Current through Reg. 49, No. 12; March 22, 2024
(a)
In addition to the requirements of §
367.5
and §
367.6
of this chapter, if the funds provided by the board will be used for
construction of a conservation project which will require surface or subsurface
disturbance of the soil or alter the existing vegetation, the applicant shall
conduct an environmental assessment in compliance with this section. The
purpose of this section is to provide the executive administrator with
sufficient information to inform the board whether a proposed project has been
adequately reviewed by the regulatory agencies and whether such review provides
a reasonable level of certainty that the project will comply with state and
federal environmental regulations.
(b) Definition of terms. In this section, the
following words and terms shall have the following meanings, unless the context
clearly indicates otherwise.
(1)
Environmental regulation--The acts, statutes, or policies listed in subsection
(c)(1) of this section and the acts, statutes, or policies identified by the
executive administrator pursuant to subsection (c)(2) of this
section.
(2) Regulatory agency--The
governmental agency with the jurisdiction to review compliance with or to
enforce an environmental regulation.
(3) Preliminary project information--The
information submitted by an applicant to the executive administrator pursuant
to subsection (e) of this section.
(4) Affected environmental regulation--An
environmental regulation with which a proposed project potentially may not
conform as determined by the executive administrator under this section after
reviewing the preliminary project information or the environmental assessment
document, if any.
(5) Unaffected
environmental regulation--An environmental regulation with which a proposed
project will likely conform as determined by the executive administrator under
this section after reviewing the preliminary project information or the
environmental assessment document, if any.
(c) Applicable environmental regulations.
(1) Uniform requirements. Prior to commitment
of funds, the proposed project shall be coordinated, to the extent appropriate
under the three-level review of subsection (f) of this section, with the
regulatory agencies to determine the degree of compliance with the following:
(A) Texas Antiquities Code as administered by
the Texas Historical Commission;
(B) Federal Endangered Species Act as
administered by the United States Fish and Wildlife Service;
(C) resource protection under the Texas Parks
and Wildlife Code and Chapter 57 of this title (relating to Fisheries), as
administered by the Texas Parks and Wildlife Department; and
(D) Clean Water Act, §404 and Rivers and
Harbors Act, §10 as administered by the United States Department of the
Army, Corps of Engineers.
(2) Conditional requirements. Proposed
projects under certain circumstances may impact other environmental acts,
statutes, or policies requiring additional coordination, to the extent
appropriate under subsection (f) of this section. The executive administrator
may require an applicant to perform such additional coordination for the
following environmental regulations:
(A)
Migratory Bird Treaty Act as administered by the United States Fish and
Wildlife Service;
(B) National
Flood Insurance Act of 1968 as administered by the local floodplain protection
manager;
(C) state land easements
under Texas Natural Resources Code, Chapter 51, as administered by the Texas
General Land Office;
(D) parks and
recreational lands pursuant to the Texas Parks and Wildlife Code, Chapter
26;
(E) marl, sand, gravel, shell,
and mudshell permits under the Texas Parks and Wildlife Code, Chapter 86, and
Chapter 57 of this title as administered by the Texas Parks and Wildlife
Department; and
(F) any other act,
statute, or policies deemed applicable by the executive
administrator.
(d) Filing of assessment or statement. If an
agency of the state or federal government prepares or requires an environmental
assessment or an environmental impact statement to be prepared for
substantially the same project proposed for board financial assistance, then
the applicant shall file with the executive administrator the assessment or the
statement prepared or required by the state or federal government, and a copy
of the state or federal agency's issued decision document or permit in lieu of
the information or environmental assessment prepared in accordance with
subsections (e) or (f) of this section. Nothing herein shall be construed to
require an applicant to prepare an environmental assessment when the
information required under this section is currently available in an
environmental assessment, environmental impact statement, or other documents
prepared in connection with the same project.
(e) Preliminary project information. Prior to
or concurrently with the submission of an application, the applicant shall
submit the following information:
(1) a
written description of the proposed project;
(2) a map of sufficient detail to accurately
depict the location of each project element; and
(3) preliminary data on any known
environmental, social, and permitting issues which may affect the alternatives
considered for implementation of the project or which may impact the existing
environment in a manner that is the subject of any environmental
regulation.
(f)
Environmental review. Based on the preliminary project information and any
information readily available to the executive administrator, the executive
administrator shall require the applicant to comply with the provisions of this
subsection for either categorical exclusion review, mid-level review, or full
review depending on the complexity of the project and its environmental
impacts. Upon submission by the applicant of the information required by this
subsection, the executive administrator shall summarize all relevant
environmental data and any regulatory agency comments and public comments
received regarding the proposed project in a memorandum. Such memorandum shall
include a finding regarding the proposed project's compliance with the
environmental regulations and may include a recommendation on any avoidance,
minimization, or mitigation measures recommended by an regulatory agency
through this review process. Such memorandum shall be submitted to and
considered by the board with the application for financial assistance.
(1) Categorical exclusion. If the executive
administrator determines from the preliminary project information that the
proposed project would not appear to cause significant environmental impacts
under any environmental regulation, the executive administrator shall notify
all regulatory agencies of the executive administrator's intent to exclude the
proposed project from further environmental review. Unless an objection is
received from any regulatory agency within 30 days after such notification is
sent by the executive administrator, the executive administrator shall notify
the applicant that the proposed project is categorically excluded from further
environmental review requirements.
(2) Mid-level review. If the executive
administrator determines from the proposed project information that the
proposed project would appear to cause only significant environmental impacts
which are limited in number or scope or which may be readily avoided,
minimized, or mitigated, the proposed project shall be excluded from further
review of unaffected environmental regulations while additional information for
adequate review of affected environmental regulations shall be required in
accordance with the following procedures.
(A)
The executive administrator shall:
(i) notify
the regulatory agencies administering the unaffected environmental regulations
of the executive administrator's intent to exclude the proposed project from
further review of the unaffected environmental regulations. Unless the
executive administrator receives objections to the intent to exclude the
project from review by such agency within 30 days after such notification is
sent, the executive administrator shall deem the proposed project as excluded
from further review of such unaffected environmental regulation; and
(ii) promptly notify the applicant of the
unaffected environmental regulations which shall be excluded from further
environmental review, the affected environmental regulations which shall
require further environmental review, and any further information required by
statute or the regulatory agencies administering the affected environmental
regulations for adequate environmental review.
(B) The applicant shall then choose between
one of the two following options and promptly notify the executive
administrator of the option selected:
(i) the
applicant shall coordinate with the regulatory agencies administering the
affected environmental regulations as identified pursuant to subparagraph
(A)(ii) of this paragraph, provide to the executive administrator copies of all
information submitted by the applicant to such regulatory agencies, provide to
the executive administrator copies of all documents received by the applicant
from such regulatory agencies regarding the proposed project and, if the
executive administrator has determined that it is an affected environmental
regulation, documentation establishing compliance with Texas Parks and Wildlife
Code, Chapter 26; or
(ii) the
applicant shall provide to the executive administrator the information required
by the regulatory agencies administering the affected environmental regulations
for their review and, if the executive administrator has determined that it is
an affected environmental regulation, documentation establishing compliance
with Texas Parks and Wildlife Code, Chapter 26 whereupon the executive
administrator shall coordinate the project review with such regulatory agencies
and provide to the applicant copies of all documents received from such
regulatory agencies regarding the proposed project.
(3) Full review. If the executive
administrator determines from the proposed project information that the
proposed project would appear to cause extensive significant impacts that are
not readily avoided, minimized, or mitigated or would appear to involve a
probable or known significant public controversy relating to environmental or
social impacts, the following procedure shall apply:
(A) the applicant shall prepare an
environmental assessment document which shall include all the information
required by the regulatory agencies for adequate review by such agencies, a
technical description of all the alternatives to the proposed project
considered by the applicant, and a discussion of the proposed project's impact
on environmental, social, and economic issues compared to such impacts of the
alternatives considered;
(B) upon
approval by the executive administrator of the environmental assessment
document, the executive administrator will provide notification regarding the
unaffected environmental regulations in accordance with the procedures under
paragraph (2)(A) of this subsection; and
(C) the applicant shall submit the approved
environmental assessment document to the regulatory agencies administering the
affected environmental regulations for review and comment and provide to the
executive administrator copies of all the documents received by the applicant
from the regulatory agencies regarding the proposed project and, if the
executive administrator has determined that it is an affected environmental
regulation, documentation establishing compliance with Texas Parks and Wildlife
Code, Chapter 26. Alternatively, the applicant may request that the executive
administrator submit the environmental assessment document to such agencies
and, upon completion of such coordination, the executive administrator shall
provide to the applicant copies of all documents received from such regulatory
agencies regarding the proposed project.
(4) Project change. If the project is changed
to include areas or issues that were previously unassessed, then the
environmental review process identified in this section shall be employed for
such unassessed areas or issues and the executive administrator shall determine
the appropriate level of review for such changed project.
(5) Review change. If, at any time prior to
the submission of an application to the board and upon reliable information,
the executive administrator determines that the level of review being performed
for a proposed project is inappropriate or that the determination that an
environmental regulation was an unaffected environmental regulation was
incorrect, the executive administrator shall promptly notify the applicant of
the required level of review under this section or of the affected
environmental regulation for which additional review is required.