(a) The project sponsor may prepare an environmental review document or documentation of categorical exclusion for a highway project only if the highway project is:
  (1) identified in the financially constrained portion of:
    (A) the approved state transportation improvement program; or
    (B) the approved unified transportation program; or
  (2) identified in a commission order as being eligible for participation under this subchapter or;
  (3) not required to be included in the State Transportation Improvement Program or the Unified Transportation Program under §16.103 or §16.105 of this title (relating to Statewide Transportation Improvement Program (STIP) and Unified Transportation Program (UTP), respectively).
(b) Notwithstanding subsection (a) of this section, a local government may prepare an environmental review document or documentation of categorical exclusion for a highway project that is not identified in a program or by the commission as described by subsection (a) of this section if:
  (1) the local government pays a fee in an amount established under §2.46 of this subchapter (relating to Optional Payment of Fee by Local Government); and
  (2) the department delegate designates the local government as the project sponsor under §2.47 of this subchapter (relating to Approval of Local Government as Project Sponsor).
(c) If a highway project is identified in the financially constrained portion of the approved state transportation improvement program or the approved unified transportation program on the date that the department delegate approves the notice submitted by a local government sponsor in accordance with §2.47 of this subchapter, it will be treated as being identified in the respective program for purposes of the department delegate's review under this subchapter even if it is later removed from the respective program.

Source Note: The provisions of this §2.42 adopted to be effective April 16, 2012, 37 TexReg 1727; amended to be effective April 16, 2014, 39 TexReg 2941