Chapter 8 — Public Hearings

Formal vs Open Forum — two valid ways to satisfy the requirement

Chapter 8 frames public hearings as the formal culmination of project and environmental information gathering — they happen during circulation of the draft environmental document, prior to commitment to a specific design alternative or location. But the chapter opens with a critical caveat: "Generally, the most productive interaction with the public and other agencies takes place through informal meetings, conferences, and direct correspondence rather than through formal public hearings." Public hearings are reserved for projects that meet specific triggers — not every Federal-aid project.

When a hearing is needed, the LPA may satisfy the requirement through one of two formats:

Formal Public Hearing. A structured meeting between project authorities and the public audience. A presiding officer has the project team explain the project; the audience, one at a time, responds with comments and questions. All activities are formally recorded and entered into a hearing record. The record is held open after the formal meeting for 10 to 30 days for additional written comments.

Open Forum Public Hearing. An open-meeting format similar to a map showing or project briefing. Individuals arrive at various times, receive a brief orientation, and are directed to project team members for one-on-one explanations. Comments and questions are recorded verbally or in writing. The less formal atmosphere "can contribute to a better understanding of the project features, provide for a more direct response to specific individual questions or concerns, and move toward the solution of problems."

Both formats occur during circulation of the draft environmental document — prior to making any commitment to a specific design alternative or location — and both require public notices and a hearing record.

The chapter directs LPAs to PDPM Chapter 11: Public Hearing for general concept and features of both types. A review of these PDPM sections may assist the LPA in deciding which type is most appropriate for its project.

The federal triggers — and what each NEPA class demands

Federal Regulations (40 CFR 1506.6(c)). The LPA must hold or sponsor public hearings or public meetings whenever appropriate or in accordance with statutory requirements. The criteria must include whether there is:

• Substantial environmental controversy concerning the proposed action,
• Substantial interest in holding the hearing, or
• A request for a hearing by another agency with jurisdiction over the action, supported by reasons why a hearing will be helpful.

The hearing necessity question is then differentiated by NEPA Class of Action:

The five EA hearing triggers (23 CFR 771.111(h)) — a hearing or opportunity for hearing must be provided for any Federal-aid project which:

1. Requires significant amounts of right of way,
2. Substantially changes the layout or functions of connecting roadways or the facility being improved,
3. Has a substantial adverse impact on abutting property,
4. Otherwise has a significant social, economic, environmental or other effect, or
5. For those projects that Caltrans (under NEPA Assignment) determines a public hearing is in the public interest.

The chapter directs to PDPM Chapter 11: Public Hearing for: when hearings are necessary, how to conduct them, Title VI compliance documentation, open forum vs formal, coordination with draft environmental document availability, public notices and publicity, map showings, hearing room arrangements, presiding officers, briefings, presentations, handouts, exhibits, interpreters, and hearings for local projects. Public hearing notice samples are in PDPM Appendix HH.

Exception: Compliance with the public hearing process is not required for emergency opening work on disaster assistance projects (LAPG Ch 11: Emergency Relief). This is the same DAF carve-out that applies to Field Review under Ch 7.

The Notice of Opportunity path — and what happens when only a few people respond

When there's reason to believe the project is noncontroversial and a hearing is unlikely to be requested either by the public or any agency, a Notice of Opportunity for a Public Hearing may be utilized rather than directly scheduling a hearing. This is the lighter-touch path.

The Notice of Opportunity informs the public that they have the right to request a hearing within a defined window. If no requests come in (or only a small number), the LPA proceeds without a formal hearing.

When only a small number of requests are received, it is permissible to:

1. Meet with the parties at a convenient time and location,
2. Explain the project,
3. Answer any questions.

These meetings must be very carefully documented and made a part of the project record. If the requesting party is satisfied, they may withdraw the request for a hearing in writing. If the requesting party does not wish to withdraw, a hearing must be held.

Notice content, timing, and Title VI/LEP requirements

Public notices inform the public of proposals and invite participation. Methods include:

• Paid public notice in a local newspaper
• Supplemental news releases and special paid notices
• Flyers or bulk rate circulars distributed to residents
• Notices on bulletin boards in public places — city halls, libraries, supermarkets
• Posters, brochures, flyers, FAQs related to Title VI public rights
• Television and radio
• Distribution through schools and service clubs
• Indication in the draft environmental document that a hearing will be held or a notice of opportunity will be published
• Electronic media — websites, email, blogs

40 CFR 1506.6(b) requires public notice of NEPA-related hearings, public meetings, and the availability of environmental documents to inform persons and agencies who may be interested or affected. This includes groups, agencies, or individuals who:

• Have requested notification, or
• By nature of their function, interest, or responsibility may be interested in or affected.

Notification for local-concern actions may include: notice to state and area-wide clearinghouses; notice to Indian tribes when effects occur on reservations; publication in local newspapers (general circulation, not legal papers); notice through other local media; notice to potentially interested community organizations including small business associations; publication in newsletters; direct mailing to owners and occupants of nearby affected property; posting on and off site in the project area.

Content of the Notice

Both the Notice of Public Hearing and the Notice of Opportunity for Public Hearing must include:

• Sufficient detail of the surrounding area to enable the reader to readily identify the proposal location
• An appropriate schematic map depicting the proposal limits. Alternative design features either displayed by schematic inserts or described. Indicate if any alternatives would be located in wetlands.
• A statement that project maps, drawings, the EA or draft EIS, and other pertinent information will be available for inspection and copying at the LPA's office or other convenient location
• A specific note that an open forum format will be used when this is the case

To ensure widespread project notification, the LPA must establish and maintain a list upon which any federal agency, local official, public advisory group or agency, civic association, community group, or individual may enroll to receive notices of proposals in the area specified.

Notice of Public Hearing — timing rules

The Notice of Public Hearing rules:

• Must be published at least twice in a newspaper having a general circulation in the vicinity of the proposal and in any newspaper having a substantial circulation in the area, including foreign language and community newspapers
• The first Notice must be published at least 30 days prior to the scheduled hearing
• The second Notice should be published approximately one week before the hearing
• Timing of additional publications is optional
• If a Draft EIS is to be considered at a public hearing, the agency must make the statement available to the public at least 15 days in advance of the hearing (40 CFR 1506.6(c)(2)), unless the purpose of the hearing is to provide information for the Draft EIS

Each Notice of Public Hearing must additionally specify:

• The date, time, and place of the hearing
• That tentative schedules for right of way and construction will be discussed
• That relocation assistance programs will be discussed
• That written statements and exhibits may be submitted up to a specified date at least ten (10) days after the hearing with the procedure for submissions

On projects of particular local interest or great complexity, the LPA may consider bulk-rate circulars in addition to published notices and may use electronic mail and websites. The LPA must furnish the DLAE with a clipping or legible copy (identify newspaper and date published) of the Notice of Public Hearing at the time of first publication. Copies of all notices must be incorporated into the hearing record.

A sample is shown in Exhibit 8-A: Sample Notice of Public Hearing.

Notice of Opportunity for Public Hearing

The Notice of Opportunity for Public Hearing must:

• Explain the procedure for requesting a public hearing
• Specify the deadline for requesting a hearing
• The deadline must not be less than 21 days after the date of publication of the first Notice, or less than 14 days after the date of publication of the second Notice

The LPA must furnish the DLAE with a clipping or legible copy of the Notice of Opportunity at the time of first publication. A sample is shown in Exhibit 8-B.

Cooperating with state and local agencies under 40 CFR 1506.2

The LPA must fully cooperate with state and other local agencies to reduce duplication between NEPA, state, and local requirements unless the agencies are specifically barred from doing so by some other law (40 CFR 1506.2). This procedure provides for concurrent compliance with public review requirements, including joint public hearings of both NEPA and CEQA.

If a joint NEPA and CEQA environmental document is being prepared for an LPA project, and the criteria for deciding whether to hold a hearing has been met (40 CFR 1506.6(c)), a combined public hearing should be considered.

When the hearing happens — relative to environmental document approval

40 CFR 1502.6(c)(2) states that if a Draft EIS is to be considered at a public hearing, the LPA must make the Draft EIS available to the public at least 15 days in advance (unless the purpose of the hearing is to provide information for preparing the Draft EIS).

The hard rule: Formal or open forum public hearings are held after the EA or Draft EIS has been approved for circulation by the Caltrans District Director and prior to commitment to any of the alternatives to be presented at the hearing.

This locates the hearing in a narrow window: after Caltrans's District Director has approved the environmental document for circulation, but before the LPA has committed to a specific alternative. Holding it earlier means the document isn't ready for public review; holding it later means the LPA has prejudged the alternatives, which defeats the purpose of public input.

Required announcements and presentation content

Public hearings are held at a place and time convenient for persons affected. The LPA arranges to have suitable personnel available to respond to questions. The LPA is responsible for successful completion of all hearing requirements.

A presiding officer must be identified for the hearing. If the hearing covers controversial issues, the LPA should consider selecting a neutral person, who has no interest in the project, to act as presiding officer.

Required announcements at each hearing

At each public hearing, it must be announced that:

1. The hearing is being held to present studies to date on the location and/or design features of the proposal, and to provide a forum for public discussion of the major features, including social, economic, and environmental effects.
2. The hearing is being held prior to making any commitment to the various alternatives being presented, and that no studies or plans will be finalized until the complete public record has been analyzed including data gathered at the hearing and received in response to the draft environmental document.
3. The final deadline for submitting written statements and exhibits will be no later than 10 days after the hearing or, for more complex or controversial proposals, a longer and clearly specified period. Written material should be submitted at the address given in the handout.
4. Subsequent to the hearing and prior to requesting approval, all data gathered at the hearing or submitted for the record will be available for inspection and copying at the LPA's office or other location.

Items to be covered in presentation / handouts

• A discussion of the local, state, and federal roles for developing the proposal
• A summary of coordination and interaction to date
• The major features of the proposal and alternatives thereto
• The location of any wetlands crossed by a project must be identified
• A discussion on the feasibility of providing a means of public access to any navigable river over which a new bridge is to be constructed
• A discussion on the requirements for California Transportation Commission approval of any proposed new connections to freeways, where applicable
• A discussion on tentative right of way requirements, the schedule of acquisition, the estimated number of families, businesses, and other concerns to be relocated, housing availability, and the relocation assistance program
• A discussion on the tentative time schedule for construction noting any significant items that may affect the schedule
• A discussion of any other items that may be informative because of the particular conditions of the proposal

What the record contains — and why every element matters

Whenever a formal or open forum public hearing is held, a Record of Public Hearing is prepared to provide documentation of the proceeding. The Record of Public Hearing includes:

• A title page
• A table of contents
• A resume of the hearing
• An index of speakers
• A verbatim transcript
• Reproductions of displays
• Documents submitted for the record
• Reproductions of publicity items (including public hearing notices)
• A list of invitations

For open forum hearings, the record must also include a synopsis of the comments, concerns, and questions discussed with the public but not entered into the formal verbatim transcript.

Copies of the Record of Public Hearing must be forwarded to the DLAE. Additional copies may be requested by the DLAE; requests for additional copies are normally made at the time of the hearing.

When the original hearing record is no longer valid

The findings and conclusions of the public hearing are valid only if the conditions surrounding the original hearing remain constant.

40 CFR 1502.9(c) requires that the LPA prepares supplements to either the draft or final EIS if:

• The agency makes substantial changes in the proposed action that are relevant to environmental concerns, or
• There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts (e.g., substantial unanticipated development in the area affected by the proposal).

A new public hearing or opportunity for a public hearing is required under either of the above scenarios.

The LPA is responsible for reassessing changes in project location and design features and changes in the surrounding area and must prepare, circulate, and file a supplement to an environmental impact statement in the same fashion (exclusive of scoping) as a draft and final statement, and schedule rehearing as necessary.

The procedural cost of rehearing is high — new notices, new 30-day lead time, new hearing, new record. This is the strongest argument for keeping post-hearing project changes minimal: changes that aren't strictly necessary may force you back into the rehearing process and add months to the schedule.

What the District Director's signature actually approves

The terminal note of Chapter 8 is short but important: "Caltrans District Director's approval of the final environmental document constitutes location and design approval for projects on the State Highway System."

This is more significant than it first reads. For on-SHS projects, the District Director's signature on the final environmental document — typically the FONSI or ROD — is the locked-in commitment to a specific location and design alternative. It's not a separate location-and-design approval step; the environmental approval itself carries that legal weight.

For off-SHS projects, this rule doesn't quite apply the same way — the LPA, as CEQA lead, separately makes the location-and-design commitment through its own governing body action (city council, board of supervisors). But the Caltrans-signed environmental document is still the federal authorization that unlocks final design under Ch 6.