(a) Applicability.
  (1) This section applies to a transportation project that is classified by the department delegate as a CE. A CE is a category of actions that have been found to have no significant effect on the environment, individually or cumulatively.
  (2) This section applies to a transportation project that is a state transportation project or an FHWA transportation project, except that subsection (e) of this section applies only if the project is an FHWA transportation project.
  (3) This section does not apply to the purchase of an option to acquire real property, or to the exercise of an option or other early and advance acquisition of land.
(b) Approval for classification as CE.
  (1) If the project sponsor satisfies the requirements of this subsection the department delegate may approve the classification of a transportation project as a CE.
  (2) Except as provided in paragraph (4) of this subsection, the project sponsor will submit to the department delegate an environmental issues checklist, prepared electronically in the department's environmental database, showing compliance with the section. The checklist does not constitute an environmental review document. FHWA may require an environmental review document for one of its projects, in which case the project sponsor must submit to the department delegate a brief environmental review document discussing and analyzing the potential environmental impacts. If the department delegate determines that a transportation project qualifies as a CE, it will document that determination in the project file.
  (3) The environmental issues checklist must show that the project does not violate the restrictions in subsection (c) of this section and that significant environmental impacts will not result based on the results of an evaluation of the project.
  (4) The department's environmental affairs division may direct that certain types of projects meeting specified criteria be processed as CEs, without preparation of individual environmental issues checklists, by recording verification that the project meets the specified criteria.
(c) Restrictions on classification.
  (1) A CE project directly, indirectly, or cumulatively, may not:
    (A) induce significant impacts to planned growth or land use for the area;
    (B) cause any significant environmental impacts to any natural, cultural, recreational, historic, or other resource;
    (C) cause any significant impacts to air, noise, or water quality;
    (D) relocate significant numbers of people; or
    (E) cause significant impacts on travel patterns.
  (2) The CE action may not involve unusual circumstances such as:
    (A) significant environmental impacts;
    (B) substantial controversy on environmental grounds; or
    (C) inconsistencies with federal or state law.
(d) Categories of projects. For a state transportation project or an FHWA transportation project, the categories of projects listed at 23 C.F.R. §771.117(c) and (d) normally will qualify as categorical exclusions, unless unusual circumstances make the project ineligible for designation as a categorical exclusion under subsection (c) of this section. The categories of projects listed at 23 C.F.R. §771.117(c) and (d) are not the only types of projects that may qualify as categorical exclusions.
(e) FHWA transportation projects.
  (1) For an FHWA transportation project, in addition to subsections (a) - (d) of this section, the department delegate and project sponsor must comply with any federal laws, including FHWA's rules, applicable to the processing of the project as a CE.
  (2) If federal law, including FHWA's rules, or a programmatic agreement conflicts with this chapter, the federal law or programmatic agreement provision controls to the extent of the conflict.

Source Note: The provisions of this §2.81 adopted to be effective April 16, 2012, 37 TexReg 1727; amended to be effective April 16, 2014, 39 TexReg 2941; amended to be effective July 20, 2016, 41 TexReg 5234; amended to be effective September 19, 2018, 43 TexReg 5987