2018 changes to txdot environmental review rules

2018 CHANGES TO TXDOT ENVIRONMENTAL REVIEW RULES Patrick Lee

TxDOT Environmental Affairs Division

2018 Changes to TxDOT Environmental Review Rules

43 Texas Administrative Code Chapter 2, “Environmental Review of

Transportation Projects”

Proposed rule changes published in Texas Register on June 8, 2018.

– One comment received (Texas Press Association)

Public hearing held on June 26, 2018.

– One commenter (Texas Press Association)

Texas Transportation Commission approved rule changes on August 30,

2018 (Minute Order No. 115300).

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Effective date of rule changes is September 19, 2018.

However, most of the public-involvement related changes need to be

implemented through updates to ENV’s Public Involvement Handbook, which

have to be approved by FHWA.

– See 23 CFR 771.111(h)(1), requiring each state to have “procedures

approved by the FHWA to carry out a public involvement/public hearing

program pursuant to 23 U.S.C. 128 and 139 and CEQ regulation.”

Until ENV issues an updated, FHWA-approved version of the Public

Involvement Handbook, district environmental staff should continue

following the procedures in the existing Handbook.

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See the Commission’s Minute Order No. 115300 for a full list and

explanation of all the changes.

This presentation covers the more substantive rule changes (about 24 total).

Rule changes are presented in no particular order (except that non-public

involvement-related changes are covered first).

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Rule Change #1

Revise Project Sponsor rule to clarify that a public entity that does qualify as a

project sponsor, but doesn’t want to be the official project sponsor, can still

prepare an environmental review document for a district’s use (§2.7).

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Rule Change #2

Repeal §2.12, Project Coordination.

Add a requirement in the Environmental Assessments rule to coordinate with

interested governmental entities (§2.83).

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Rule Change #3

Remove prohibition against disclosing drafts of environmental review

documents, because whether or not the department may withhold documents

is governed by the Texas Public Information Act (§2.14, §2.83).

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Rule Change #4

Clarify that it is generally the project sponsor’s responsibility to conduct

required coordination, but only if both the department and the entity with

whom coordination is being conducted agree (§§2.43, 2.83, and 2.84).

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Rule Change #5

Revise elements of technical review of an environmental review document to

not refer to “legal sufficiency” (§2.49).

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Rule Change #6

Revise Environmental Assessments rule to require that only “a summary” of

public involvement, rather than the actual public comments received, be

included within an environmental assessment (§2.83).

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Rule Change #7

Revise description of “finding of no significant impact” in Environmental

Assessments rule to say that it simply concludes no significant impact, rather

than “presenting the reasons why” no significant impact (§2.83).

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Rule Change #8

Revise applicability of Environmental Impact Statements rule to no longer say,

“… if the project is of a type for which an EIS is typically prepared” (§2.84).

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Rule Change #9

Repeal rule regarding Advance Acquisition of Right-of-Way (§2.131).

See Bill Hale Memo dated November 15, 2017 (will be incorporated into

ROW’s Right-of-Way Manual).

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Rule Change #10*

Change Meeting with Affected Property Owners (MAPO) rule to be a notice and

opportunity to comment for owners of real property from which right-of-way will

be required (§2.104).

MAPOs can still be held, just not required.

* This change will take effect when ENV issues an updated, FHWA-approved

version of the Public Involvement Handbook.

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Rule Change #10 (continued)*

Change Meeting with Affected Property Owners (MAPO) rule to be a notice and opportunity to comment for owners of real property from which right-of-way will be required (§2.104).

Triggers for notice and opportunity to comment:

– Acquisition of new right-of-way

– Added capacity (no longer an OPH trigger)

– Construction of a highway at a new location (no longer a PH trigger)

Rationale for moving added capacity and new location highway triggers – see Transportation Code sec. 203.022(a), which only requires notice and opportunity for comment for adjacent property owners and local governments/public officials for these types of projects.

* This change will take effect when ENV issues an updated, FHWA-approved version of the Public Involvement Handbook.

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Change Meeting with Affected Property Owners (MAPO) rule to be a notice and opportunity to comment for owners of real property from which right-of-way will be required (§2.104).

Notice and opportunity to comment provided to:

– Owners of real property that would be acquired

– Adjacent real property owners (added capacity or new location only)

– Affected local governments and public officials (added capacity or new location only)

If public meeting, opportunity for public hearing, or public hearing is held, and notice is provided to the above, then no need to do separate notice and opportunity to comment.


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Change Meeting with Affected Property Owners (MAPO) rule to be a notice and

opportunity to comment for owners of real property from which right-of-way will

be required (§2.104).

Notice and opportunity to comment will typically be mailed with a comment

deadline of 18 days after mail-out (technically 15-day comment period with

assumed receipt third day after mailing).

District staff will prepare a comment/response matrix, just like a public

meeting or hearing.

ENV will provide templates for both the mailed notice and the documentation

packet that will get uploaded to ECOS.



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Rule Change #11*

Revise Public Hearing and Opportunity for Public Hearing rules to require the

public hearing to be held or opportunity to be afforded after “preliminary”

location and design studies are prepared (§2.106 & §2.107).

This clarification was needed to avoid an interpretation that all location and

design studies must be completed before a hearing or opportunity for

hearing could be held.



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Rule Change #12*

Revise Public Hearing and Opportunity for Public Hearing rules to no longer

require that the documentation of categorical exclusion be approved for public

disclosure by the department delegate prior to holding the hearing or affording

the opportunity (§2.106 & §2.107).

We use a standardized form to make a CE determination now.

Although pre-existing rule did not explicitly say so, rule could be read to imply

that all tech reports must be finalized and approved prior to the hearing. But

districts should be able to hold a hearing on a CE even if tech reports are not

all complete.



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Rule Change #13*

Change notice period for an opportunity for public hearing from 30 days to 15 days (§2.106).*

Notice period for a public hearing was revised from 30 to 15 days in 2016.

However …

– For an FHWA project for which an EA is prepared, if no hearing is held, then notice of availability of the draft EA must be published in the newspaper and have a comment deadline of no less than 30 days – see 23 CFR 771.119(f).

– Typically, the notice of availability for a draft EA, and the notice of an opportunity for a hearing, are combined into a single notice.

– So, if you’re doing a combined notice of availability for the draft EA/notice of opportunity for hearing, then it’s got to have a 30-day comment period anyway (we clarified this in the notice of availability rule - §2.108).


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Rule Change #14*

Clarify that for mailed public hearing and opportunity for public hearing notices, notice is presumed to have been provided three days after the notice is mailed (§§2.106 & 2.107).*

Also, clarify that all required public notice methods (newspaper notice, additional outreach method, and notices mailed to adjacent landowners, public officials and others) must be done at least 15 days prior to the hearing or, in the case of an opportunity for public hearing, 15 days prior to the deadline for requesting a public hearing (§§2.106 & 2.107).*

Previous rule only explicitly required newspaper notice to be published 15/30 days prior (although it has been generally assumed that all the notices needed to happen 15/30 days prior).

Mailed notices really need to be mailed 18 days prior to the hearing/deadline for requesting a hearing.


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Rule Change #15*

Revise trigger for holding a hearing after an opportunity for public hearing to no

longer require a hearing if only one hearing request comes in, but instead only

if 10 or more requests come in (§§2.106 & 2.107).



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Rule Change #16*

Add requirement to hold a hearing when an agency with jurisdiction requests

one to be consistent with 40 CFR 1506.6(c)(2) (§2.107).



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Rule Change #17*

Revise provisions in Notice of Availability rule (§2.108) regarding sending

notices of availability to entities identified under §2.12 (which was repealed) to

instead require notices be sent to:

MPO

Other affected units of federal, state, and local government

Entities that previously requested to receive notice

Other entities with whom environmental review is being coordinated (but

TCEQ, THC, and TPWD are governed by those specific MOUs, not this rule)



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Rule Change #18*

Remove requirement to publish a record of decision in the Texas or Federal

Register (§2.108).



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Rule Change #19*

Revise rule about additional public participation required for project changes to require only notice and opportunity to comment, rather than opportunity for hearing (§2.109).

Rule implements a state statute, Transportation Code sec. 203.022(b):

– “The department shall by rule provide additional notice and opportunity for comment on a project described by Subsection (a) [added capacity or new location highway] if conditions relating to land use, traffic volumes, and traffic patterns have changed significantly since the project was originally subject to public review and comment.”

Our rule interprets statute as applying where project has already been cleared and then there are significantly changed conditions (before the project is constructed).

“Significantly” is subjective. Also, notice the “and.”


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Rule Change #20*

Revise rule about Additional Notice and Comment for Projects Affected by Significant Changes to state one of the triggers as “added capacity” rather than “the addition of one or more vehicular lanes to an existing highway” (§2.109)

Revise rule about Notice of Impending Construction to state one of the triggers as “added capacity” rather than “the addition of at least one travel lane” (§2.110)

Statute requiring these procedures (Transportation Code sec. 203.022) states the applicable trigger as “the addition of one or more vehicular lanes,” but instructs TxDOT to implement through rulemaking.

“Added capacity” clarification needed to avoid triggering requirements for mere turn lanes, auxiliary lanes, etc.

Recall that “added capacity” is the way the trigger is worded in the new notice and opportunity to comment rule (§2.104).


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Rule Change #21

Implement new Transportation Code, §203.023 by removing the “substantially

changes the layout or function” trigger in the Opportunity for Public Hearing

rule, and adding the following trigger to the Public Hearing rule: “a project that

substantially changes the layout or function of a connecting roadway or an

existing facility, including the addition of managed lanes, high-occupancy

vehicle lanes, bicycle lanes, bus lanes, and transit lanes.” (§§2.106 & 2.107)

This was incorporated into the Public Involvement Handbook in March of

2018, in order to implement newly enacted Transportation Code sec.

203.023.

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Rule Change #22

Add a new definition of “bicycle lane” – “A portion of a roadway that is

designated by striping, signing, or pavement markings for the exclusive use of

bicyclists” (§2.5).



203.023.

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Rule Change #23

Specify that a hearing is not triggered by the addition of a bike lane if:

– the pre-existing roadway already accommodated bicycles,

– the project only stripes non-continuous bike lanes approaching or through

intersections, driveways, or other conflict areas, or

– striping bicycle lanes not along, but across a roadway at an intersection to

allow continuation of bike lanes on perpendicular streets (2.107)



203.023.

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Rule Change #24

Specify that no Chapter 2 hearing is triggered by the addition of a bike lane if

the project was addressed in a local hearing held under 43 TAC 25.55 (2.107).

43 TAC 25.55, promulgated in 1995:

“(b) Local Hearing.

“(1) Opportunity for a hearing. Each district will annually provide an

opportunity for a public hearing on district transportation projects and

programs that might affect bicycle use.”

Just add an ECOS Journal entry indicating that the project was addressed in

a hearing held under 43 TAC 25.55, and note the date of the hearing.



203.023.

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Thank you!

For the complete rule package, see the Texas Transportation Commission’s

minute order:

Txdot.gov Inside TxDOT Texas Transportation Commission

Meetings August 30 Agenda Item 12.b. click on “MO”

Also, the complete rule package will be published in the Texas Register this

Friday (September 14).

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2018 changes to txdot environmental review rules

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