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OVERVIEW OF RECENT CHANGES TO TXDOT’S ENVIRONMENTAL REVIEW RULES Patrick Lee TxDOT Environmental Affairs Division
Overview of Recent Changes to TxDOT’s Environmental Review Rules
Why do we have rules?
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Where are the rules?
Texas Administrative Code, Title 43, Part 1, Chapter 2
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
A. General Provisions
C. Environmental Review Process for Highway Projects
D. Requirements for Classes of Projects
E. Public Participation
F. Requirements for Specific Types of Projects and Programs
G. MOU with the Texas Parks and Wildlife Department
H. MOU with the Texas Historical Commission
I. MOU with the Texas Commission on Environmental Quality
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Recent revisions
2012 - Mostly to implement 2011 legislation
2014 - Mostly to revise public participation rules
2016 - Miscellaneous changes on various subjects
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Timeline
March 31, 2016: Commission approval (proposed)
April 15, 2016: Texas Register (41 TexReg 2705)
May 16, 2016: Public comment deadline
June 30, 2016: Commission approval (final)
July 15, 2016: Texas Register (41 TexReg 5234)
July 20, 2016: Effective Date
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
So, what changed?
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Activities Outside the Right-of-Way
“Project-specific locations” or “PSLs”
Contractor borrow sites, staging areas, etc.
If outside the right-of-way, and not specified by TxDOT, then not part of transportation project for purposes of review under Chapter 2
Rule citation: §2.3(e)(1)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Relocations Outside the Right-of-Way
Displaced utilities, homes, businesses, etc.
If relocated outside of the right-of-way, then relocation not part of transportation project for purposes of review under Chapter 2
Rule citation: §2.3(e)(2)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Consultation Reevaluation vs. Documented Reevaluation
“Consultation” - internal conversation noted in the file –Changed circumstances clearly do not require
further analysis “Documented” - checklist form
–No FEIS within 3 years after DEIS, or major steps to advance project not taken within 3 years after FEIS
–Changed circumstances warrant further analysis/documentation
Rule citation: §§2.5, 2.50(a)(5), & 2.85(b)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Public Meeting/Hearing Documentation
No more “summary and analysis”
Instead, assemble “public meeting documentation” or “public hearing documentation”
Packet of documentation for internal, record-keeping purposes only
Rule citation: §§2.83(h)(2), 2.105(d), & 2.107(e)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Combined FEIS/ROD
When using combined FEIS/ROD approach:
–No more 30-day waiting period between FEIS and ROD
–No more separate notices of availability for FEIS and ROD (just one notice for FEIS/ROD
Rule citation: §§2.84(f)(2) & 2.108(c)(5)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
EIS Notices in Texas/Federal Register
Publish notice of intent, and notices of availability for DEIS and FEIS/ROD in either Texas Register or Federal Register, depending on whether project is state or federal
No rule requirement to publish in both Texas and Federal Register
Rule citation: §§2.102(b)&(c) & 2.108(c)(4)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Triggers for Holding a Public Meeting/Hearing Public meeting:
–Base decision on level of public concern, period (not just concern on “environmental” issues)
Public hearing: –Remove “high-profile project” trigger –Add trigger, “the department delegate determines it
is in the public interest” Rule citation: §§2.105(b)(1) & 2.107(b)(3)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Public Hearing Notice Deadline
15-day notice period, rather than 30
Rule citation: §2.107(c)&(d)(2)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Post-Hearing Comment Deadline
Comment deadline is 15 days after public hearing, regardless of whether hearing is for CE, EA or EIS
Rule citation: §2.107(d)(3)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Notice of Impending Construction
Signage in the right-of-way, mailed notice, printed notice distributed by hand, or notice via website (when web address previously provided)
Must be given after environmental review is complete, but before use of heavy equipment
Rule citation: §2.110
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Advance Acquisitions of Right-of-Way
TxDOT’s Right-of-Way Division approves advance acquisition using state funds only on a case-by-case basis, and only under very limited circumstances
When advance acquisition is determined appropriate by the Right-of-Way Division, ENV’s rules now require preparation of a due diligence report, rather than a CE analysis
Rule citation: §2.131
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
TxDOT Presence at Public Hearings
No more “department public hearing officer”
TxDOT employee must open a public hearing, and at least one employee must remain present throughout
Rule citation: §§2.5, 2.106(e), & 2.107(f)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
60-day Deadline for Decision on an EA
60 days after “date the public participation process concludes” What does that phrase mean? – If no hearing or public comments, then date project
sponsor confirms in writing that public participation is over
– If a hearing or public comments, then date project sponsor provides documentation of public hearing and a revised EA responsive to public comments
Rule citation: §2.50(a)(2)(B)(ii)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Newspaper Notice
Added requirement to publish in a newspaper a notice of availability:
– for an FEIS (FEIS/ROD)
– for a draft EA when no hearing is going to be held
Rule citation: §2.108(c)(3)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Hearing Requirements in Other Statutes
Removed from Chapter 2 rules: –Transportation Code §203.021 – bypass projects –Parks and Wildlife Code §§26.001 & 26.002 –
public parks, recreation areas, scientific areas, wildlife refuges, historic sites
–Parks and Wildlife Code §84.007 – land protected by agricultural conservation easements
Rule citation: §§2.1 & 2.107(b)(3)&(c)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Parks and Wildlife Road Projects
TxDOT work on Parks and Wildlife Roads (not on state highway system, owned and operated by TPWD):
–Not subject to review under Chapter 2
–TPWD provides TxDOT an environmental clearance certification indicating that all applicable federal and state laws pertaining to environmental procedures have been met
Rule citation: §2.3(b)(1)(C)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Categorical Exclusions
No project scope required for in-house CEs
Allow regulatory flexibility to clear certain types of projects as CEs without an individual “environmental issues checklist” (i.e., CE determination form) for each project
Rule citation: §§2.44(a) & 2.81(b)(2)&(4)
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Overview of Recent Changes to TxDOT’s Environmental Review Rules
Patrick.Lee@txdot.gov
(512) 416-2358
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