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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