Chapter 3 - Public Participation
- What Does This Topic Include?
- Laws, Regulations and Guidance
- Public Involvement - An Overview
- Public Involvement During Specific Stages of the Project Delivery Process
- Native American Indian Tribes
- Civil Rights
- Public Controversy
- Public Hearings
- Joint Public Meetings and Hearings
- POST PAED Public Involvement
- TRB Committee on Public Participation in Transportation
Chapter 3 sets forth the legal requirements for public hearings and notices, describes the public participation process during project development and transportation planning, and discusses government-to-government relations between the federal government and recognized Native American Tribal governments. We have designed this chapter for maximum user flexibility. Whether you are interested in a specific legal requirement, a specific process, a topic of social or civil concern, or an overview, we hope that this structure will allow you to quickly and easily locate the pertinent information. Because public participation takes many forms, touches on many special interest concerns, is applicable throughout the project development process and is covered under so many laws, regulations, and guidance documents, you may note some overlap or redundancies in content, links, or references throughout this chapter. It is our hope that this redundancy will aid, rather than hinder you, in finding the appropriate information in a timely manner.
- National Environmental Policy Act (NEPA) - It is the intent of NEPA that agencies encourage and facilitate public involvement in decisions which affect the quality of the human environment.
- Federal-aid Highway Act, 23 USC 128 - "Requires a public hearing for any Interstate System project or Federal-aid highway project involving the bypassing of or, going through any city, town, village, either incorporated or unincorporated."
- Freedom of Information Act
- Inter-modal Surface Transportation Efficiency Act (ISTEA) - The Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 extended the opportunity for public involvement into the transportation planning process.
- Transportation Efficiency Act for the 21st Century (TEA-21) - TEA-21 required development of a statewide public participation program.
- Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) - covers a variety of transportation issues, including NEPA Assignment under 23 USC 327, which assigns FHWA's responsibility for environmental coordination and consultation to the Department. For further guidance, see SER, Volume 1, Chapter 38, NEPA Assignment.
- National Historic Preservation Act (NHPA) - Section 106 of the NHPA Act requires public participation in the identification and evaluation of historic resources, even if no historic properties are found within the Area of Potential Effect (APE). See also Environmental Handbook, Volume 2, Section 2-4.6.
- Civil Rights Act of 1964, Title VI, (42 USC 2000), Section 601- Provides that (N)o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
- EO 11990, Protection of Wetlands (May 24, 1977) - Requires that the public have an opportunity to comment on proposed actions which may impact wetlands. Public notices for the proposed action should include reference to potential wetland impacts and invite public comments. Section 2(b) specifically requires opportunity for early public review of an EA where the proposed action involves new construction in a wetland.
- EO 11988, Floodplain Management (May 24, 1977) - Requires public review of EAs for plans or actions in floodplains, an opportunity for early public involvement, that notices for public hearings and availability of documents indicate if any of the alternatives would be located in a base floodplain, and that public hearing presentations identify all base floodplain encroachments.
- EO 12898, Environmental Justice (February 11, 1984) - Requires federal actions address environmental justice in minority population and low-income populations.
- EO 13166, Limited English Proficiency (August 11, 2000) - Requires federal agencies and their recipients to improve access to federally sponsored programs for persons with limited English proficiency.
- Council on Environmental Quality Regulations 40 CFR Part 1500 -The Council on Environmental Quality (CEQ) regulations on implementing NEPA require that agencies make diligent effort to involve the public in preparing and implementing their NEPA procedures. Parts 1500 through 1504 establishes general requirements regarding open public involvement from scoping through Final EIS, public availability of environmental documents, public notices, meetings and hearings, and response to public comments, and Part 1506.6 sets forth specific requirements on public involvement, including public involvement requirements for actions that may affect a Native American Indian reservation.
- FHWA Regulations for Implementing NEPA (23 CFR 771) - 23 CFR 771.105 sets forth general policy on public involvement. Section 771.111 establishes the general requirement for early public involvement, and prescribes what State public involvement/public hearing procedures must provide. 23 CFR 771.119 sets forth public involvement/public hearing requirements for EAs and FONSIs, and 23 CFR 771.123 sets forth public involvement/public hearing requirements for EISs.
- 36 CFR 800 Protection of Historic Properties
- 23 USC 128 Public Hearings for Federal-aid Highway Projects
- California Environmental Quality Act (CEQA) - Section 21000-21154 sets forth policy on public disclosures, early public involvement and public review of Categorical Exemptions, Regional Transportation Plans, Initial Studies/Negative Declarations, Mitigated Negative Declarations and Draft Environmental Impact Reports. CEQA also establishes policy on public availability of Notices of Determination and Exemption, public review periods, and response to public review comments.
for Implementation of the California Environmental Quality Act (Title 14 CCR
Sections 15000 et seq.)
- Sections 15000-15007 establish the general requirement for solicitation of, and response to public comments on Draft EIRs and NDs.
- Sections 15060-15065 addresses public availability of Notice of Exemptions, public review of agency plans and adopted standard and thresholds, and public controversy.
- Sections 15070-15075 address public review of Negative Declarations and Mitigated Negative Declarations, including content and posting requirements for Notices of Intent and Determination and public review timeframes.
- Sections 15080-15097 set forth public review requirements for Environmental Impact Reports (EIRs), including early public consultation (scoping), public review of Draft and Final EIRs, public hearings, and public availability of Notices of Determination.
- Section 15100-15112 addresses statute of limitation period versus public review periods.
- Sections 15120-15154 address public disclosure restrictions of archaeological sites and sacred lands and public availability of Technical Appendices and other documents incorporated by reference.
- Sections 15160 and 15170 address public review of Joint EIR/EIR documents.
- Sections 15200-15209 discuss electronic public notice, the focus of public review and public availability of public comments.
- Sections 15220-15228 address public involvement on projects also subject to the National Environmental Policy Act (NEPA).
- Caltrans Director's Policy, Title VI - The California State Department of Transportation under Title VI of the Civil Rights Act of 1964 and related statutes, ensures that no person in the state of California shall, on the grounds of race, color, sex and national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity it administers.
- Deputy Directive 91 (DD-91) Limited English Proficiency and Bilingual Services
- Caltrans Director's Policy #21: Environmental Justice - The intent of this policy is to ensure that the public including minority and low-income populations, are not discriminated against, treated unfairly, or made to suffer disproportionately from transportation decisions. The policy directs the Department to encourage the public to express its needs and concerns so that transportation decisions better reflect community values and interests.
- Deputy Directive (DD-63) Environmental Justice and Civil Rights in Transportation Decision-Making - Establishes, as the Department's policy on environmental justice and civil rights in transportation decision making, that the DOT will include the public, including minority and low-income populations, in transportation investment decision-making from the early planning stages through construction, operations and maintenance.
- Caltrans Director's Policy (DP-19): Working with Native American Communities
- Required Accessibility Statements for Publications, Gary R. Winters (August 21, 2001)
- CEQ Guidance Regarding NEPA Regulations - Memorandum for Heads of Federal Agencies, From: A Alan Hill, Chairman, Council on Environmental Quality, Re: Guidance Regarding NEPA Regulations. The purpose of this document is to provide the Council's guidance on various ways to carry out activities under the regulations, including but not limited to public involvement during the scoping process, Joint Public Meetings and Hearings.
- CEQ Memorandum on Scoping Guidance (April 30, 1981)
- FHWA Guidance Material on Public Involvement
- FHWA/FTA Interim Policy on Public Involvement (PDF) (150 KB)
- FHWA/FTA Public Involvement Techniques For Transportation Decision-Making (June 2015) - This booklet provides agencies with access to a wide variety of tools to involve the public in developing specific plans, programs, or projects through their public involvement processes. It discusses a wide variety of subjects, including Civic Advisory Committees, Public meetings/Hearings, Negotiation, Mediation, and Improving Meeting Attendance.
- Refer to the Caltrans Project Development Procedures Manual (PDPM), Chapter 11 and Caltrans Environmental Handbook Volume 4; Community Impact Assessment for detailed information on compliance with Title VI and for Community Involvement procedures.
- In conjunction with the National Environmental Policy Act of 1969 (NEPA), the Department extends opportunities for public involvement throughout the siting and design process for specific transportation projects.
Public participation is a cornerstone of the NEPA process (CEQ NEPA Regulations). It is the intent of NEPA that agencies encourage and facilitate public involvement in decisions which affect the quality of the human environment.
The NEPA process provides and encourages opportunities for interagency coordination and public involvement during scoping and public review of a draft EIS. Additionally, public hearings on environmental documents are often held if a project is controversial or when otherwise requested (40 CFR 1506.6[c]). In preparing EAs, federal agencies must involve environmental agencies, applicants, and the public to the extent practicable (40 CFR Sec. 1501.4 [b]).
The Federal Highway Administration (FHWA) and Federal Transit Authority (FTA) define the "public" broadly as including all individuals or groups who are potentially affected by transportation decisions. This includes anyone who resides in, has interest in, or does business in a given area which may be affected by transportation decisions. The "public" includes both individuals and organized groups.
The Federal Highway Administration (FHWA) has a published policy on public involvement. The goals of this policy include:
- To aggressively pursue improved communication and collaboration with our Federal, State and local partners in the transportation and environmental communities, including other modal administrations within the USDOT.
- Seek new partnerships with tribal governments, businesses, transportation and environmental interest groups, resource and regulatory agencies, affected neighborhoods, and the public.
- Ensure that those historically under-served by the transportation system, including minority and low-income populations, are included in our outreach.
- Actively involve our partners and all affected parties in an open, cooperative, and collaborative process, beginning at the earliest planning stages and continuing through project development, construction, and operations.
- Ensure the development of comprehensive, cooperative public involvement programs during statewide and metropolitan planning and project development activities.
The Intermodal Surface Transportation Efficiency Act Of 1991 (ISTEA) specifically identifies various segments of the public and the transportation industry that must be given the opportunity to participate, including "citizens, affected public agencies, representatives of transportation agency employees, other affected employee representatives, private providers of transportation and other interested parties" (e.g., 23 USC 134[h]).
23 USC 139 requires:
- Involvement of the public in defining the purpose and need of a project.
- Involvement of the public in developing the range of alternatives for a project.
- The development of a public participation coordination plan.
For a definition and additional information on scoping and its role in public participation please refer to Chapter 6 of the SER
In 1991, the ISTEA extended the opportunity for public involvement into the transportation planning process.
CEQA Guidelines Section 15175 establishes the requirement for an EIR for a Regional Transportation Plan (RTP). Whether an EIR or a Master EIR is prepared in support of the RTP, the Lead Agency (the Department, Metropolitan Planning Organization [MPO] or Regional Transportation Planning Agency [RTPA]) shall provide for public availability of the EIR and RTP consistent with the requirements set forth in CEQA Guidelines Section 15087.
The Department and the MPO shall ensure active involvement by Indian tribal governments, if applicable, in statewide metropolitan planning and programming.
Refer also to the Project Development Procedures Manual, Chapter 22.
The Project Development Team (PDT) is responsible for developing a community involvement plan for informal meetings and contacts with potentially interested parties. For information regarding whom to contact, size of groups, details of presentation, how to make contact, etc. please refer to the project communication plan as described in the Project Communication Handbook (PDF, 10 MB) or the project public participation plan if available.
The Local Agency is responsible for consulting with interested agencies (LAPM Chapter 6, Section 6.4) and for considering whether there is substantial public interest in the project.
Chapter 12, Section 3, Article 1 of the Caltrans Project Development Procedures Manual (PDPM) discusses concurrent public availability of the Project Report and Environmental Document.
Scoping Process (CEQ Guidance)
While there is no formal scoping requirements for an EA, the CEQ regulations mandate that federal agencies must involve environmental agencies, applicants and the public to the extent practicable in the EA process (40 CFR 1501.4(b)). Informal consultation is important in anticipating issues or concerns to state and federal agencies and the public.
NEPA encourages public participation. However, because there is no formal scoping requirement for an EA the degree of public participation and the means of soliciting public input are determined on a case specific basis, taking into consideration the results of public participation efforts at the planning and programming stages, the degree of public interest or controversy .Where there is potential for public controversy informal environmental scoping may be of value in defining environmental impacts, alternatives and issues of concern to the community. Executive Order 11990 section 2(b) specifically requires opportunity for early public review of an EA where the proposed action involves new construction in a wetland and Executive Order 11988 similar requires public review of EAs for plans and actions in floodplains. For additional information on public participation requirements of Section 106 see the Environmental Handbook Vol. II, Chapter 2, section 2-4. Refer to 23 CFR 771.119(c)(d)(e)(f)(h) for additional information regarding public availability of an EA.
Refer to SER Chapter 31, for information regarding and public review of a FONSI and Final EA. A sample Notice of Availability of an EA and of a FONSI are available in Chapter 31 of the SER.
NEPA Section 102[c] and 23 CFR 771.123(g) requires EISs be made available to the public. Costs associated with the public availability of EISs subject to the Freedom of Information Act, 5 USC 552; 40 CFR 1506.6f.
For information on public involvement during project construction, refer to the Caltrans Construction Manual, Chapter 1, Section 1-2.
Caltrans Deputy Directive (DD-63) establishes, as the Department's policy on environmental justice and civil rights in transportation decision making, that the USDOT will include the public, including minority and low-income populations, in transportation investment decision-making from the early planning stages through construction, operations and maintenance.
In cases where an action may occur on or affect an Indian reservation, the Council on Environmental Quality (CEQ) regulations require public notices of NEPA-related hearings, public meetings, and the availability of environmental documents sent to Indian tribes 40 CFR 1506.6(3). Refer also to CEQ Guidance on Environmental Justice, 36 CFR 800.
The attendance and concerns of minority, disadvantaged, and low mobility groups, at public involvement meetings and hearings, must be carefully documented to comply with Title VI of the Civil Rights Act of 1964. A Memorandum to File should be written for each formal contact. The memo should cover such items as where the meeting was held, who initiated the meeting, how attendees were notified, who attended the meeting (by agency, organization, or group, content of presentations, questions and responses, conclusions drawn, etc.
Refer also to the Caltrans Project Development Procedures Manual, Chapter 22.
The EIS Summary shall stress areas of controversy and issues raised by the public (Sec. 1502.12).
The Final EIS shall discuss any opposing view (Sec. 1502.9).
Conflicts between the proposed action and the Indian tribe shall be fully addressed. (See Sec. 1506.2(d) and Sec. 1502.16(c))
For more information and guidance on public controversy in environmental documents please refer to the annotated outlines for environmental documents in the SER.
The Caltrans Project Development Procedures Manual (PDPM) Chapter 11 sets forth Departmental policy and procedures regarding public hearings. The Manual provides explicit information and instructions regarding when public hearings are necessary, how to conduct a public hearing, Title VI compliance documentation, open forum versus formal hearing, coordination with DED availability, public notices and publicity, map showings, hearing room arrangements, presiding officers, briefings, presentations, handouts exhibits and interpreters, and hearings for local projects. Refer to the guidelines and samples for public hearing notices, PDPM Appendix HH.
Agencies that oversee projects subject to both NEPA and CEQA are encouraged to reduce duplication to the fullest extent possible in complying with these laws. This includes holding joint public meetings and hearings in addition to producing joint environmental documents.
Many permits also have a public involvement requirement which may include the permitting agency notifying the public of a proposed action and offering an opportunity to comment. Examples include the public notice process required for 404 permit actions and holding a public hearing prior to approving the permit such as required for most coastal development permits and some 401 permit actions. Other specialty permits may also require public hearings. In these instances it is important that the Department document its public participation efforts to the permitting agency as well as document any suggestions from interested parties were or were not incorporated into the project.
This committee has prepared a Directory of Transportation Agency Public Participation Officials, which provides contacts at the State DOT, MPO, and major transit provider level. The Directory is online at the website.