procedures.

(A) The executive administrator shall:

(i) notify the regulatory agencies administering the unaffected environmental regulations of the executive administrator's intent to exclude the proposed project from further review of the unaffected environmental regulations. Unless the executive administrator receives objections to the intent to exclude the project from review by such agency within 30 days after such notification is sent, the executive administrator shall deem the proposed project as excluded from further review of such unaffected environmental regulation; and

(ii) promptly notify the applicant of the unaffected environmental regulations which shall be excluded from further environmental review, the affected environmental regulations which shall require further environmental review, and any further information required by statute or the regulatory agencies administering the affected environmental regulations for adequate environmental review.

(B) The applicant shall then choose between one of the two following options and promptly notify the executive administrator of the option selected.

(i) The applicant shall coordinate with the regulatory agencies administering the affected environmental regulations as identified pursuant to subparagraph (A)(ii) of this paragraph, provide to the executive administrator copies of all information submitted by the applicant to such regulatory agencies, provide to the executive administrator copies of all documents received by the applicant from such regulatory agencies regarding the proposed project and, if the executive administrator has determined that it is an affected environmental regulation, documentation establishing compliance with Texas Parks and Wildlife Code, Chapter 26.

(ii) The applicant shall provide to the executive administrator the information required by the regulatory agencies administering the affected environmental regulations for their review and, if the executive administrator has determined that it is an affected environmental regulation, documentation establishing compliance with Texas Parks and Wildlife Code, Chapter 26, whereupon the executive administrator shall coordinate the project review with such regulatory agencies and provide to the applicant copies of all documents received from such regulatory agencies regarding the proposed project.

(3) Full Review. If the executive administrator determines from the proposed project information that the proposed project would appear to cause extensive significant impacts that are not readily avoided, minimized, or mitigated or would appear to involve a probable or known significant public controversy relating to environmental or social impacts, the following procedure shall apply:

(A) the applicant shall prepare an environmental assessment document which shall include all the information required by the regulatory agencies for adequate review by such agencies, a technical description of all the alternatives to the proposed project considered by the applicant, and a discussion of the proposed project's impact on environmental, social, and economic issues compared to such impacts of the alternatives considered;

(B) upon approval by the executive administrator of the environmental assessment document, the executive administrator will provide notification regarding the unaffected environmental regulations in accordance with the procedures under paragraph (2)(A) of this subsection; and

(C) the applicant shall submit the approved environmental assessment document to the regulatory agencies administering the affected environmental regulations for review and comment and provide to the executive administrator copies of all the documents received by the applicant from the regulatory agencies regarding the proposed project and, if the executive administrator has determined that it is an affected environmental regulation, documentation establishing compliance with Texas Parks and Wildlife Code, Chapter 26. Alternatively, the applicant may request that the executive administrator submit the environmental assessment document to such agencies and, upon completion of such coordination, the executive administrator shall provide to the applicant copies of all documents received from such regulatory agencies regarding the proposed project.

(4) Project Change. If the project is changed to include areas or issues that were previously unassessed, then the environmental review process identified in this section shall be employed for such unassessed areas or issues and the executive administrator shall determine the appropriate level of review for such changed project.

(5) Review Change. If, at any time prior to the submission of an application to the board and upon reliable information, the executive administrator determines that the level of review being performed for a proposed project is inappropriate or that the determination that an environmental regulation was an unaffected environmental regulation was incorrect, the executive administrator shall promptly notify the applicant of the required level of review under this section or of the affected environmental regulation for which additional review is required.

Source Note: The provisions of this §363.14 adopted to be effective February 10, 1995, 20 TexReg 491; amended to be effective December 25, 2007, 32 TexReg 9721