(a) Applicability. This section applies to a local government that proposes to be designated the project sponsor for a highway project and also proposes to pay to the department a fee to cover the cost to review an environmental review document or documentation of categorical exclusion.
(b) Effect of payment. Payment of a fee under this section allows a project sponsor that is a local government to prepare, and the department to review, an environmental review document or documentation of categorical exclusion for a highway project that does not meet the requirements of §2.42(a) of this subchapter (relating to Environmental Review Limited to Certain Projects). The department may not defer under §2.51 of this subchapter (relating to Deferral of Review) its review of an environmental review document or documentation of categorical exclusion for which a local government has paid a fee under this section.
(c) Determination of fee. The amount of the fee will be determined in accordance with this subsection.
  (1) The local government will indicate on its proposed project scope submitted to the department delegate under §2.44 of this subchapter (relating to Project Scope) whether it is requesting calculation of an optional fee.
  (2) If calculation of the fee is requested by a local government, the department delegate will determine the fee for the review of the environmental review document or documentation of categorical exclusion based on the department's estimate of the actual cost of reviewing the document.
  (3) The department delegate will provide the local government with written notice of the calculated fee not later than the date the department delegate provides its proposed project scope.
(d) Timing of payment. A local government must pay to the department any fee under this section before the department delegate may finally approve the project scope prepared under §2.44 of this subchapter.
(e) Recalculation of fee. The department will recalculate the fee if, at any time, there are changes to the project description or the project classification that significantly increase the department's actual cost of reviewing the environmental review document or documentation of categorical exclusion. The local government shall pay to the department any cost increases calculated under this subsection.
(f) Deposit and use. A fee received by the department under this section will be deposited in the state highway fund and used to pay costs incurred under this subchapter.
(g) Additional payment; return of excess funds. If the department determines that the actual cost of reviewing a document was more than the fee collected, the local government will submit the additional payment to the department. If the department determines that the fee collected is in excess of the actual cost of reviewing a document, the excess funds paid by the local government shall be returned.

Source Note: The provisions of this §2.46 adopted to be effective April 16, 2012, 37 TexReg 1727; amended to be effective April 16, 2014, 39 TexReg 2941