| (a) Applicability.
(1) This section applies to a transportation project
that is classified by the department delegate as a BCE or PCE because
the project is similar to past projects that did not involve significant
environmental impacts.
(2) This section applies to a state transportation
project or an FHWA transportation project, except that subsection
(f) of this section applies only if the project is an FHWA transportation
project.
(b) Approval for classification as BCE or PCE.
(1) The department delegate may determine that a transportation
project be processed as a BCE or PCE under this section if:
(A) the project is listed in subsection (c) or (d)
of this section;
(B) the project satisfies the restrictions on classification
for CEs set forth in §2.81(c) of this subchapter (relating to
Categorical Exclusions);
(C) the project satisfies the restrictions on classification
for BCEs and PCEs in subsection (e) of this section;
(D) the project does not take or use public land designated
and used as a park, recreation area, wildlife refuge, historic site,
or scientific area under Parks and Wildlife Code, Chapter 26;
(E) the project sponsor determined whether coordination
is required, and if necessary, has carried out the coordination;
(F) the project sponsor has determined whether there
is any controversy concerning the project, and if necessary, has carried
out appropriate public participation to address the controversy following
the requirements in §2.101 of this chapter (relating to Public
Participation for a Categorical Exclusion); and
(G) the project sponsor has determined whether public
participation is required under Transportation Code, §203.022(a),
and if necessary, has carried out the public participation.
(2) For projects listed in subsection (d) of this section,
the project sponsor will submit to the department delegate documentation
that is an environmental issues checklist showing compliance with
this section.
(3) The department delegate may group the processing
of several projects that are of the same kind.
(c) State transportation project and FHWA transportation
project BCEs. A state transportation project or FHWA transportation
project normally qualifies as a BCE if the project is:
(1) an activity that does not involve or lead directly
to construction, such as a planning or technical study, a grant for
a training or research program, a research activity, approval of a
unified work program and any findings required in the planning process,
approval of statewide programs, approval of project concepts, or engineering
to define the elements of a proposed action or alternatives so that
social, economic, and environmental effects can be assessed;
(2) approval of utility installations along or across
a transportation facility;
(3) construction of bicycle or pedestrian lanes, paths,
or facilities;
(4) an activity included in the state's "highway safety
plan";
(5) for FHWA transportation projects only, the transfer
of federal lands under 23 U.S.C. §317 when the subsequent action
is not an FHWA action;
(6) installation of noise barriers or alterations to
an existing publicly owned building to provide for noise reduction;
(7) landscaping;
(8) installation of fencing, signs, pavement markings,
small passenger shelters, traffic signals, or railroad warning devices
if no substantial land acquisition or traffic disruption will occur;
(9) emergency repairs;
(10) acquisition of scenic easements;
(11) for FHWA transportation projects only, determination
of payback under 23 C.F.R. Part 480 for property previously acquired
with federal-aid participation;
(12) improvements to an existing rest area or truck
weigh stations;
(13) a ridesharing activity;
(14) bus or rail car rehabilitation;
(15) alterations to a facility or vehicle to make it
accessible for elderly and handicapped persons;
(16) program administration, technical assistance,
or operating assistance to transit authorities to continue existing
service or increase service to meet routine changes in demand;
(17) the purchase of vehicles by the department if
the use of the vehicles can be accommodated by an existing facility
or by a new facility that itself is within a CE;
(18) track or rail bed maintenance and improvements
that is carried out within existing right-of-way;
(19) purchase and installation of operating or maintenance
equipment located within the transit facility and with no significant
impacts off the site;
(20) promulgation of rules, regulations, or directives;
(21) a project consisting of work classified as a seal
coat, overlay, resurfacing, rehabilitation, or restoration done within
existing right-of-way on an existing road and completely within the
footprint of existing base course, or within 10 feet of each side
of existing edge of pavement within previously disturbed right-of-way,
or within the flowlines of the ditches, whichever is greater;
(22) a highway traffic operation improvement project,
including the installation of ramp metering control devices and lighting;
or
(23) approval for disposal of excess right-of-way or
for joint or limited use of right-of-way if the proposed use does
not have significant adverse impacts.
(d) State transportation project BCEs and FHWA transportation
project PCEs. A state transportation project normally qualifies as
a BCE, and an FHWA transportation project normally qualifies as a
PCE, if the project is:
(1) the modernization of a highway by resurfacing,
restoration, rehabilitation, reconstruction, adding shoulders, or
adding auxiliary lanes, such as parking, weaving, turning, or climbing
lanes;
(2) a highway safety or traffic operations improvement
project, including the installation of ramp metering control devices
and lighting;
(3) bridge rehabilitation, reconstruction, or replacement
or the construction of grade separation to replace an existing at-grade
railroad crossing or a new grade separation at an existing intersection
for safety improvement if no additional capacity is included;
(4) a transportation corridor fringe parking facility;
(5) construction of a new truck weigh station or rest
area;
(6) construction of a new bus storage or maintenance
facility in an area used predominantly for industrial or transportation
purposes if the construction is not inconsistent with existing zoning
and is located on or near a street with adequate capacity to handle
anticipated bus and support vehicle traffic;
(7) approval for changes in access control;
(8) rehabilitation or reconstruction of an existing
rail or bus building and ancillary facility if only minor amounts
of additional land are required and there is not a substantial increase
in the number of users;
(9) construction of a bus transfer facility that is
an open area consisting of passenger shelters, boarding areas, kiosks,
and related street improvements if the facility is located in a commercial
area or other high activity center in which there is adequate street
capacity for projected bus traffic;
(10) construction of a rail storage or maintenance
facility in an area used predominantly for industrial or transportation
purposes if the construction is not inconsistent with existing zoning
and there is no significant noise impact on the surrounding community;
or
(11) a project that adds capacity by adding through
lanes on an existing highway within existing right-of-way in areas
that are outside the metropolitan planning organization (MPO) metropolitan
area boundary (MAB) for MPOs that are in attainment of air quality
standards, or outside the non-attainment or maintenance area boundaries
for those MPOs that do not meet air quality standards, but not if
transportation corridor preservation acquisition was done or if right-of-way
acquisition was done by hardship or donation or for protection of
an individual parcel.
(e) Restrictions on classification. The project must
satisfy the restrictions on designation for BCEs and PCEs in this
subsection.
(1) New right-of-way, other land acquisition, and displacements
are covered by this paragraph.
(A) The project may not involve the acquisition of
real property in the aggregate of more than the greater of six acres
per linear mile of the project or 30 acres, and of that total, not
more than 30 acres may be acquired for intersections or transportation
related facilities, such as a safety rest area, maintenance yard,
or border safety inspection facility.
(B) For FHWA transportation projects only, the action
will follow the requirements of the Uniform Relocation Act, 42 U.S.C. §4601,
et seq.
(C) No commercial or residential displacements may
result from the acquisitions.
(2) For FHWA transportation projects only, unless a
de minimis impact determination has been made in accordance with applicable
law, the project will not involve a use of properties protected by
Section 4(f) of the Department of Transportation Act, 49 U.S.C. §303.
Any de minimis actions will be received, processed and approved, if
appropriate, by FHWA before a project is allowed to be processed as
a BCE or PCE.
(3) The project may not have been determined by the
state historic preservation officer to have an adverse effect on any
property determined eligible for the National Register of Historic
Places.
(4) The project may not be subject to an individual
Section 408, Section 404, or Section 10 permit, or Nationwide Permit
23 issued by the United States Army Corps of Engineers.
(5) The project may not be subject to a Section 9 permit
issued by the United States Coast Guard (USCG). Further, any required
USCG advanced approval or lighting exemption concurrence must be received
before an action goes to letting.
(6) The project will not lead to a determination of
other than "no effect" or "may affect, not likely to adversely affect"
for federally listed resources under regulations implementing the
Endangered Species Act (16 U.S.C. §1531 et seq.). Federally listed
resources are defined as federally listed threatened or endangered
species, proposed threatened or endangered species, designated critical
habitat, and proposed designated critical habitat. Essential fish
habitat must meet the equivalent level of effect as applicable under
the laws and regulations governing that program.
(7) The project may not cause construction in, across,
or adjacent to the specific section of the Rio Grande River designated
as a component of the Rio Grande in the National System of Wild and
Scenic Rivers.
(8) The project may not involve known hazardous materials
impacts anticipated to adversely affect construction activities, and
will not involve the acquisition of known unresolved contaminated
sites where the department could reasonably expect to assume liability
for corrective action upon acquisition.
(9) The project must be consistent with the Coastal
Zone Management Plan as determined by the appropriate federal or state
agencies.
(10) The project must conform to all applicable laws,
regulations, implementation plans, or other applicable federal and
state air quality requirements under the federal and state Clean Air
Acts.
(f) FHWA transportation projects.
(1) For an FHWA transportation project, in addition
to subsections (a) - (e) of this section, the project sponsor and
department delegate must comply with any federal laws, including FHWA's
rules, applicable to the processing of the project as a BCE or PCE.
If the department has a programmatic agreement with FHWA regarding
the review and approval of categorically excluded projects, the department
delegate and project sponsor will comply with the terms of the agreement.
If federal law, including FHWA's rules, or a programmatic agreement
conflicts with this chapter, the federal law or programmatic agreement
controls to the extent of the conflict.
(2) A programmatic agreement may allow that FHWA's
approval is considered granted if the department delegate finds that
a project is within the conditions for approval for a project specified
in the agreement. If, however, a programmatic agreement requires that
approval be issued by FHWA, the department delegate will comply with
the processing requirements set forth in the programmatic agreement.
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