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Section 2: General Environmental Compliance Requirements

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Overview

Environmental compliance responsibilities vary depending on the scope of the project and the potential social, economic and environmental impacts. TxDOT’s NEPA and Project Development Toolkit web page details the process for environmental review and approval and contains templates and guidance for preparing environmental review documents and amendments.

The legal requirements for highway projects are different from the requirements for other transportation projects. The legal requirements for highway projects will vary based upon the project’s designation of the official “project sponsor”. The official project sponsor is the entity that accepts responsibility not only for preparing the environmental review document, but also performing related tasks, including preparing the project scope. Requirements for highway projects being developed by a formally designated local government (LG) project sponsor are different from the requirements for a project being developed by a LG that has not been formally designated as a LG project sponsor. LG sponsor highway projects have requirements that differ from TxDOT sponsor highway projects. Other conditions also affect legal requirements.

If the LG is going to perform (by its own forces or by consultants) the environmental phase of a transportation project, it is recommended that the LG has early coordination with the TxDOT district’s environmental coordinator (due to the complexity of environmental regulations and the wide range of potential requirements that may apply to any individual LG project). The district will request assistance from the TxDOT Environmental Affairs Division (ENV), as necessary, to properly identify environmental requirements for a proposed project. The LG and TxDOT will work collaboratively to develop a project scope representing a mutual understanding of applicable requirements, expectations for completed environmental work and a plan and schedule for addressing environmental requirements for the project. An environmental department delegate will be assigned to each project, and be responsible for certain approvals during project activities; the district office is considered the “department delegate” for CEs, and ENV for EAs/EISs. This role is discussed in more detail in Section 5.2.4.5 of the LGPM Guide.

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Environmental Permits, Issues and Commitments

Environmental concerns should be identified early in the project so any mitigation may be addressed and accurately reflected in the design documents using the appropriate environmental permits, issues and commitments (EPIC) form. EPICs are any permits, issues, coordination commitments or mitigation obligations necessary to address, offset or compensate for social, economic or environmental impacts of a project. These may include sole source aquifer coordination, waters of the U.S. permits, stormwater permits, traffic noise abatement, threatened or endangered species coordination, archeological and historical coordination, and any other mitigation or environmental commitments associated with the project. EPICs must be specified in the construction documents and will be monitored for compliance during the project and for a defined period of time after construction completion. A digital version of the standard EPIC form is available on TxDOT’s publication web page.

Federal Requirements

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  1. 23 CFR §635.309(j) – Requires the authorizing entity to make a determination that appropriate measures have been included in the bid documents to ensure conditions and commitments made to mitigate environmental harm are implemented.
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  2. 23 CFR §771.109(b) – Requires commitments made during the environmental process to be implemented.
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  3. 23 CFR §636.109 – For design-build projects, requires the request for proposals to address how environmental commitments and mitigation measures will be implemented.

State Requirements

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  1. 43 TAC §2.2 – Provides TxDOT’s environmental policy statement.
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  2. 43 TAC §2.3(b)(2) – Requires transportation projects using state funds to comply with applicable state and federal environmental laws.
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  3. 43 TAC §26.35 – Requires a regional mobility authority to agree to be responsible for implementing all environmental commitments for projects on the state highway system
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  4. 43 TAC §27.44(e) – Requires regional tollway authorities to comply with Texas Administrative Code, Title 43, Chapter 2, Subchapter C for projects on the state highway system.

Required Practices

More information on required environmental procedures and process are included in the LGPM Guide. In general, all projects must comply with TxDOT environmental policies and the EPICs must be included in design documents.

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State Letter of Authority

As discussed in detail in Chapter 2 – Project Initiation, the state letter of authority (SLOA) is a form that must be issued on all projects performed by the LG or its consultants. The first SLOA is required prior to initiating work on the project. The second SLOA is required prior to the acquisition of right of way or the accommodation of utilities. The third is required prior to advertising for bids for construction. In general, the first SLOA (during the Preliminary Engineering phase) typically provides authorization for initiation of environmental compliance activities. The LGPM Guide provides more information on the processes and procedures related to environmental compliance.

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National Environmental Policy Act

General

Public works projects are subject to state and federal laws, statutes, regulations and guidance. Environmental compliance for projects with federal funding occurs under the umbrella of the National Environmental Policy Act (NEPA). NEPA requires an agency to take a “hard look” at the environmental impacts of a project and document the extent to which a project will or will not have a significant environmental impact. Environmental compliance under state jurisdiction in Texas follows a process similar to NEPA requirements and procedures. TxDOT environmental compliance programs are administered by the Environmental Affairs Division (ENV), which provides an Environmental Compliance Toolkits web page.

Federal Requirements

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  1. 42 U.S.C. §§4321 et seq. – National Environmental Policy – Requires federal actions to consider projects’ environmental impacts before making a decision to construct. Includes requirement to consider what level of documentation is needed to support the decision.
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  2. 40 CFR Part 1500-1508 – Provides Council on Environmental Quality’s regulations for implementing NEPA.
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  3. 23 CFR Part 771 – Provides Federal Highway Administration’s (FHWA) regulations for implementing NEPA.
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  4. 23 U.S.C. §139, MAP-21 §1305 – Requires implementation of specified procedures for establishing the need and purpose, alternatives, evaluation methods and a coordination plan for projects requiring an environmental impact statement. Additional environmental requirements are contained throughout these regulations.
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  5. Memorandum of Understanding between the Federal Highway Administration and the Texas Department of Transportation Concerning State of Texas’ Participation in The Project Delivery Program Pursuant to 23 U.S.C. §327 – Assigns to TxDOT most of FHWA’s responsibilities under NEPA and most other environmental requirements.
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  6. 40 CFR Part 93 – Provides Environmental Protection Agency regulations implementing transportation conformity.
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  7. 23 CFR §450.220 – Provides FHWA regulations requiring project selection from the Statewide Transportation Improvement Program.

Guidance for these subjects and others can be found at the FHWA Environmental Review Toolkit website.

State Requirements

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  1. 43 TAC Chapter 2 – Specifies the general environmental requirements needed to obtain environmental approval from TxDOT.
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  2. Texas Transportation Code, Title 6, Roadways – Contains environmental requirements applying to specific project types scattered throughout Title 6.

Required Practices

The process for complying with NEPA is complex and is described in detail in the LGPM Guide and additional documents referenced in the Best Practices Workbook.

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