(a) Applicability.
  (1) This section applies to a transportation project that the department delegate has not classified as a categorical exclusion and that does not clearly require the preparation of an EIS, or if the department delegate believes an EA would assist in determining the need for an EIS.
  (2) This section applies to a transportation project that is a state transportation project or an FHWA transportation project, except that subsection (i) of this section applies only if the project is an FHWA transportation project.
(b) Purpose and content.
  (1) An EA describes the purpose and need for the project, any alternatives considered, any mitigation measures that are to be incorporated into the project, and the extent of environmental impact, including direct, indirect, and cumulative impacts. The project sponsor will investigate environmental impacts and prepare an EA to determine the nature and extent of environmental impacts, and to provide full disclosure of project impacts to the public.
  (2) If, taking into account any mitigation measures or commitments documented in the EA, the EA shows that the environmental impacts are not significant, the EA will conclude with a FONSI. If, taking into account any mitigation measures or commitments documented in the EA, the EA shows that the impacts are significant, the EA will conclude that an EIS is required.
(c) Coordination. The project sponsor will coordinate with any governmental entities that have indicated interest in the project to advise them of basic project information and will take into consideration such an entity's input regarding social, economic, or environmental impacts, alternatives and measures that might mitigate adverse environmental impacts, and other environmental review and consultation requirements that should be performed concurrently with the EA. As provided in §2.43 of this chapter (relating to Project Sponsor Responsibilities), the project sponsor will conduct any required coordination only if both the department and the entity with whom coordination is being conducted agree. The project sponsor will include in the EA the results of coordination.
(d) Public participation. The project sponsor will conduct appropriate public participation in accordance with Subchapter E of this chapter (relating to public participation) and will include in the EA a summary of the results of public participation and the comments received. If changes resulting from public participation are minimal, the project sponsor may incorporate the results into the EA by appending errata sheets, rather than revising the EA as a whole.
(e) Organization of EA. To the maximum extent possible, an EA should summarize and incorporate by reference any separately prepared environmental reports supporting the EA's conclusions. If these reports are not included as appendices, the reports must be available for public inspection on request.
(f) Circulation of draft EA. The project sponsor will comply with §2.108 of this chapter (relating to Notice of Availability).
(g) Change in determination of impact. If the department delegate, taking into account any mitigation measures or commitments documented in the EA, determines at any point prior to the issuance of a FONSI that the project may have a significant impact on social, economic, or environmental concerns, the department delegate will direct the project sponsor to prepare an EIS.
(h) Preparation of FONSI.
  (1) Finding of no significant impact (FONSI) means a document that is issued by the department delegate that briefly concludes that, taking into account any mitigation measures or commitments documented in the EA, the transportation project will not have a significant effect on the human environment and, therefore, for which an environmental impact statement will not be prepared. To describe the impacts of the project, and to identify any mitigation measures or commitments that factor into the determination that impacts are not significant, a FONSI will reference the EA and any other environmental documents related to the FONSI rather than repeating the information contained in those documents within the body of the FONSI.
  (2) The department delegate will review the EA, any proposed mitigation measures, the results of project coordination, and if a public hearing was held, the documentation of public hearing required by §2.107 of this chapter (relating to Public Hearing). The department delegate, if appropriate, will present the decision in a written FONSI.
  (3) The project sponsor will give notice of availability of a FONSI in accordance with §2.108 of this chapter.
(i) FHWA transportation project. For an FHWA transportation project, in addition to the requirements of subsections (a) - (h) 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 an EA. If federal law, including FHWA's rules, conflicts with this chapter, federal law controls to the extent of the conflict. At the conclusion of the technical review, the department delegate will forward the environmental review document and any other relevant documentation to FHWA with an appropriate recommendation.

Source Note: The provisions of this §2.83 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