1. (a) Opportunity to make request.

   1. (1) An opportunity to request a public hearing will be given for a project that requires the acquisition of significant amounts of right of way, substantially changes the layout or function of the connecting roadways or of the facility being improved, adds capacity, has a measurable adverse impact on abutting real property, or otherwise causes a substantial social, economic, or environmental effect, or for which the project sponsor or department delegate determines it is in the public interest.
   2. (2) An opportunity to request a public hearing will be given for a project if the results of the environmental studies support a FONSI.
   3. (3) If a public hearing is not required under §2.109 of this subchapter (relating to Public Hearing), the project sponsor may afford an opportunity for public hearing as another form of public participation.
2. (b) When to provide opportunity. The opportunity to request a public hearing will be given after the department delegate determines the environmental review document or CE/BCE/PCE documentation is technically complete and approves it as a full-disclosure document suitable for public review.

3. (c) Procedural requirements.

   1. (1) The project sponsor will publish, at a minimum, two notices of the opportunity to request a public hearing in local newspapers having general circulation. If there is no local newspaper in the area affected by the project, the project sponsor will publish notice in a newspaper having general circulation in the area affected by the project.

      1. (A) The first notice will be published at least 30 days before the deadline set by the project sponsor for submission of written requests for holding a public hearing.
      2. (B) The second notice will be published not more than 20 or less than seven days before the deadline.
   2. (2) If a substantial portion of the population that will be affected by the project has limited English proficiency (LEP), the notices also must be published in the primary language of the LEP population in accordance with Presidential Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency.
   3. (3) The project sponsor also will mail notice of the opportunity to request a public hearing to landowners abutting the roadway, as identified by tax rolls, and to affected local governments and public officials.
   4. (4) No further action will be taken to hold a public hearing if at the end of the time set for affording an opportunity to request a public hearing no requests have been received or if the project sponsor has addressed the concerns of the persons requesting the public hearing. The project sponsor will submit a certification of the public participation process to this effect to the department delegate.
4. (d) Certification if no hearing held. If, after providing an opportunity for a public hearing, the project sponsor does not hold a public hearing, the project sponsor will submit to the department delegate an original certification of the public participation process signed by an authorized representative of the project sponsor containing a statement that the requirements of this section have been met.
5. (e) Exception. A project sponsor is not required to comply with this section if the project sponsor elects to hold a public hearing.

Source Note:The provisions of this §2.108 adopted to be effective April 16, 2012, 37 TexReg 1727.