(a) A proposed project can be categorically excluded from a full environmental review if the proposed project:
  (1) fits within the category of action that is eligible for exclusion, as listed in subsection (b) of this section;
  (2) will not result in significant impacts on the quality of the human environment; and
  (3) does not involve extraordinary circumstances, as listed in subsection (d)(1) - (9) of this section.
(b) Projects that may be eligible for a categorical exclusion (CE) include the following actions on existing systems:
  (1) those that involve upgrades that are minor;
  (2) minor expansion of system capacity;
  (3) the rehabilitation, including functional replacement of the existing system and system components; and
  (4) the construction of new minor ancillary facilities located adjacent to or on the same property as existing facilities.
(c) Projects not eligible for a CE include:
  (1) projects that would otherwise be eligible for a CE but due to extraordinary circumstances, as listed in subsection (d)(1) - (9) of this section, are not eligible for a CE;
  (2) projects that involve new or relocated discharges to surface or ground water;
  (3) projects that will likely result in the substantial increase in the volume or the loading of a pollutant to the receiving water;
  (4) projects that will provide capacity to serve a population 30 percent greater than the existing population;
  (5) projects that are not supported by the state, or other regional growth plan or strategy; and
  (6) projects that directly or indirectly involve or relate to upgrading or extending infrastructure systems primarily for the purposes of future development.
(d) Extraordinary circumstances may become known at any time during the planning, design, or construction of a project and may cause the project to be ineligible for a CE. Extraordinary circumstances include, but are not limited to, the following known or expected impacts:
  (1) potentially significant environmental impacts on the quality of the human environment either individually or cumulatively over time;
  (2) disproportionally high and adverse human health or environmental effects on any community, including minority communities, low-income communities, or federally-recognized Indian tribal communities;
  (3) a significant effect on federal or state-listed threatened or endangered species or their critical habitat;
  (4) a significant effect on national or state natural landmarks or property with nationally significant or state historic, architectural, prehistoric, archeological, or cultural value;
  (5) a significant effect on environmentally important natural resource areas such as wetlands, floodplains, significant agricultural lands, aquifer recharge zones, coastal zones, barrier islands, wild and scenic rivers, and significant fish or wildlife habitat;
  (6) a significant adverse air quality effect;
  (7) a significant effect on the pattern and type of land use or growth and distribution of population including altering the character of existing residential areas, or may not be consistent with state or local government, or federally-recognized Indian tribe approved land use plans or federal land management plans;
  (8) significant public controversy about a potential environmental impact of the proposed project; and
  (9) conflict with federal, state, or local government, or federally-recognized Indian tribe environmental, resource protection, or land-use laws or regulations.
(e) Upon the discovery of extraordinary circumstances, the executive administrator may deny a CE or rescind an existing CE.
(f) The executive administrator shall review the information submitted by the Applicant and may request additional information as needed to complete the finding regarding the eligibility of a proposed project for a categorical exclusion.
(g) The Board's finding relating to a CE shall be subject to public notice, which shall be published either in a newspaper of general circulation in the county or counties of the affected community or on the agency's website and referenced in a public notice in a newspaper of general circulation in the county or counties of the affected community.

Source Note: The provisions of this §371.42 adopted to be effective August 4, 2010, 35 TexReg 6680; amended to be effective January 9, 2012, 36 TexReg 9336; amended to be effective July 7, 2015, 40 TexReg 4361; amended to be effective July 4, 2016, 41 TexReg 4844