Alaska Coastal Management Program. Juneau, AK:Office of the Governor, Division of Governmental Coordination,[1994] Coasts Alaska. Coastal zone management Alaska. Alaska Coastal Management Program HANDBOOK Compiled by: State of Alaska Office of the Governor Division of Governmental Coordination P.O. Box 110030 Juneau, AK 99811 (907)465-3562 Walter J. Hickel August 1994 Governor 3 6668 00003 3995 Introduction The Alaska Coastal Management Program (ACMP) Handbook provides agencies, project applicants, coastal districts, and the public with information relevant to the program. The document includes, Alaska statutes and regulations governing the ACMP, federal regulations relating to program development and federal consistency with approved state coastal management programs, the federal Coastal Zone Managment Act and other useful information. The ACMP was established by the Alaska Legislature in 1977. The Alaska Coastal Management Act (AS 46.40) provides legislative authority for the program. The Act was amended in 1994, adding two new sections, 46.40.094 and 46.40.096 and amending 46.40.100. The changes address petitions to the Alaska Coastal Policv Council and consistency determinations for phased uses and activities. In addition to AS 46.40, sections of AS 44.19 provide authority for the program. State regulations have been adopted for program. The Alaska Administrative Code, 6 AAC 50, describes how the State reviews projects for consistency with the ACMP. These regulations were adopted in 1984 and amended in 1990 and 1993. Also, 6 AAC-85 provides guidelines for the development or amendment of coastal management programs by local coastal resource districts. These regulations were originally adopted in 1978 with subsequent amendments over the years. The federal Coastal Zone Management Act of 1972 was amended in 1990. A summary explaining the amendments. As well as the Act are included in this booklet. Title 15 of the Code of Federal Regulations provides development and evaluation of state coastal management programs. Also. federal regulations provide direction to federal agencies conducting or supporting activities affecting the coastal zone. issuing permits for coastal projects. and consistency for Outer Continental Shelf (OCS) activities. For further information about the Alaska Coastal Management Program. please contact: Division of Governmental Coordination - P.O. Box 110030 Juneau. AK 99811-0030 (907) 465-3562 Library NOAA/ CCEH 1990 HOBSON AVE. CHAS. SC 29408-02623 Contents .Page Introduction ......................................... I A. Alaska Statute Title 44. Section 19 Office of Management and Budget ....................... B. Alaska Statute Title 44. Section 47 Department of Community and Regional Affairs ........... 9 C. Legislative Intent for Alaska Coastal Management Act .... 10 D. Alaska Statute Title 46. Section 40 Alaska Coastal Management Program ................... 12 E. Project Consistency with the Alaska Coastal Management Program Title 6 Alaska Administrative Code, Chapter 50 .............. 57 E Standards of the Alaska Coastal Management Program Title 6 Alaska Administrative Code, Chapter 80 ........... 50 G. Guidelines for District Coastal Management Program Development Title 6 Alaska Administrative Code, Chapter 85 ........... 68 H. Citations for Department Statutes and Regulations incorporated into the ACMP .......................... 84 1. Alaska Coastal Management Program Documents ........ 85 J. Map of Alaska's Inland Coastal Zone Boundary ......... 90 Map of Coastal District Boundaries .................... 91 lamb, NOW K. Index of State Attorney General Opinions and Memoranda ......................................... 92 Contents (c o n Vd) Page Summary of 1990 Amendment to the Coastal Zone Management Act of 1972 ............................. 97 M. Federal Coastal Zone Management Act of 1.972, as amended ....................................... 104 N. Title 15, Code of Federal Regulations, Chapter IX National Oceanic and Atmospheric Administration, Department of Commerce Table of Contents ................................... 124 Coastal Zone Management Program Development and Approval Regulations Title 15, Part 923 .................................... 126 AdIk IqW Review of Performance Title 15, Part 928 ..................................... 178 Federal Consistency with Approved Coastal Management Programs Title 15, Part 930 ..................................... 186 Coastal Zone Enhancement Grants Program -) 1 -1 Title 15, Part 9321 ..................................... - -) 0. Federal Licenses and Permits ........................ 221 19@ %61 H Amk qw A or Am. w 0 TITLE 44. STATE GOVERNMENT CHAPTER 19. OFFICE OF THE GOVERNOR Article 6. Office of Management and Budget Section Section 14 1. Alaska office of management and budget 144. Powers and duties of the director 142. Director 145. Functions and duties of the office 143. Personnel 152. Definitions Note: Only those sections of Article 6 related to the Alaska Coastal Management Program are reprinted here. Sec. 44.19.145. FUNCTIONS AND DUTIES OF THE OFFICE. (a) The office shall (1) provide technical assistance to the governor and the legislature in identifying long range,:,,oals and objectives for the P.3 state and its political subdivisions; (2) prepare and maintain a state comprehensive development plan; (3) provide information and assistance to state agencies to aid in governmental coordination and unity in the preparation of agency plans and programs, (4) reviev@- planning within state government as mav be necessarv for receipt of federal, state, or other funds; (5) participate with other couni ries, provinces, states, or subdivisions of them in international or interstate planning, and assist the state's local governments, governmental conferences, and councils in planning and coordinating their activities; (6) encourage educational and research programs that further state planning and development, and provide administrative and technical services for them; (7) publish such statistical information or other documentary material as will further the provsions and intent of As 44.19.141 - 44.19.152; 2 (8) assist the governor and the Department of Community and Regional Affairs in coordinating state agency activities that have an effect on the solution of local and regional development problems; (9) serve as a clearinghouse for information, data, and other materials that may be helpful or necessary to federal, state, or local governmental agencies in discharging their respectwe responsibilities or in obtaining federal or state financial or technical assistance; (10) review all proposals for the location of capital improvements by any state agency and advise and make recommendations concerning location of these capital improvements; (11) render, on behalf of the state, all federal consistency determinations and certifications authorized by 16 U.S.C. 1456 Federal (Sec. 307, Coastal Zone Management Act of 1972), and each Consistency conclusive state consistency determination when a project Reviews requires a permit, lease, or authorization from two or more state resource agencies. (b) The office shall, in carrying out its functions, consult with local, regional, state and federal officials, private groups and individuals, and with officials of other countries, provinces, and states, and may hold public hearings to obtain information for the purpose of carrying out the provisions of AS 44.19.141 - 44.19.152. (c) The governor may establish coordinating or advisory planning groups. (d) The office shall (1) coordinate its services and activities with those of other state departments and agencies to the fullest extent possible to avoid duplication; (2) prepare an integrated annual report on the long-range development program of the state and submit it to the governor for incorporation into the governor's report to the legislature; (3) cooperate with the University of Alaska and other appropriate public and private institutions in research and investigations. (§ 2 ch 103 SLA 1966; am § 2 ch 219 SLA 1970; am § 2 ch 60 SLA 1972; am § 8, 10 ch 200 SLA 1972; am § 5 ch 207 SLA 1975; am § 20 ch 63 SLA 1983; am § 1 ch 44 SLA 1990) 3 AMENDMENT NOTES: The 1990 amendment substituted "requires a permit, lease, or authorization from two or more state resource agencies" for "requires two or more state or federal permits, leases, or authorizations" at the end of paragraph (a)(11) and made grammatical changes. EDITOR NOTES: Section 3, ch. 44, SLA 1990 provides that the 1990 amendment to (a) of this section is retroactive to March 11, 1984. DECISIONS: Competitive sale of oil and gas development rights to offshore state land constituted a pro)ect requiring a review and finding by the Office of Management and Budget as to whether the project was consistent with the Alaska Coastal Management Program. Trustees for Alaska v. State., Dept. of Natural Resources, 795 P.2d 805 (Alaska 1990). Consistenc3@ determinations by Department of Natural Resources. The legislature has amended paragraph (a)(11) to permit the Department of Natural Resources to make consistency determinations pursuant to AS 46.40.010. Trustees for Alaska v. State, Dept. of Natural Resources, 847 P.2d 1061 (Alaska 1993). Consistencv determination-to-be in state's best interest. The Department of Natural Resources consistency determination is one section of its finding, made in accordance with AS 38.05.035(e), that a sale would serve the State's Ash, best interest. Trustees for Alaska v. State, 847 P.2d 1061 (Alaska 1993). .Consist.encl determinations to identifv hazarls. The Department of Natural Resources is to identify and report on known and, as to areas of high development potential, substantially possible areas of geographical hazards within the land for which it is making a consistency determination. Trustees for Alaska v. State, 847 P.2d 1061 Waska 1993). Sec. 44.19.152. DEFINITIONS. In AS 44.19.141 - 44.19.152, (1) "director" means the dire:tor of the office of management and budget. (2) "office" means the Alaska of,-ice of management and budget, (3) "render" means to coordinate and issue; (4) "resource agency," means (A) the Department of Environmental Conservation; 4 (B) the Department of Fish and Game; or (C) the Department of Natural Resources. 1 ch 219 SLA 1970; am 5 13 ch 207 SLA 1975; am § 21 ch 63 SLA 1983; am S 2 ch 44 SLA 1990) AMENDMENT NOTES: The 1990 amendment added paragraphs (3) and (4). EDITOR NOTES: Section 3, ch. 44, SLA 1990 provides that (3) and (4) of this section are retroactive to March 11, 1984. Article 7. Alas ka Coastal Policy Council Section 155. Alaska Coastal Policy Council 161. Duties of the Council 160. Powers of the Council 162. Council staff Sec. 44.19.155. ALASKA COASTAL POLICY lank COUNCIL. (a) There is created in the Office of the 1@qw Governor the Alaska Coastal Policy Council. The council consists of the following: (1) nine public members appointed by the governor from a list comprised of at least three names from each region, Public members nominated by the municipalities of each region; the nominees shall be the mayor or member of the assembly or council of a municipality; one public member shall be appointed from each of the following general regions: (A) northwest Alaska, including, generally, the area of the North Slope Borough and the Northwest Arctic regional educational attendance area; (B) Bering Straits, including, generally, the area of the Bering Straits regional educational attendance area; (C) southwest Alaska, including, generally, the area within the Lower Yukon, Lower Kuskokwim, Southwest, and Lake & Peninsula regional educational attendance areas and the Bristol Bay Borough; (D) Kodiak-Aleutians, including the area of the Kodiak Island Borough and the Aleutian, Adak and Pribilof regional educational attendance areas; (E) Upper Cook Inlet, including the Municipality of Anchorage and the Matanuska-Susitna Borough; 5 (F) Lower Cook Inlet, including, generally, the area within the Kenai Peninsula Borough; (G) Prince William Sound, including, generally, the area east of the Kenai Peninsula Borough to 141 W. longitude; (K northern Southeast Alaska, including the area southeast of 141 W. longitude and north of 57 N. latitude, including the entirety of the City and Borough of Sitka; and a) southern Southeast Alaska, including that portion of southeastern Alaska not contained within the area described in (H) of this paragraph (2) each of the following: (A) the director of the office of management and budget; State members (B) the commissioner of commerce and economic development; (C) the commissioner of community and regional affairs; (D) the commissioner of environmental conservation; (E) the commissioner of fish and game; (F) the commissioner of natural resources; and (G) the commissioner of transportation and public facilities. (b) Each public member appointed by the governor under (a)(1) of this section serves a term of two years and until a Term of office successor is appointed and qualified. A public member may be reappo Inted. (C) The council shall designate co-chairmen, one of whom shall be selected from among the public members appointed under (a)(1) of this section and one from among the members designated in (a)(2) of this section. (d) Each member of the council shall select one person to serve as a permanent alternate at meetings of the council. If a Permanent member of the council is unable to attend, the member shall Alternates advIse the alternate who may attend and act in the place of the member. The alternate for a public member appointed after July 9, 1978 under (a)(1) of this section shall, at the time of the alternate's designation and throughout the period of service as a permanent alternate, be the mayor or member of the assembiv or council of a municipalltv within the region from which the permanent member is appointed. The alternate for the director of the office of management and budget, serving under (a)(2)(A) of this section, shall be the director's designee within that office. The alternate fOr a designated member sei-ving under (a)(2)(B) - (G) of this section shall be a deputy 40 6 commissioner of the department or the director of a division in the department. The names of alternates shall be filed with the council. (e) Four public members and three designated members of the council constitute a quorum, but one or more of the Quorum members designated by the council may hold hearings. All decisions of the council shall be by a majority vote of the members present and voting. (f) Members of the council or their alternates are entitled to per them and travel expenses authorized by law for members of boards and commissions. (g) If an incumbent public member ceases to meet the qualifications prescribed in (a)(1) of this section for nomination to the council or if a vacancy exists among the public members for any other reason except for a vacancy due to the expiration of the term of a public member, the governor shall, within 30 days of the establishment of the vacancy by lack of qualification or other reason, make an appointment, to be immediately effective, for the unexpired portion of the term. Unexpired terms An appointment by the governor made under this subsection to fill an unexpired term of a public member shall comply with the requirements of (a) (1) of this section; however, the governor may appoint from qualified persons without soliciting from municipalities nominations of persons to fill the unexpired portion of the term. (§ 3 ch 84 SLA 1977; am E.O. No. 39, S 11 (1977); am § 4, 5 ch 129 SLA 1978; am § 22, 23 ch 63 SLA 1983; am § 30 ch 168 SLA 1990) AMENDMENT NOTES: The 1990 amendment, effective June 22, 1990, deleted an exception at the end of the first sentence in subsection (b) pertaining to the term of a public member first appointed. Sec. 44.19.160. POWERS OF THE COUNCIL. The council mav (1) app@ly for and accept grants, contributions, and appropriations, including application for and acceptance of federal funds that may become available for coastal planning and management; (2) contract for necessary services; (3) consult and cooperate with (A) persons, organizations, and groups, public or private, interested in, affected by, or concerned -,NIth coastal area planning and management; 7 (B) agents and officials of the coastal resource districts of the state, and federal and state agencies concerned with or having jurisdiction over coastal planning and management; (4) take any reasonable action necessary to carry out the provisions of AS 44.19.155 - 44.19.162. (§ 3 ch 84 SLA 1977) Sec. 44.19.161. DUTIES OF THE COUNCIL. In conformity with 16 U.S.C. 1451-1464 (Coastal Zone Management Act of 1972), as amended, the council shall (1) through the public hearing process and the recording of the minutes of the hearings, develoo guidelines and standards for the preparation of, and approve, in accordance with AS 46.40, the Alaska coastal management program; (2) establish continuing coordination among state agencies to facilitate the development and implementation of the Alaska coastal management program; in carrying out its duties under this paragraph, the council shall initiate an interagency program of comprehensive coastal resource planning for each geographic region described in AS 44.19.155(a)(1); (3) assure continued provision of data and information ddlkkL to coastal resource districts to carry out their planning and management functions under the program; (4) [Repealed July 1, 1994.] (§ 3 ch 84 SLA 1977; am § 35 ch 126 SLA 1994) Sec. 44.19.162. COUNCIL STAFF. The council shall use the staff of the office of coastal management within the office of management and budget in discharging its powers and duties. The coordinator of the office of coastal management, under the direction of the council co-chair who is selected from among the members designated in AS 44.19.155(a)(2), may contract with or employ personnel or consultants the coordinator considers necessary to carry out the powers and duties of the council. (§ 3 ch 84 SLA 1977; am § 24 ch 63 SLA 1983) 8 .dml@ -low B or ak- TITLE 44. STATE GOVERNMENT CHAPTER 47. DEPARTMENT OF COMMUNITY AND REGIONAL AFFAIRS Article 2. Planning Assistance Sec. 44.47.095. Planning assistance for development and maintenance of district coastal management program. The department shall conduct a program of research, training, and technical assistance to coastal resource districts necessary for the development and implementation of district coastal management programs under AS 46.40. The technical assistance shall include the direct granting to the coastal resource districts of a portion of any funds received by the state from the federal coastal zone management program, in amounts to be individually determined for each coastal resource district by the commissioner. State agencies shall assist the department in carrying out the purposes of this section. (§ 5 ch 84 SLA 1977) Cross references. For Alaska Coastal Policy Council, see AS 44.19.15-5 - 44.19.162; for le,,Islative findings and policy, see and 2, ch. 84, SLA 1977 in the Temporary and Special Acts. 9 c LAWS OF ALASKA 1977 Source Chapter No. OCS SCS CSHEB 342 84 AN ACT Relating to the management of the coastal resources of the state; and providing for an effective date. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: Section 1. LEGISLATIVE FINDINGS. The legislature finds that (1) the coastal area of the State is a distinct and valuable natural AOIL resource of concern to all the people of the state: (2) the demands upon the resources of the coastal area are significant, and will increase in the future; (3) the protection of the natural and scenic resources and the fostering of wise development of the zoastal area are of concern to present and future citizens of the state; (4) the capacity of the coastal area to withstand the demands upon it is limited; (5) the degree of planning and resource allocation which has occurred in the coastal area has often been motivated bv short-term considerations, unrelated to sound planning principles; and (6) in order to promote the public health and welfare, there is a critical need to engage in comprehensive land and water use planning in coastal areas and to establish the meaml by which a planning process and management program involving the several governments and areas of the unorganized borough having an interest in the coastal area may be effectively implemented. 10 Sec. 2. LEGISLATIVE POLICY. It is the policy of the state to (1) preserve, protect, develop, use, and, where necessary, restore or enhance the coastal resources of the state for this and succeeding generations; (2) encourage coordinated planning and decision making in the coastal area among levels of government and citizens engaging in or affected by activities involving the coastal resources of the state; (3) develop a management program which sets out policies, objectives, standards and procedures to guide and resolve conflicts among public and private activities involving the use of resources which have a direct and significant impact upon the coastal land and water of the state. (4) assure the participation of the public, local governments, and agencies of the state and federal governments in the development and implementation of a coastal management program; (5) utilize existing governmental structures and authorities, to the maximum extent feasible, to achieve the policies set out in this section; and (6) authorize and require state agencies to carry out their planning duties, powers and responsibilities and take actions authorized by law with respect to programs affecting the use of the resources of the coastal area in accordance with the policies set out in this section and the guidelines and standards adopted by the Alaska Coastal Policy Council under AS 46.35. IN %kh'. D TITLE 46. WATER, AIR, ENERGY, AND ENVIRONMENTAL CONSERVATION CHAPTER 40. THE ALASKA COASTAL MANAGEMENT PROGRAM Article 1. Development of Alaska Coastal Management Program Section Section 10. Development of Alaska coastal management 70. Standards for council review and approval program 80. Effective date of Alaska coastal management 20. Objectives program 30. Development of district coastal 90. Implementation of coastal management management programs programs 40. Duties of Alaska Coastal Policy Council 94. Consistency Determinations for Phased 50. Action and submission by coastal resource Uses and Activities districts 96. Consistency Reviews and Determinations 6 0. Review and approval by council 100. Compliance and enforcement Sec. 46.40.010. Development of Alaska coastal management programs. (a) The Alaska Coastal Policy Council established in AS 44.19.155 shall approve, in accordance with this chapter, the Alaska coastal management program. (b) The council may approve the Alaska coastal management program for a portion or portions of the coastal area before approving the complete program under (a) of this section. Portions of the program approved under this subsection shall be incorporated into the Alaska coastal management program. (c) The Alaska coastal management program shall be reviewed b-,- the council and, when appropriate, revised to (1) add newly approved d,,strict coastal management programs, or revisions and amendments to the Alaska coastal management program; (2) integrate newly approved district coastal management programs, or revisions and amendments of district coastal management programs, with existing approved programs and with plans developed by state agencies; (3) add new or revised state statutes, policies, regulations or other appropriate material; (4) review the effectiveness of implementation of 1 2 district coastal management programs; and (5) consider new information acquired by the state and coastal resource districts. (d) All reviews and revisions shall be in accordance with the and standards adopted by the council under AS gul 46.40.040. (S 4 ch 84 SLA 1977) ATTY GENERAL OPINION: The doctrine of federal preemption, derived from the supremacy clause of the United States Constitution, Article VI, clause 2, would not apply to state regulation of outer continental shelf activities in the coastal zone. May 12, 1980 Op. Att'y Gen. Reasonable restrictions on oil and gas activities embodied in a local coastal management plan, incorporated into the Alaska Coastal Management Program, would be enforceable against off-shore federal lessees. May 12, 1980 Op. Att'y Gen. Municipal authority to regulate oil and gas activities of federal lessees depends upon whether the leases are on-shore or off-shore. In the case of the former, the doctrine of federal preemption may prohibit local coastal zone ordinances from affecting any measure of control. In the case of the latter, local coastal management programs which are approved by the Alaska Coastal Policy Council and thus part of the Alaska Coastal Management Program will become one of the touchstones in the state consistency determination required by section 307(c)(3) of the Coastal Zone Management Act, 16 U.S.C. Sec. 1451 et seq. Mav 12, 1980 Op. Att'y Gen. A municipality enacting a local 'district coastal management program may restrict or exclude a use of state concern without falling afoul of the constitutional limitations in Alaska Const., art. X, Sec. 11 on the exercise' of municipal authority if that restriction or exclusion is reasonable, within the meaning of AS 46.40.070(c). May 12, 1980 Op. Att'v Gen. The Alaska Oil and Gas Conservation Act, AS 31.05.005 et seq., which mandates the conservation of oil and gas and prohibits their waste, would not be contravened by a local coastal management plan which comports vVith the Alaska Coastal Management Program. Mav 12, 1980 Op. AWN Gen. DECISIONS: CompetitiVe sale of oil and Fas develooment riahts to offshore state land constituted a project requiring a review and finding by the Office of Management and Budget as to whether the project was consistent with the Alaska Coastal Management Program. Trustees for Alaska %-. State, Dep't of Natural Resources, 795 P.2d 805 (Alaska 1990). ConsistencN, determinations by De2artment of Natural Resources. The legislature has amended AS 44.19.145 (a)(11) to permit the Department of Natural Resources to conduct ACMP consistency determinations, formerly under the strict pun,iew ot the Office of Management and Budget. Trustees for Alaska -,-. State, Dep't of Natural Resources, 847 P.2d 1061 (Alaska 1993). 13 ARTICLE NOTES: Collateral References.- 78 Am. Jur. 2d, Waters, Sec. 59-116, 375-438 5 C.J.S., Navigable Waters, Sec. 10-18, 20-132; 93 CJ.S., Waters, Sec. 71-85. Sec. 46.40.020. Objectives. The Alaska coastal management program shall be consistent with the following objectives: (1) the use, management, restoration and enhancement of the overall quality of the coastal environment; (2) the development of industrial or commercial enterprises which are consistent with the social, cultural, historic, economic and environmental interests of the people of the state; (3) the orderly, balanced utilization and protection of the resources of the coastal area consistent with sound conservation and sustained yield principles; (4) the management of coastal land and water uses in such a manner that, generally, those uses which are economically or physically dependent on a coastal location are given higher priority when compared to uses which do not economically or physically require a coastal location; (5) the protection and management of significant historic, cultural, natural and aesthetic values and natural systems or processes within the coastal area; (6) the prevention of damage to or degradation of land and water reserved for their natural values as a result of inconsistent land or water usages ad)acent to that land; (7) the recognition of the need for a continuing supply of energy to meet the requirements of the state and the contribution of a share of the state's resources to meet national energy needs; and (8) the full and fair evaluation of all demands on the land and water in the coastal area. (§ 4 ch 84 SLA 1977) DECISIONS: Archeological identification at initial sa@e staze. Furtherance of the objectives of this section requires the identification of known archeological sites at the initial sale stage of government leases. Trustees for Alaska v. State, Dep't of Natural Resources, 847 P.2d 1061 (Alaska 1993). Stated 'in Hammond .-. North Slope Borough, 645 P.2d 750 (Alaska 1982). 14 Sec. 46.40.030. Development of district coastal management programs. Coastal resource districts shall develop and adopt district coastal management programs in accordance with the provisions of this chapter. The program adopted by a coastal resource district shall be based upon a municipality's existing comprehensive plan or a new comprehensive resource use plan or comprehensive statement of needs, policies, objectives and standards governing the use of resources within the coastal area of the district. The program shall be consistent with the guidelines and standards adopted by the council under AS 46.40.040 and shall include: (1) a delineation within the district of the boundaries of the coastal area subject to the district coastal management program; (2) a statement, list, or definition of the land and water uses and activities subject to the district coastal management program; (3) a statement of policies to be applied to the land and water uses subject to the district coastal management program; (4) regulations, as appropriate, to be applied to the land and water uses subject to the district coastal management program; (5) a description of the uses and activities which will be idered proper and the uses and activities which will be consi considered improper with respect to the land and water within the coastal area; (6) a summary or statement of the policies which will be applied and the procedures which will be used to determine whether specific proposals for land or water uses or activities shall be allowed; and (7) a designation of, and the policies which will be applied to the use of, areas within the coastal resource district which merit special attention. (§ 4 ch 84 SLA 1977) ATTY GENERAL OPINION: The adoption of forest practices regulations by the Department of Natural Resources at 11 AAC 95 has completely preempted the coastal policy council's regulations, 6 AAC 80. 100, in regulating timber harvest and processing in the coastal area. April 20, 1981 Op. Att'y Gen. The allocation of responsibility for administration of the forest practices regulations in coastal management consistency determinations is suff iciently unclear that it seems appropriate for resolution by the adoption of regulations since differing policy considerations emphasized in the Forest Practices Act, the Coastal Management Act, and proposed permit reform regulations will be served to a greater or lesser extent by assigning ibilitN for interpreting and applying the forest practices regulations responsi I I Y I I I I I to more than one agency and since a particular result is not compelled under the various pieces of authorizing legislation. April 20, 1981 Op. Att'-, Gen. 15 DECISIONS: Stated in Hammond v. North Slope Borough, 645 P.2d 750 (Alaska 1982). Sec. 46.40.040. Duties of the Alaska Coastal Policy Council. Through the public hearing process and the recording of the minutes of the hearings, the Alaska Coastal Policy Council shall (1) by regulation, adopt under the provisions of AS 44.62 Administrative Procedure Act, for the use of and application by coastal resource districts and state agencies for carrying out their responsibilities under this chapter, guidelines and standards for (A) identifying the boundaries of the coastal area subject to the district coastal management program; (B) determining the land and water uses and activities subject to the district coastal management program; (C) developing policies applicable to the land and water uses subject to the district coastal management program; (D) developing regulations applicable to the land and water uses subject to the district coastal management program; (E) developing policies and procedures to determine whether specific proposals for the land and water uses or activities subject to the district coastal management program shall be allowed; (F) designating and developing policies for the use of areas of the coast which merit special attention; and (G) measuring the progress of a coastal resource district in meeting its responsibilities under this chapter; (2) develop and maintain a program of technical and financial assistance to aid coastal resource districts in the development and implementation of district coastal management programs; (3) undertake review and approval of district coastal management programs in accordance with this chapter; (4) initiate a process for identify1ing and managing uses of state concern within specific areas of the coast; (5) develop procedures or guidelines for consultation and coordination with federal agencies managing land or conducting activities potentially affecting the coastal area of the state; (6) by regulation, establish a consistency review and determination or certification process that conforms to the requirements of AS 46-40.096. (§ 4 ch 84 SLA 1977; am § 1 ch 129 SLA 1978, am § 1 ch 34 SLA 1994) 16 CROSS REFERENCES: For regulations for the Alaska Coastal Management Program, see 6 AAC 50, 6 AAC 80 and 6 AAC 85. AMENDMENT NOTES: 1994 amendment effective August 7,1994 added subsection (6) pertaining to consistency review regulations. Sec. 46.40.050. Action and submission by coastal resource districts. Each coastal resource district shall make substantial progress, in the opinion of the council, toward completion of an approvable district coastal management program and shall complete and submit to the council for approval its program within 30 months of June 4, 1977 or within 30 months of certification of the results of the district's organization, whichever is later. If, in the opinion of the council, after receipt of a written request for extension from the district which includes the reasons for the extension, an extension is considered proper, the council may grant an extension to a date which is not later than December 4, 1981, or to a date which is within 54 months of certification of the results of the district's organization, whichever is later. (S 4 ch 84 SLA 1977; am § 1 ch 66 SLA 1979) Sec. 46.40.060. Review and approval by council. (a) If, upon submission of a district coastal management program for approval, the council finds that the program is substantially consistent with the provisions of this chapter and the guidelines and standards adopted by the council and does not arbitrarily or unreasonably restrict or exclude uses of state concern, the council may grant summary approval of the district coastal management program, or may approve portions of the district program which are consistent. (b) If the council finds that a district coastal management program is not approvable or is approvable only in part under (a) of this section, it shall direct that deficiencies in the program submitted by the coastal resource district be mediated. In mediating the deficiencies, the council may call for one or more public hearings in the district. The council shall meet with officials of the coastal resource district in order to resolve differences. (c) If, after mediation, the differences have not been resolved to the mutual agreement of the coastal resource district and the council, the council shall call for a public hearing and shall 4D resolve the differences in accordance with the Administrative 17 Procedure Act (AS 44.62). After a public hearing held under this subse ction, the council shall enter findings and, by order, may require (1) that the district coastal management program be amended to make it consistent with the provisions of this chapter or the guidelines and standards adopted by the council; (2) that the district coastal management program be revised to accommodate a use of state concern; or (3) any other action be taken by the coastal resource district as appropriate. (d) The superior courts of the state have Jurisdiction to enforce orders of the council entered under (c) of this section. (§ 4 ch 84 SLA 1977) ATTY GENERAL OPINION: The invalid provisions of AS 46.40,080 are severable from the remainder of the Coastal Management Act. Thus, council guidelines take effect when adopted in accordance with the Administrative Procedure Act, AS 44.62. The effective date of council action on district programs is governed by the d's regulations and this section. April 29, 1980 Op. Att'y Gen. counci 1 1 A municipality enacting a local district coastal management program may restrict or exclude a use of state concern without falling afoul of the constitutional limitations in Alaska Const., art. X, Sec. 11 on the exercise of municipal authority if that restriction or exclusion is reasonable, within the meaning of AS 46.40.070(c). May 12, 1980 Op. Att'y Gen. Sec. 46.40.070. Standards for council review and approval. (a) The council shall approve a district coastal management program submitted for review and approval if the program is consistent with the provisions of this chapter and the guidelines and standards adopted by the council. (b) Notwithstanding an inconsistency of a district coastal management program submitted for review and approval with the guidelines and standards adopted, the council shall approve the program if it finds that (1) strict adherence to the guidelines and standards adopted would result in a violation of another state law or policy; (2) strict adherence to the guidelines and standards adopted would cause or probably cause substantial irreparable harm to another interest or value in the coastal area of the district; or (3) the inconsistency is of a technical nature and no substantial harm would result to the policies and objectives of 18 this chapter or the Alaska coastal management program. (c) In determining whether a restriction or exclusion of a use of state concern is arbitrary or unreasonable, the council shall approve the restriction or exclusion if it finds that (1) the coastal resource district has consulted with and considered the views of appropriate federal, state or regional agencies; (2) the district has based its restriction or exclusion on the availability of reasonable alternative sites; and (3) the district has based its restriction or exclusion on an analysis showing that the proposed use is incompatible with the proposed site. (d) A decision by the council under this section shall be given within 90 days. (§ 4 ch 84 SLA 1977) ATTY GENERAL OPINION: Reading subsection (b) as vesting local officials with complete control over policy formulation would probably render the Alaska Coastal Management Act unconstitutional under Alaska Const., art. VIH, Sec. 2. May 12, 1980 Op. Att'y Gen. Reasonable restrictions on oil and gas activities embodied in a local coastal management plan, incorporated into the Alaska Coastal Management Program, would be enforceable against off-shore federal lessees. May 12, 1980 Op. Att'y Gen. A mu nicipality enacting a local district coastal management program may restrict or exclude a use of state concern without falling afoul of the constitutional limitations in Alaska Const., art. X, Sec. 11 on the exclusion of municipal authority if that restriction or exclusion is reasonable, within the meaning of subsection (c). May 12, 1980 Op. Att'y Gen. The Alaska Oil and Gas Conservation Act, AS 31.05.005 et seq., which mandates the conservation of oil and gas and prohibits their waste, would not be contravened by a local coastal management plan which comports with the Alaska Coastal Management Program. May 12, 1980 Op. Att'v Gen. Sec. 46.40.080. Effective date of Alaska coastal management program. The Alaska coastal management program adopted by the council, and any additions, revisions, or amendments of the program, take effect upon adoption of a concurrent resolution by a majority of the members of each house of the legislature or by a vote of the majority of the members of each house at the time the houses are convened in joint session to confirm executive appointments submitted by the governor. (§ 4 ch 84 SLA 1977) CROSS REFERENCES: For effective dates related to the Alaska Coastal is Management Program, see 6 AAC 80.170(n) and 6 AAC 85.180; for 19 resolution approving certain regulations under this section before the A.L.I.V.E. decision (discussed in notes below), see LR 41 in the 1978 Temporary and Special Acts and Resolves. ATTY GENERAL OPINION: Under the decision in State v. A.L.I.V.E. Voluntary, Sup. Ct. Op. No. 2022 (File No. 3670), 606 P.2d 769 (1980), that the use of legislative resolutions as a veto over regulations,- programs or other actions or proposed actions is constitutionally impermissible except as expressly provided by the constitution, this section is invalid. March 6, 1980 Op. Att'y Gen. The invalid provisions of section are severable from the remainder of the Coastal Management Act. Thus, council guidelines take effect when adopted in accordance with the Administrative Procedure Act, AS 44.62. The effective date of council action on district programs is governed by the council's regulations, and AS 46.40.060. April 29, 1980 Op. Att'y Gen. Sec. 46.40.090. Implementation of district coastal management programs. (a) A district coastal management program approved by the council and the legislature for a coastal resource district which does not have and exercise zoning or other controls on the use of resources within the coastal area shall be implemented by appropriate state agencies. Implementation shall be in accordance with the comprehensive State agency use plan or the statement of needs, policies, objectives and implementation standards adopted by the district. (b) A coastal resource distric@ which has and exercises zoning or other controls on the use of resources within the coastal area shall implement its cistrict coastal management program. Implementation shall be in accordance with the Local comprehensive use plan or the statement of needs, policies, implementation objectives and standards adopted by the district. 4 ch 84 SLA 1977) Sec. 46.4C.094. Consistency determinations for phased uses and activities. (a) The provisions of this section apply to a use or activity for which a consistency determination is required if (1) at the time the proposed use or activity is initiated, there is insufficient information :o evaluate and render a consistency determination for the entirety of the proposed use or activitv; (2) the proposed use or activity is capable of proceeding 20 in discrete phases based upon developing information obtained in the course of a phase; and (3) each subsequent phase of the proposed use or activity is subject to discretion to implement alternative decisions based upon the developing information. (b) When a use or activity is authorized or developed in discrete phases and each phase will require decisions relating to a permit, lease, or authorization for that particular phase, the agency responsible for the consistency determination for the particular phase (1) may, in its discretion, limit the consistency review to that particular phase if, but only if, (A) the agency or another state agency must carry out a subsequent consistency review and make a consistency determination before a later phase may proceed; and (B) the agency responsible conditions its consistency determination for that phase on a requirement that a use or activity authorized in a subsequent phase be consistent with the Alaska coastal management program; and (2) shall, when the consistency review is limited under (1) of this subsection, conduct the consistency review for the particular phase and make the consistency determination based on (A) applicable statutes and regulations; (B) the facts pertaining to a use or activity for which the consistency determination is sought that are (1) known to the state agency responsible or made a part of the record during the consistency review; and (11) material to the consistency determination; and (C) the reasonably foreseeable, significant effects of the use or activity for which the consistency determination is sought; (3) shall, when the consistency review is limited under (1) of this subsection, describe in the consistency determination the reasons for its decision to make the consistency determination for the use or activity in phases. (c) In this section, (1) .. agency responsible for the consistency determination., means (A) the office of management and budget, for a consistency determination required to be made under AS 44.19.145(a)(11); and (B) the commissioner of the resource agency that coordinates a consistency review for a proposed use or activity, or for a proposed phase of a use or activity, when required by this chapter for which a permit, lease, or authorization is 21 required to be approved or issued only by that resource agency; (2) "resource agency" has the meaning given in AS 44.19.152. (§ 8 ch 38 SLA 1994) Sec. 46.40.096. Consistency reviews and determinations. (a) The council shall, by regulation, establish a consistency review and determination process that conforms to the requirements of this section. (b) If a consistency review is not subject to AS 44.19.145 (a) (11) because the project for which a consistency review is made requires a permit, lease, or authorization from only one state agency, that state agency shall coordinate the consistency review of the pro,iect. The state agency shall coordinate the consistency review according to the requirements of the regulations adopted by the council under this section. (c) The regulations adopted by the council under this section must include provisions for public notice and provide Public notice the opportunity for public comment. The regulations adopted under this subsection may make distinctions relating to notice based upon differences in project type, anticipated effect of the project on coastal resources and uses, other state or federal -notice requirements, and time constraints. However, a notice given under this subsection must contain sufficient information, expressed in commonly understood terms, to inform the public of the nature of the proposed project for which a consistency determination is sought, and must explain how the public may comment on the proposed project. (d) In preparing a consistency review and determination for a proposed pro'ect, the reviewing entity shall (1) request consistency review comments for the proposed proiect from state resource agencies, affected coastal resource districts, and other interested parties as determined by regulation adopted by the counc]; (2) prepare proposed consistency determinations; (3) coordinate subsequent reviews of proposed consistency determinations prepared under (2) of this subsection; a subsequent review of a proposed consistency determination under this paragraph (A) is limited to a review by the state resource agencies; and (B) may occur only if requested by 0 1 the pro'ect applicant; ) J (11) a state resource agency, or ( 11) i** an affected coastal resource district; (4) after providing an opportunity to file a petition for review under (e) of this section, render the final consistency determination and certification. (e) Under regulations adopted by the council, the reviewing entity shall provide opportunity to file a petition under AS 46.40.100(b)(1) seeking a review by the council of the proposed consistency determination prepared under (d)(2) of this section. The regulations must include provisions that establish a reasonable limit on the time that may elapse between the completion of the proposed consistency determination prepared under (d)(2) of this section and a hearing to consider a petition filed under this subsection. Not more than 30 days shall elapse between the filing of the petition and the decision by the council. Under this subsection, (1) the right to file a petition is limited to Right to (A) each of the following parties, but only if the petition party had submitted comments during the period for receipt of public comments established under (c) of this section: (i) an affected coastal resource district; ii) a state agency; or (iii) a citizen of an affected coastal resource district; or (B) the pro)ect applicant; and (2) the reviewing entity (A) may not accept a petition filed under this subsection if a final consistency determination has been rendered under (d)(4) of this section; (B) may accept a petition filed by a party identified in (1)(A)(1), (1)(A)(11), or (1)(B) of this subsection only if a party had requested a review of the proposed consistency determination prepared under (d)(2) of this section; (C) may accept a petition filed by a party identified in (1)(A)(111) of this subsection without regard to whether a party had requested a review of the proposed consistency determination prepared under (d)(2) of this section. (f) For a consistency review subject to AS 44.19.145(a)(11), the council may, by regulation, limit consideration of a petition under (e) of this section seeking review of a proposed consistency determination to the extent necessary to meet the deadlines set by federal law for timely submission of a federal consistency determination as allowed@ by 16 U.S.C. 1456. (g) In this section, (1) "affected coastal resource district" means a coastal resource district in which a project is proposed to be located or which may experience a direct and significant impact from a 23 proposed project; (2) "reviewing entity" means the (A) office, for a consistency review subject to AS 44.19.14 5 (a) (11); (B) state agency identified in (b) of this section, for a consistency review not subject to AS 44.19.145(a)(11). 2 ch 34 SLA 1994) Sec. 46.40.100. Compliance and enforcement. (a) Municipalities and state agencies shall administer land and water use regulations or controls in conformity with district coastal management programs approved by the council and the legislature and in effect. (b) A party that is authorized under AS 46.40.096(e)(1) or (g) of this section may file a petition showing that a district coastal Petition process management program is not being implemented, enforced, or complied with. On receipt of a petition, the council, after giving public notice in the manner required by (f) of this section, shall convene a hearing to consider the matter. A hearing called under this subsection shall be held in accordance with regulations adopted by the council. After hearing, (1) if the petition was filed under AS 46.40.096(e) and the council finds that Council action (A) the office or the state agency responsible for on petition coordinating the consistency review has not fairly considered the petitioner's comments in the development of a proposed consistency determination, the council shall remand the proposed consistency determination to the office or to the state agency responsible for coordinating the consistency review, for preparation of a revised proposed consistency determination that gives fair consideration to the petitioner's comments; (B) a remand of the consistency determination is not required under (A) of this paragraph, the council shall dismiss the petition; (2) if the petition was not filed under AS 46.40.096(e), the council may order that the coastal resource district or a state agency take any action the council considers necessary to implement, enforce, or comply with the district coastal management program. (c) Except when a petition has been filed under AS 46.40.096(e), in determining whether an approved district coastal management program is being implemented, enforced, or complied with by a coastal resource district that exercises zoning authority or controls on the use of resources within the Council review of coastal area, the council shall find in favor of the district if district actions 24 (1) zoning or other regulations have been adopted and are being enforced; (2) variances are being granted according to procedures and criteria that are elements of the district coastal management program, or the variance is otherwise approved by the council; and (3) procedures and standards adopted by the coastal resource district as required by this chapter or by the guidelines and standards adopted by the council and subsequently approved by the legislature have been followed and considered. (d) Except when a petition has been filed under AS 46.40.096(e), in determining whether a state agency is Council review complying with a district coastal management program with of State agency respect to its exercise of regulation or control of the resources actions within the coastal area, the council shall find in favor of the agency if (1) the use or activity for which the permit, license, or approval is granted is consistent with the district coastal management program and regulations adopted under it; and (2) the use or activity for which the permit, license, or approval is granted is consistent with requirements imposed by state statute, regulation, or local ordinance applicable to the use or activity. (e) The superior courts of the state have jurisdiction to enforce lawful orders of the council. (f) Upon receipt of a petition under (b) of this section, the council shall give notice of the hearing convened to consider the petition as follows: (1) notice of the hearing shall be given at least 10 days before the scheduled date of the hearing (A) by publication in (1) a newspaper of statewide circulation; or (11) a newspaper of general circulation in the vicinity of the district coastal management program that is the subject of the petition; and (B) by at least one of the following methods: (1) publication through public service announcements on the electronic media serving the area affected by the district coastal management program; (11) posting in a conspicuous location in the vicinity of the proposed project or action; (111) notifying parties known or likely to be affected by the proposed project or action; or (Iv) another method calculated to effectiveiv notify affected interested parties. (2) a notice provided under (1) of this subsection must 25 (A) contain sufficient information in commonly understood terms to inform the public of the nature of the petition; and (B) indicate the manner in which the public may comment on the petition if the petition is filed under (b)(2) of this section. (g) The opportunity to petition under (b)(2) of this section is limited to (1) a coastal resource district; (2) a citizen of the coastal resource district; or (3) a state agency. 4 ch 84 SLA 1977; am §§ 3, 4, 5, 6 ch 34 SLA 1994) ATTY GENERAL OPINION: For effective date of coastal management programs, see notes under this heading following AS 46.40.080. (Note: See Opinion dated March 2, 1993 regarding Coastal Policy Council member's eligibility to hear petitions under AS 46.40.100.) AMENDMENT NOTES: The 1994 amendments make a distinction between a petition filed on a consistency determination under AS 46.40.096(e) and a petition filed cn a general ACMP matter under AS 46.40.100(b). The 1994 amendments also clarify that the CPC will hold a hearing to consider a petition with public notice. 26 Article 2. Coastal Management Programs in the Unorganized Borough Section Section 110. Authority in the unorganized borough 160. Organization at the direction of the 120 .Coastal resource service areas council 130. Organization of coastal resource 170. Preparation of district coastal manage- service areas ment program by the Dept. of Community 140. Coastal resource service area boards and Regional Affairs 150. Elections in coastal resource service 180. Approval of programs in coastal resource areas service areas Sec. 46.40.110. Authority in the unorganized borough. Under AS 29.03.020 and AS 46.40.110 - 46.40.180, the legislature authorizes organization of coastal resource service areas in the unorganized borough and grants authority to the service areas which may be organized to perform the duties required under this chapter. (§ 4 ch 84 SLA 1977) Collateral References - 78 Am. jur. 2d, Waters, § 59-116, 375-438 65 C.J.S., Navigable Waters, S 10-18, 20-132; 93 C.J.S., Waters, § 71-85. Sec. 46.40.120. Coastal resource service areas. (a) Except as otherwise provided in this section, each regional educational attendance area established under AS 14.08.031 containing a part of the coastal area may be organized as a coastal resource service area. (b) The commissioner of the Department of Community and Regional Affairs may, after public hearings held in the area affected, consolidate two or more regional educational attendance areas as a single coastal resource service area Consolidation (1) if a substantial portion of the coastal area contains of REAA's land and water area owned by the federal government over which it exercises exclusive Jurisdiction or land held in trust by the federal government for Alaska Natives over which the state would not exercise control as to use; or (2) if, after giving due consideration to the standards applicable to incorporation of borough governments and the likelihood that a borough will be incorporated within the area, the commissioner determines that the functions to be performed under this chapter could be undertaken more efficiently through the combination of two or more regional educational attendance areas as a single coastal resource service area. (c) A determination under (b) of this section shall be made 27 before organization of the coastal resource service area. (d) For purposes of coastal zone management only, the commissioner of the Department of Community and Regional Affairs may, after public hearings held in the regional educational attendance area affected, divide an existing regional Division of R.EAA's educational attendance area into no more than three coastal resource service areas according to geographic, cultural, economic, environmental, or other features relevant to coastal management planning. However (1) each coastal resource service area formed by dividing an existing regional educational attendance area must contain at least one first class city or home rule city; (2) a city within a coastal resource service area formed by dividing an existing regional educational attendance area may not elect to exclude itself from the coastal resource service area; and (3) a coastal resource service area formed before June 1, 1980, may not be divided for coastal management planning purposes. (§ 4 ch 84 SLA 1977; am § 2 ch 129 SLA 1978; am 1, 2 ch 48 SLA 1980) Sec. 46.40.130. Organization of coastal resource service area. (a) Organization of a coastal resource service area may be initiated (1) by submission to the council of a petition signed by a number of registered voters equal to 15 percent of the number of votes cast v6thin the coastal resource service area at the last state general election; (2) by submission to the council of a resolution approved by the city council or traditional village council of not less than 2-5 percent of the number of cities and villages ,vithin the coastal sen'ice area; or (3) at the direction of a majority of the members of the council in the manner set out in AS 46.41C.16C. (b) Acting at the request of the council, the lieutenant governor, not less than 6-. nor more than 90 davs after receipt of a proper petition under (a)(1) of this section, a proper resolution under (a)(2) of this section, or at the direction of the council under (a)(3) of this section, shall conduct an election on the question of organization of a coastal resource service area. 4 ch 84 SLA 1977) 28 Sec. 46.40.140. Coastal resource service area boards. (a) Each coastal resource service area, upon organization, shall have an elected board representing the population of the service area. The board shall have the powers and duties and perform the functions prescribed for or required of coastal resource districts. (b) A coastal resource service area board shall contain seven members. Board members shall be elected at large by the qualified voters of the coastal resource service area. (c) The commissioner of the Department of Community and Regional Affairs, after consultation with residents of a coastal Sectional resource service area, may divide a service area into sections CRSA only for the purpose of nominating and electing board elections members. Division of a service area into sections for the purpose of nomination and election shall be in accordance with the provisions of AS 14.08.051 (a). Division may be proposed in the petition submitted under AS 46.40.130(a)(1), in the resolution submitted under AS 46.40.130(a)(2), at the direction of the council under AS 46.40.130(a)(3), or may be proposed at any time by the members of the coastal resource service area board. If proposed by the board, the division of the service area into sections is subject to approval of a majority of the qualified voters voting on the question in the coastal resource service area at the next regular election or at a special election called for that purpose and, if approved, takes effect at the next regular election of members of the coastal resource service area board. (d) The term of office of a member of a coastal resource Term of service area board is three years, except that the terms of the office members of the first board elected after organization of a coastal resource service area shall be determined by lot, with two members serving one-year terms, two members serving two-year terms, and three members serving three-year terms. Members serve until their successors are elected and have qualified. This section does not prohibit the reelection of a board member. (e) The lieutenant governor shall provide for the election of the members of coastal resource service area boards. The first Board election of board members shall occur at the same time as the Election organization election under AS 46-40.130(b). (f) Except for the first election of members of coastal resource service area boards, elections shall be held annually on the date of election of members of regional educational attendance area boards under AS 14.08.071(b). For an election under this subsection or under (e) of this section, a newly elect ed board member takes office at the first coastal resource service area board meeting after certification of the election. If 29 no candidate files for election to a seat on the coastal resource service area board, the seat is considered vacant at the time a newly elected member would have taken office. (g) A seat on a coastal resource service area board shall be Vacancy declared vacant by the board if the criteria under AS 14.08.045(a) apply to the person elected. A vacancy on a coastal resource service area board shall be filled by appointment as provided in AS 14.12.070 for vacancies in the membership of regional educational attendance area boards. (h) Members of coastal resource service area boards are Board member subject to recall on the same grounds and in the same manner Recall ided for recall of municipal officials in AS 29.26.240 - as provi 1 29.26.350. The lieutenant governor functions in place of the assembly or council and municipal clerk for receipt and review of recall petitions and the conduct of recall elections. (§ 4 ch 84 SLA 1977; am § 85 ch 74 SLA 1985; am § 5 - 7 ch 129 SLA 1990) AMENDMENT NOTES: The 1990 amendment rewrote the second sentence in subsection (e); added the second and third sentences in subsection (f); and added the first sentence and made an internal reference change in the second sentence in subsection (g). Sec. 46.40.150. Elections in coastal resource service areas. Organization elections under AS 46.40.130 and other elections, including recall elections conduzted under AS 46.40.140, shall be administered by the lieutenant governor in the general manner provided in AS 15 (Election Code). In addition, the lieutenant governor may adopt regulations necessary to the conduct of coastal resource service area board elections. The state shall pay all election costs. (§ 4 ch 84 SLA 1977) Sec. 46.40.160. Organization at the direction of the council. (a) Whenever it appears that major economic development activity will occu,- in a coastal resource service area or in water adjacent to a coastal resource service area which has not been organized, the council may direct the Council direction lieutenant governor to submit to the voters of the service area to seek the question of organization. The council may require an CRSA organization election on the question only after holding at least one public hearing within the area proposed for organization. (b) In this section, "major economic development activity" includes a call for nomination by the Secretary of the United 30 States Department of the Interior for leasing of tracts within petroleum basins in water of the outer continental shelf adjacent to the coastal resource service area or any other significant industrial or commercial activity which, in the opinion of the council, would commit the resources of the coastal area to a use of direct and significant impact upon the coastal water of the state. (§ 4 ch 84 SLA 1977) Sec. 46.40.170. Preparation of district coastal management program by the Department of Community and Regional Affairs. (a) If residents of a coastal resource service area reject organization of the service area at an election called for the purpose and the council finds, after public hearing, that major economic development activity has occurred or will occur within the service area, the council may direct the Department of Community and Regional Affairs to prepare and recommend for consideration by the council and for submission to the legislature a district coastal management program for the service area. (b) At the request of the council, the Department of Community and Regional Affairs shall complete the district coastal management program in accordance with this chapter and the guidelines and standards adopted by the council for a coastal resource service area which has been organized but which has failed to make substantial progress in the preparation of an approvable district coastal management program within 18 months of certification of the results of an organization election orwhich has not submitted for approval to the council a program within 30 months of certification of the results of its I I Preparation of the program shall be organ zat on election. I conducted in consultation with the coastal resource service area and shall, to the maximum extent consistent with this chapter, reflect the expressed concerns of the residents of the service area. (c) Before requesting the department to complete the district coastal management program under (b) of this section, the council shall meet with the members of the coastal resource service area board to determine whether the board is able to complete a district coastal management program within the time limitations established in this section. (§ 4 ch 84 SLA 1977) 31 Sec. 46.40.180. Approval of programs in coastal resource service areas. (a) Before adoption by a coastal resource service City/Village area board, or by the Department of Community and Regional Review/Action Affairs under AS 46.40.170, a district coastal management program shall be submitted for review to each city or village within the coastal resource service area. The council of a city or traditional village council shall consider the program submitted for review. Within 60 days of submission, the council of a city or traditional village council shall either approve the program or enter objections to all or any portion of the program. (b) If a city or village within a coastal resource service area falls to approve a portion of the district coastal management program prepared and submitted for approval under (a) of this section, the governing body shall advise the coastal resource service area board or the department, as applicable, Of its objections to the proposed program and suggest alternative elements or components for inclusion in the district coastal management program. New matter submitted by a city or village which is substantially consistent with the guidelines and standards adopted by the council shall be accepted and the district coastal management program modified accordingly. If a fails to prov de objections and suggested c tv or vi 1 1. alternatives within the time limIts established in this section, the coastal resource service area board or the department, as applicable, may adopt the district coastal management program as initially offered. (c) Objection by a city council under (b) of this section is limited to objection to elements of the program affecting resources or the use of resources Y@-Ithin the corporate limits of the citv. Objection bv a traditional village council under (b) of this section is limited to objection to elements of the program affecting resources or the use of resources within the village or Within two miles of the village. (d) For purposes of this seCtion, "village" means an unincorporated community @vhe-e at least 25 persons reside as a social unit as determined bNf the Department of Communitv and Regional Affairs. (§ 4 cl@ 84 SLA 1977) 32 Article 3. General Provisions Section Section 190. Cooperative administration 210. Definitions 200. State agencies Sec. 46.40.190. Cooperative administration. (a) A city within the coastal area which is not part of a coastal resource City inclusion service area shall be included for purposes of this chapter in CRSA within an adjacent coastal resource service area unless its governing body, by resolution adopted by a majority of its membership, chooses to exclude the city from an adjacent coastal resource service area and a copy of the resolution is filed with the commissioner of community and regional affairs. (b) This chapter does not restrict or prohibit cooperative or joint administration of functions between a municipality and a coastal resource service area organized under the provisions of this chapter upon initiation of a mutual agreement for the purpose. A city which elects to be excluded from an adjacent coastal resource service area under (a) of this section shall enter into a mutual agreement for cooperative orJoint administration 40 of functions with the coastal resource service area board from the adjacent coastal resource service area. (S 4 ch 84 SLA 1977; am § 3 ch 48 SLA 1980) Collateral References - 78 Am. Jur. 2d, Waters, § 59-116, 375-438 65 C.J.S., Navigable Waters, 5 10-18, 20-132; 93 C.J.S., Waters, § 71-85. Sec. 46.40.200. State agencies. Upon the adoption of the Alaska coastal management program, state departments, boards and commissions shall re-lew their statutorv authorit Y1 administrative regulations, and applicable procedures pertaining State agency to land and water uses within the coastal area for the purpose compliance of determining whether there are any deficiencies or inconsistencies which prohibit compliance with the program adopted. State agencies shall, within six months of the effective date of the Alaska coastal management program, take whatever action is necessary to facilitate full compliance with and implementation d the program, including preparation and submission of recommendations to the council for additional or amended legislation. (§ 4 ch 84 SLA 1977) 33 Sec. 46.40.210. Definitions. In this chapter, unless the context otherwise requires, (1) "area which merits special attention" means a delineated geographic area within the coastal area which is sensitive to change or alteration and which, because of plans or commitments or because a claim on the resources within the area delineated would preclude subsequent use of the resources to a conflicting or incompatible use, warrants special management attention, or which, because of its value to the general public, should be identified for current or future planning, protection, or acquisition; these areas, subject to council definition of criteria for their identification, include: (A) areas of unique, scarce, fragile or vulnerable natural habitat, cultural value, historical significance, or scenic importance; (B) areas of high natural productivity or essential habitat for living resources; (C) areas of substantial recreational value or opportunity; P) areas where development of facilities is dependent upon the utilization of, or access to, coastal water; (E) areas of unique geologic or topographic significance which are susceptible to industrial or commercial development; (F) areas of significant hazard due to storms, slides, floods, erosion or settlement; and (G) areas needed to protect, maintain, or replenish coastal land or resources, including coastal flood plains, aquifer recharge areas, beaches and offshore sand deposits; (2) "coastal resource district" means each of the following which contains a portion of the coastal area of the state: (A) unified municipalities; (B) organized boroughs of any class which exercise planning and zoning authority; (C) home rule and first :lass cities of the unorganized borough or within boroughs which do not exercise planning and zoning authoritN I (D) second ciass cities of the unorganized borough, or within boroughs which do not exercise planning and zoning authorltv, which have established a planning commission, and which, in the opinion of the commissioner of community and regional affairs, have the capability of preparing and implementing a comprehensive district coastal management program under AS 46.40.030; (E) coastal resource service areas established and organized under AS 29.03.021C and AS 46.40.110 - 46.40.180; (3) "council" means the Alaska Coastal Policv Council; 34 (4) "department" means the Department of Community and Regional Affairs (5) "use of direct and significant impact" means a use, or an activity associated with the use, which proximately contributes to a material change or alteration in the natural or social characteristics of a part of the state's coastal area and in which (A) the use, or activity associated with it, would have a net adverse effect on the quality of the resources of the coastal area; (B) the use, or activity associated with it, would limit the range of alternative uses of the resources of the coastal area; or (C) the use would, of itself, constitute a tolerable change or alteration of the resources within the coastal area but which, cumulatively, would have an adverse effect; (6) "uses of state concern" means those land and water uses which would significantly affect the long-term public interest; these uses, subject to council definition of their extent, include: (A) uses of national interest, including the use of resources for the siting of ports and major facilities which contribute to meeting national energy needs, construction and maintenance of navigational facilities and systems, resource development of federal land, and national defense and related security facilities that are dependent upon coastal locations", (B) uses of more than local concern, including those land and water uses which confer significant environmental, social, cultural, or economic benefits or burdens beyond a single coastal resource district; (C) the siting of major energy facilities, activities pursuant to a state oil and gas lease, or large-scale industrial or commercial development activities which are dependent on a coastal location and which, because of their magnitude or the magnitude of their effect on the economy of the state or the surrounding area, are reasonably likely to present issues of more than local significance; (D) facilities serving statewide or interregional transportation and communication needs; and (E) uses in areas established as state parks or recreational areas under AS 41.21 or as state game refuges, game sanctuaries or critical habitat areas under AS 16.2C. (7) "consistency review" means the evaluation of a proposed project against the standards adopted by the council under AS 46.40.040 and a district coastal management program approved by the council under AS 46.40.060; (8) "office" means the office of management and budget 35 established in the Office of the Governor. (§ 4 ch 84 SLA 1977; am § 3 ch 129 SLA 1978; am § 86 ch 74 SLA 1985; am § 7 ch 34 SLA 1994) AMENDMENT NOTES: The 1994 amendment added (7) and (8). 36 -N 3w @*x R TITLE 6. GOVERNOR'S OFFICE DIVISION OF GOVERNMENTAL COORDINATION CHAPTER 50. PROJECT CONSISTENCY WITH THE ALASKA COASTAL MANAGEMENT PROGRAM Section Section 10. Purpose of regulations 80. Confidential information and fees 20. Federal consistency determinations 90. Emergency expedited review 30. State permit consistency determination 100. Public Participation 40, Preapplication assistance 110. Review period deadlines and extensions 50, Expedited review by categorical approval 120. Conclusive consistency determinations 60. Scope of project to be reviewed 130. Issuance of project permits 70, Consistency review process 190. Definitions 6 AAC 50.010. PURPOSE OF REGULATIONS. The regulations in this chapter are intended to implement, interpret, and make specific (1) the responsibility of the office of management and budget (OMB) to implement the Alaska Coastal Management Program (ACMP) by rendering on behalf of the state (A) all responses concurring in or objecting to a federal consistency certification or determination which is required or authorized bv sec. 3^17 of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. \p1456, (CZMA), and (B) all conclusive consistencv determinations for any project requiring two or more state agency or federal permits as required by AS 44.19.145(a)(11); and (2) the responsibility of resource agencies to implem ent the ACMP bv makim, conclusive zonsistencv determinations for proJects requiring the permit of a single state agency and no federal permit, and to expedite their permit review procedures, to the extent permitted by la,,N-, by coordinating their own procedures with the consistency revievk- of a project. (Eff. 3/11/84, Register 89) Authoritv: AS 44.19.145(a) AS 46.40.100(a) Art. III, sec. 1, Ak. Const. Art. 111, sec. 16, A1. Const. Art. III, sec. 21, Ak. Const. 37 6 AAC 50.020. FEDERAL CONSISTENCY DETERMINATIONS. The division of governmental coordination PGQ of the office of management and budget will coordinate a consistency review and render a response concurring in or objecting to a federal consistency certification or determination which is required or authorized by sec. 307 of the CZMA. DGC will coordinate the review in the manner provided in this chapter and will render a response in the time and manner prescribed in the CZMA or in the regulations implementing that Act. (Eff. 3/11/84, Register 89) Authority: AS 44.19.145(a) 6 AAC 50.030. STATE PERMIT CONSISTENCY DETERMINATIONS. (a) DGC will coordinate the review and DGC render a determination for a project which requires the permits coordination of two or more state agencies or a federal permit, in the manner provided in this chapter. (b) A resource agency shall coordinate the consistency review and render a conclusive consistency determination for a project which requires only the permits of a single state agency and no Single agency federal permit. The agency shall coordinate the review and render review its determination in the manner provided in this chapter. (c) DGC will participate in a single-agency consistency review in the same manner as the other resource agencies participate. DGC will also, on request of the coordinating agency, act as a facilitator to attempt to resolve any disputed issues. If the project includes a disposal of interest in state land, DGC will either concur in the determination or require modifications necessary for its concurrence. (d) DGC will, in its discretion, at any time, with reasonable notice, review the consistency review procedures, files, or decisions of a coordinating agency, (Eff. 3/11/84, Register 89; em am 5/1/90 - 8/9/90, Register 114) Authority: AS 44.19.145(a) AS 46.40.100(a) Art. III, sec. 1, Ak-. Const. Art. 111, sec. 16, Ak-. Const. Art. 111, sec. 24, Ak-. Const. 38 6 AAC 50.040. PREAPPLICATION ASSISTANCE. DGC III, on request, assist a potential applicant for a state permit for w I a project by providing and explaining the coastal project questionnaire and the consistency review process as described in 6 AAC 50.070, identifying persons to contact in other state or federal agencies, determining the scope of activities which comprise the project, and providing any other assistance or information at its disposal to facilitate review and approval of the applicant's proposed project. A resource agency shall, on request, provide similar assistance and shall also provide application forms for its own permits. DGC and all resource agencies will attempt to regularly inform each coastal resource district of proposed projects which may have significant and direct impacts on that district. (Eff. 3/11/84, Register 89) Authority: AS 44.19.145(a) AS 46.40.100(a) Art. III, sec. 1, Ak. Const. Art. III, sec. 16, Ak. Const. Art. 111, sec. 24, Ak. Const. 6 AAC 50.050. EXPEDITED REVIEW BY CATEGORICAL APPROVAL AND GENERAL CONCURRENCE DETERMINATIONS. (a) The consistency review of a project will be expedited as provided in (b) or (c) of this section if the project meets the requirements of one of those subsections. (b) A project which requires one or more state or federal permits, each of which appears on the list published under (e) of this section listing permits which have been categorically approved by DGC as being consistent with the ACMP, is considered to have been conclusively determined by DGC to be consistent with the ACMP. A permit will be categorically Categorical approved if DGC determines that the activity authorized by the approval permit will have no significant impact in the coastal zone. (c) A project which requires one or more state or federal permits not categorically, approved as provided in (b) of this section will be considered consistent without further review, if it meets the requirements of a general concurrence determination contained on the I1§t published under (e) of this section. A General general concurrence determination" is a consistency concurrence determination for a type of project which includes only routine activities, and which can be effectivelv made consistent with the ACMP by imposing standard stipulations on the applicable permit. If a subsequent project of any applicant fits the 39 description in a general concurrence determination, the project will be considered consistent with the ACMT if it complies with the stated standard stipulations. Individual (d) A project which requires one or more state or federal project permits, and which is not within the categories described in (b) review or (c) of this section, is subject to review as an individual project as provided in this chapter. (e) DGC will publish a list of permits which have been categorically approved as being consistent with the ACMP, and a list of general concurrence determinations, and will identify on List of each list those permits or projects for which a coastal project permits questionnaire is not necessary. DGC will amend these lists as necessary on its own initiative, or on the request of a coastal resource district or a resource agency based on new information regarding the impacts of these activities, including cumulative impacts. Before publishing or amending these lists, DGC will distribute the proposed lists or amendments for comment in the 6 AAC 50.070 for a pro*ect consistency manner provi I review. (Eff. 3/11/84, Register 89) Authority: AS 44.19.145(a) Art. 111, sec. 1, Ak. Const. Art. III, sec. 16, Ak. Const. Art. III, sec. 24, Ak. Const. 6 AAC 50.060. SCOPE OF PROJECT TO BE REVIEWED. The scope of activities which are to be reviewed for consistency with the ACMP as part of a project will be determined based on statements of the applicant, the information provided in the coastal pro)ect questionnaire, and any additional information -which DGC or a resource agency finds necessary to request. If there is disagreement among the agencies, DGC will make the final decision. If DGC determines that a project under review by a resource agency is one requiring a federal permit, or the permits of two or more state agencies, DGC will immediately notify the applicant and the resource agency that the consistency review will be coordinated by DGC, and will commence as provided in 6 AAC 50.070 when DGC has received completed applications for all necessary permits and a completed coastal-project questionnaire. (E ff. 3/11/84, Register 89; em am 5/1/90 - 8/9/90, Register 114) Authority: AS 44.19.145(a) Art. III, sec 1, AL Const. Art. 111, sec. 16, Ak-. Const. Art.111, sec. 24, Ak Const. is 40 6 AAC 50.070. CONSISTENCY REVIEW PROCESS. (a) Except as provided in 6 AAC 50.050(e) or in (b) of this section, DGC on request, or a resource agency which receives an application for a permit for a coastal project, shall give the Project applicant a project questionnaire provided by DGC. Based on the questionnaire information provided by the applicant in response to the questionnaire, the agency shall identify all state resource agencies which the applicant must contact regarding the project before submitting an application for a permit. (b) A project questionnaire is not required for placer mining Placer activity which is authorized by an annual application known as mining the "tri-agency placer mining application." These applications must be submitted to the Department of Natural Resources (DNR). DNR will distribute these applications to initiate the consistency review of the projects as provided in this chapter. (c) For a project requiring a federal permit or the permits of two or more state agencies, the applicant shall submit a packet including all necessary state permit applications, copies of all Completed necessary federal permit applications, and the project packets questionnaire to DGC, except that confidential information or fees must be handled as provided in 6 AAC 50.080. The coordinating agency may require the applicant to provide additional copies of maps or other documents which may not be conveniently duplicated. (d) For a project requiring only the permits of a single state agency, the applicant shall submit a packet including all necessary applications and the project questionnaire to the agency. (e) Immediately upon receipt, or within 7 days if the packet includes an oil discharge prevention and contingency plan submitted under 18 AAC 75, the coordinating agency shall review the packet and shall inform the applicant if it appears to be sufficient for public review. If the packet appears to be sufficient for public review, anJ the project does not include a disposal of interest in state land, the coordinating agency shall immediately assign a project number, and note the date as Day 1 of the consistency review process. If public notice is required, the coordinating agency will assign Day 1 as that day on which all Dav 1 required notices have been published. For a project which includes a disposal of interest in state land, the consistency review will begin at a date which DGC and DNR agree will most effectively allow for both the consistency review and DNR's own statutory responsibilities. Acceptance of the packet does not preclude an agency from requesting additional information or applications from the applicant as necessary for its consistency Copies review or its own statutory responsibilities. On or before Day 2, distributed the coordinating agency will distribute copies of the packet to all 41 review participants, and other interested parties. For a 30-day review, the distribution may be limited in the discretion of the coordinating agency but must, if requested in writing, include any affected coastal district with an approved program. Along with the packet, the coordinating agency will distribute a review Review schedule establishing a comment deadline at Day 34, or at Day 17 schedule in a 30-day review period, or later if the review period is extended as provided in 6 AAC 50.110. The review schedule under this section will also state the applicable time limit, if any, imposed by the federal law or regulation. (f) If the coordinating agency determines that the public notice, Public if any, provided by the resource agencies as part of their review notice of a permit Is not adequate to inform the public about the project and the consistency review process, the coordinating agency shall, as soon as possible, publish a public notice in a newspaper or on radio or television in the affected areas, describing the project and the consistency review process. In evaluating the need for public notice of a project, the coordinating agency shall consider the magnitude of likely impacts, including cumulative impacts on the affected area, but may not unreasonably require public notice for a project for which notice is not statutorily required. DGC will encourage the Joint public notice of project reviews when a permit from more than one agency is required. (g) The coordinating agency, on its own initiative or at the request of a review participant, may request from the applicant on or before Day 25, or Day 15 of a 30-day review period, Request for additional information relevant to the propose4pro)ect, which is additional necessary for its consistency review or its own statutory information responsibilities. (h) Comments must be received by the coordinating agency on Comments or before the comment deadline established by the coordinating agency. Each commenter shall also send copies of its comments to the resource agencies. Verbal comments must be confirmed by written comments postmarked within five working days after the verbal comments. If the commenter recommends stipulations on Stipulations the consistency determination, a brief written justification must be provided by the commenter for each stipulation. Upon justification request, the coordinating agency shall send copies of comments to other interested parties. (1) The coordinating agency shall encourage and facilitate consideration of comments received and discussion among the review participants. The coordinating agency shall determine whether there is a consensus among the resource agencies regarding a proposed consistency determination. The coordinating Proposed agency shall notify the review participants, the applicant, and determination other commenting parties, on or before Day 44, or Day 24 in a 42 30-day review period, of the proposed determination or the issues to be resolved. If a resource agency, an affected coastal resource district with an approved program, or the applicant does not concur with the proposed consistency determination, it may request elevation Request for of the review by submitting a written statement which describes elevation its concerns and includes a proposed alternative consistency determination which would meet its concerns. That party shall distribute this statement so that all review participants, the applicant, other commenting parties, and DGC will receive a copy on or before Day 49, or Day 29 in a 30-day review period, or within five days after receiving notice of the proposed determination, whichever is later. This requirement may be satisfied by transmitting the substance of the statement to the coordinating agency by telephone or other telecommunication device and sending written confirmation to all parties by mail or courier on or before the deadline under this subsection. (k) The coordinating agency shall issue a conclusive consistency determination on or before Day 5C, or Day 30 in a 30-day review period, if it has not received a request to elevate the review. If the coordinating agency receives a request, the agency shall elevate the review as necessary to the division directors, and then commissioners of the resource agencies, and may extend the decision deadline in accordance with 6 AAC 5C.11C(b)(7). If the review is elevated, the coordinating agency, or DGC on request, shall arrange meetings and shall mediate among the resource agencies, the affected coastal resource districts with approved programs, and the applicant, for the purpose of attempting to resolve any disputed issues and to formulate a mutually acceptable consistency determination. If no consensus is reached, the coordinating agency shall render a determination consistent with any policy direction given by the commissioners or the governor. (Eff. 3/11/84, Register 89; em am 5/1/90 - 8/29/90, Register 114; am 5/20/93, Register 126) Authoritv: AS 44.19.161 AS 46.40.01C AS 46.40.04C 6 AAC 50.080. CONFIDENTIAL INFORMATION AND FEES. An application for a state permit requiring information which must by law be held in confidence, and any fee associated with a state permit, must be submitted by the applicant directly to the agency with responsibility for issuing the permit. The agency shall delete the confidential information from any copy of 43 the application which is distributed for a consistency review under this chapter. (Eff. 3/11/84, Register 89) Authority: AS 44.19.145(a) Art. III, sec. 1, Ak. Const. Art. 111, sec. 16, Ak. Const. Art. III, sec. 24, Ak. Const. 6 AAC 50.090. EMERGENCY EXPEDITED REVIEW. If, due to an emergency as described in AS 26.23 or AS 46.04.080 or other applicable law, an applicant needs an expedited agency permit or consistency review, or if the head of the coordinating agency finds that an expedited review is necessary for the preservation of the public peace, health, safety, or general welfare, the head of the coordinating agency may modify the review process established in this chapter as necessary to meet the emergency. Any modifications in the review process made under this section must be made in writing by the head of the coordinating agency, based upon clear and convincing evidence of a need for the modification. (Eff. 3/11/84, Register 89) Authority: AS 44.19.145(a) Art. III, sec. 1, Ak-. Const. Art. III, sec. 16, Ak-. Const. Art. III, sec. 24, Ak. Const. 6 AAC 50.100. PUBLIC PARTICIPATION. (a) Any person may comment on a proposed project by submitting written comments to the coordinating agency on or before the comment deadline. The coordinating agency shall provide a copy of the project packet to any person on request. (b) If the coordinating agency receives a request for public hearing regarding a project by Day 34, or Dav 17 of a 30-day j Public review period, and finds that the request is based on concerns not hearin- already adequately addressed in the review, the coordinating agency Shall schedule and hold a hearing in the area affected by the project. (c) Within seven days after receiving a request under (b) of this section, the coordinating agency shall decide whether or not to hold a public hearing. (d) At least 15 but no more than 30 days before the date of a public hearing, the coordinating agency shall give notice of the time and place of the hearing. (1) by publication in a newspaper which is circulated in the area to be affected by the project; 44 (2) by written notice to the governing body of an affected coastal resource district; and (3) if the project is to be located in the unorganized borough, by radio or television announcements. (e) If new information or issues are presented at a public hearing that have not been considered or resolved by project reviewers, the coordinating agency shall summarize those portions of the hearing testimony and distribute the summary to other resource agencies, affected coastal resource districts, and the applicant, within five days following the hearing. Recommendations for a proposed determination based on the summary may be submitted to the coordinating agency in writing within seven days after receipt of the summary. (Eff. 3/11/84, Register 89) Authority: AS 44.19.145(a) Art. III, sec. 1, Ak. Const. Art. 111, sec. 16, Ak. Const. Art. III, sec. 24, Ak. Const. 6 AAC 50.110. REVIEW PERIOD DEADLINES AND EXTENSIONS. (a) The coordinating agency shall complete a review by either Day 30 or Day 50 unless it extends the applicable decision deadline as provided in (b) or (c) of this 30-50 day section. Each resource agency shall, after consultation with DGC, review establish standards for determining whether a 30-day or 50-day decision deadline will apply. DGC will complete a review by Day 30 only if all required permits must by statute or regulation be issued within 30 days. (b) An associate director within OMB or a division director within the coordinating agency may grant an extension of a consistency review as long as the consistency determination is Extension of made within any time limit imposed by federal law or regulation. review An extension and the reasons for @.t must be stated in writing and, except for an extension granted under (1) of this subsection, must be based on clear and convincing evidence of the need for the extension. The coordinating agency will notify the review participants and the applicant of the terms of an extension, The limits on extensions are (1) for a project located in the unorganized borough, the coordinating agency may, without a request, extend both the comment and decision deadlines by 10 days; (2) if a commenting agency requests time to perform a field review, the coordinating agency may extend the remaining deadlines by up to 1C-l' days; (3) if the project involves a disposal of interest in state land or 45 resources and DGC is the coordinating agency, it will, on DNR's request, extend both the comment and decision deadlines for a period necessary to most efficiently coordinate the consistency review and the DNR disposal process; (4) for a project which is subject to the Surface Mining Control and Reclamation Act of 1977, P.L. 95-87, 91 Stat. 445 (1977), 30 U.S.C. § 1201 et seq., the consistency review deadlines will be extended as necessary to conform to the requirements of that Act and AS 27.21; (5) if a public hearing is held as part of the consistency review process, or as part of a resource-agency review of a necessary permit, the coordinating agency may extend both the comment and decision deadlines as necessary; (6) if the coordinating agency requests additional information from the applicant as provided in 6 AAC 50.070, the agency may extend the remaining deadlines until the requested information has been received and deemed adequate by the requesting review participant. Within 7 days of receipt of the information by the requesting review participant, that participant shall notify the coordinating agency whether the information is adequate to find the project packet complete; (7) if the coordinating agency determines that a consensus among the resource agencies, any affected coastal resource district, and the applicant cannot be reached within a 50-day review period, it shall state in writing the issues or conditions which require additional time for review, and may extend the remaining deadlines for up to 15 days for each higher level of review provided in 6 AAC 50.070(k); (8) if the applicant requests an extension, the coordinating agency may extend the remaining deadlines as requested; (9) if & coordinating agency determines that the project involves unusually complex issues, it may extend the deadlines as necessary; if the deadline is extended under this paragraph, the agency shall by Day 50, or Day 30 of a 30-day review period, dist4ute to review participants, the applicant, and other commenting parties a written statement of the issues which remain to be resolved; the coordinating agency shall notify all interested parties promptly as issues are resolved. (c) All time periods in this chapter must be calculated using calendar days. An action required to be taken on a Saturday, SundaN', or state or federal holiday must be taken on or before the next working day. (Eff. 3/11/84, Register 89; am. 5/20/93, Register 126) Authority: AS 44.19.161 AS 46.40.010 AS 46.40.040 46 6 AAC 50.120. CONCLUSIVE CONSISTENCY DETERMINATION. (a) In rendering a conclusive consistency determination, the coordinating agency shall give careful Due consideration to all comments, and shall give due deference to the Deference comments of resource agencies and affected coastal districts with approved programs. "Due deference" means that deference which is appropriate in the context of the commenter's expertise and area of responsibility, and all the evidence available to support any factual assertions. A coastal resource district whose district program has been incorporated into the ACMP is considered to have expertise in the interpretation and application of its program. If the coordinating agency rejects a stipulation or recommendation requested by a commenting resource agency or affected coastal resource district with an approved program, within its respective area of expertise, the coordinating agency shall make a written finding stating the reasons for rejecting the stipulation. (b) The coordinating agency shall render a written conclusive Conclusive consistency determination before the decision deadline under 6 consistency AAC 50.070 or 6 AAC 50.110. The agency shall distribute its determination determination to the applicants and to all resource agencies, all other agencies which commented on the project, and all affected coastal resource districts. The determination must describe the scope of the project which was reviewed. If the project is determined to be consistent with the ACMP, the determination must state any conditions or stipulations and must identify the state or federal permits in which each stipulation must be included to ensure that the project is consistent with the ACMP. If a resource agency is the coordinating agency, it may include the determination in its approval or denial of eacii permit required for the project. (Eff. 3/11/84, Register 89; em am 5/1/90 - 8/9/9Cd, Register 114) Authority- AS 44.19.145(a) ArL IH, sec. 1, Ak. ConsL ArL M, sm 16, Ak. ConsL Art. M, sec- 24, Ak. ConsL 6 AAC 50.130. ISSUANCE OF PROJECT PERMITS. A resource agency shall issue a permit which is necessary for a project, except a lease, within five days after it issues or receives the conclusive consistency determination for that project, unless Permits issued the commissioner of that agency finds that additional review is within 5 days necessary to fulfill statutory responsibilities. A resource agency shall issue a lease at the time and in the manner provided by applicable law, regulation, and agency procedure, but not before 47 it issues or receives a conclusive consistency determination for the appropriate project. For a project which is deemed consistent, by either categorical approval of all necessary permits or a general concurrence determination, an agency shall issue a required perrrut as soon as possible in the time and manner prescribed by applicable statutes or regulations. A project permit must contain any applicable conditions or stipulations required by the conclusive consistency determination, and may not contain any additional condition or stipulation for the sole purpose of ensuring consistency. (Eff. 3/11/84, Register 89) Authority: AS 44.19.145(a) Art. III, sec. 1, Ak. Const. Art. III, sec. 16, Ak. Const. Art. 111, sec. 24, Ak. Const. 6 AAC 50.190. DEFINITIONS. In this chapter and in AS 44.19.145(a)(11) (1) "ACMP" means the Alaska Coastal Management Program, as amended, which was developed as ided in AS 46.40, 6 AAC 80, and 6 AAC 85, and approved provi by the Secretary of the United States Department of Commerce under authority of sec. 305 of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. \p 1454; (2) "affected coastal resource district" means a coastal resource district as defined in AS 46.40.210(2) in which a project is proposed to be located, or which may experience a direct and significant impact from a proposed project; (3) "approved program" means a coastal resource district program that has been approved by the Alaska Coastal Policv Council and filed by the lieutenant governor's office; (4) "consistency" means compliance with the standards of the ACMP, including the enforceable policies of an approved coastal resource district program; (5) "coordinating agency" means the agency responsible for coordinating and facilitating the review an@ rendering the determination; (6) "CZMA" means the federal Coastal Zone Management Act of 1972, as amended, 16 U.S.C. \p 1451 et seq.; (7) "DGC" means division of governmental coordination within the office of management and budget in the Office of the Governor; (8) "DNR" means the Department of Natural Resources; (9) "determination" or "consistency determination" or 11conclusive consistency determination" means (A) a document issued by the coordinating agency containing a brief description of the project, and the findings of the 48 consistency review together with any stipulations, conditions, or modifications to the project which must be attached to the applicable permits, and a brief Justification for those necessary modifications, conditions, or stipulations, and includes (B) a response to a consistency certification or determination required or authorized under the CZMA; (10) "direct and significant impact" means an effect of a project which will likely contribute or lead to a significant change in or alteration of the natural, social, cultural, or economic characteristics of a coastal resource district; (11) "disposal of interest in state land" means the sale, lease, or other disposition of state-owned or state-managed land or resources by the Department of Natural Resources; (12) "OMB" means the office of management and budget in the Office of the Governor; (13) "permit" means a permit, lease, authorization, license or any other determination necessary for completion of a project or a discrete phase of a project; (14) "project" means an activity or use which will be located in or may affect the coastal zone of Alaska and which is subject to consistency review under sec. 307 of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. § 1456), or which requires the issuance of one or more state permits; when a land or water activity is developed or authorized in discrete phases, and each phase requires agency decisions regarding permits, each phase is considerec' a "projectIl (15) "resource agency" mea-is the Alaska Department of Environmental Conservation, or the Alaska Department of Fish and Game, or the Alaska Department of Natural Resources; (16) "review" or "consistency review" means the evaluation of a project against the ACMP s-andards. (17) "review participant" means resource agencies, other state agencies on request and affected coastal districts; when a project includes an oil discharge prevention and contingency plan, review participant" includes an affected regional citizens advisory council as defined in 33 U.S.C. .2732(d). (Eff. 3/11/84, Register 89; ern am 5/1/90 - 8/9/90, Register 114; am 5/20/93, Register 126) Authority: AS 44.19.161 AS 46.40.010 AS 46.40.040 49 F r TITLE 6. GOVERNOR'S OFFICE ALASKA COASTAL POLICY COUNCIL CHAPTER 80. STANDARDS OF THE ALASKA COASTAL MANAGEMENT PROGRAM Article 1. Government Process (6 AAC 80.010-6 AAC 80.030) 2. Uses and Activities (6 AAC 80.040-6 AAC 80-120) 3. Resources and Habitats (6 AAC 80.130-6 AAC 80-150) 4. Areas Which Merit Special Attention (6 AAC 80.158.6 AAC 80.170) 5. General Provisions (6 AAC 80.900) Article 1. Government Process Section 10. Coverage of chapter 20. Public participation and information 30. Program management and coordination 6 AAC 80.010. COVERAGE OF CHAPTER. (a) This chapter contains standards for the use of and application by districts and state agencies in carr7ing out their responsibilities under the Alaska Coastal Management Act (AS 46.40, and AS 44.19.155 -44.19.162). (b) Nothing in this chapter or in any district program displaces State/local or diminishes the authority of any state agency or local authorities government with respect to resou:-ces in the coastal area. Uses and activities conducted by state agencies in the coastal area must be consistent with the applicable district program and the standards contained in this chapter. In authorizing uses or activities in the coastal area under its statutory authority, each state agency shall grant authorization if, in addition to finding that the use or activity complies v@-ith the agency's statutes and regulations, the agency finds that the use or activity is consistent with the applicable district program and the standards contained in this chapter. However, if the district program and the District program standards in this chapter both address the same operational subject or issue, the provisions of the district program are controlling. (c) At a minimum, the counc] will review this chapter annually. (Eff. 7/18/78, Register 67; am 9/9/81, Register 79) AuthoritV: AS 44.19.16C AS 46.40.04C AS 46.40.100 50 6 AAC 80.020. PUBLIC PARTICIPATION AND INFORMATION. (a) The council will provide adequate, effective, and continuing opportunities for public participation from the beginning of the Alaska coastal management program. The council will give notice of when and where opportunities for public participation will be provided before adoption of guidelines and standards, review and approval of district programs and amendments to district programs, and amendments to the Alaska coastal management program. (b) The council will not approve a district program or ificant amendment of a district program sign unless evidence of significant opportunities for public participation at the district level has been provided. (c) The council will make available to the public information and educational materials concerning coastal management, in understandable form, including (1) a guide for the development of district programs; (2) maps and narratives describing physical and biological characteristics to be used in establishing boundaries of coastal areas; (3) areas recommended for council designation as areas which merit special attention; (4) maps showing the distribution and abundance of coastal fish and wildlife species with commercial, recreational, subsistence, or general ecological importance; (5) an identification of major data and information sources concerning coastal management; (6) a summary of information regarding coastal regions; (7) summaries of public hearings and workshops; (8) films and slide programs; (9) written material summarizing or explaining the Alaska coastal management program; and (110)) the council's annual report to the legislature. (d) At public meetings concerning the Alaska coastal management program, the council will ensure that, when requested and reasonably necessan', translation into the appropriate Native language is provided. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.040 5 1 6 AAC 80.030. PROGRAM MANAGEMENT AND COORDINATION. (a) The division of governmental coordination of the Office of Management and Budget is the DGC designated lead agency for the Alaska Coastal Management lead agency Program. The division of governmental coordination of the Office of Management and Budget shall (1) present the staff position regarding matters before the council; (2) coordinate the activities of state agencies participating in the Alaska coastal management program; and (3) review state and federal actions for consistency with the Alaska coastal management program, as provided in 6 AAC 50. (b) The council will initiate an interagency program of comprehensive resource management for each geographic region listed in AS 44.19.155. Regional programs will Regional program (1) assist the council and districts in identifying uses of state concern and developing management policies for these uses; (2) provide resource, social, and economic information on a coordinated regional basis; and (3) assist the council and districts in identifying, avoiding, or minimizing existing or potential conflicts. (c) Plans and recommendations developed as part of the regiona I program described in (b) of this section must be transmitted to the district through the division of governmental coordination. District planning efforts must demonstrate review and consideration of these plans and recommendations. If the final district program proposed does not agree with the regional program plans and recommendations, the differences will be resolved by the council. (d) The council will prepare a manual of standards for the management of land and water uses in the coastal area to assist in the development of district and state agency programs. (Eff. 7/18/78, Register 67; am 1%'4/28/84, Register 92) Authority: AS 44.19.145(a) AS 44.19.161 AS 46.40.040 52 Article 2. Uses and Activities Section 40. Coastal Development 50. Geophysical h27, d areas 60. Recreation 70. Energy facilities 80. Transportation and utilities 90. Fish and seafood processing 100. Timber harvest and processing 110. Mining and mineral processing 120. Subsistence 6 AAC 80.040. COASTAL DEVELOPMENT. (a) In planning for and approving development in coastal areas, districts and state agencies shall give in the following order, priority to: (1) water-dependent uses and activities; (2) water-related uses and activities; and (3) uses and activities which are neither water-dependent nor water-related for which there is no feasible and prudent Public need inland alternative to meet the public need for the use or activity. (b) The placement of structures and the discharge of dredged or fill material into coastal water must, at a minimum, comply Dredge/Fill with the standards contained in Parts 320-323, Title 33, Code of Federal Regulations (Vol. 42 of the Federal Register, pp. 37133 - 47 Uuly 19, 1977)). (Eff. 7/18/78, Register 67; am 8/18/79, Register 71) Authority: AS 44.19.10 AS 46.40.040 6 AAC 80.050. GEOPHYSICAL HAZARD AREAS. (a) Districts and state agencies shall identify known geophysical hazard areas and areas of high development potential in which there is a substantial possibility that geophysical hazards may occur. (b) Development in areas identified under (a) of this section may not be approved by the appropriate state or local authoritv Siting/Design until siting, design, and construction measures for minimizing property damage and protecting against loss of life have been provide@. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.040 53 6 AAC 80.060. RECREATION. (a) Districts shall designate areas for recreational use. Criteria for designation of areas of recreational use are (1) the area receives significant use by persons engaging in recreational pursuits or is a major tourist destination; or (2) the area has potential for high quality recreational use because of physical, biological, or cultural features. (b) Districts and state agencies shall give high priority to maintaining and, where appropriate, increasing public access to Public access coastal water. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71) Authority: AS 44.19.161 AS 46.40.040 6 AAC 80.070. ENERGY FACILITIES. (a) Sites suitable for the development of major energy facilities must be identified by districts and the state in cooperation with districts. (b) The siting and approval of major energy facilities by districts and state agencies must be based, to the extent feasible and prudent, on the following standards: (1) site facilities so as to minimize adverse environmental and social effects while satisfying industrial requirements; (2) site facilities so as to be compatible with existing and subsequent adjacent uses and projected community needs; (3) consolidate facilities; (4) consider the concurrent use of facilities for public or economic reasons; (5) cooperate with landowners, developers, and federal agencies in the development of facilities; (6) select sites with sufficient acreage to allov@, for reasonable expansion of facilities; (7) site facilities where existing infrastructure, including roads, docks, and airstrips, is capable of satisfying industrial requirements; (8) select harbors and shipping routes with least exposure to reefs, shoals, drift ice, and other obstructions; (9) encourage the use of vessel traffic control and collision avoidance systems; (10) select sites where development 'will require minimal site clearing, dredging and construction in productive habitats; 54 site facilities so as to minimize the probability, along shipping routes, of spills or other forms of contamination which would affect fishing grounds, spawning grounds, and other biologically productive or vulnerable habitats, including marine mammal rookeries and hauling out grounds and waterfowl nesting areas; (12) site facilities so that design and construction of those facilities and support infrastructures in coastal areas of Alaska will Fish allow for the free passage and movement of fish and wildlife with passage due consideration for historic migratory patterns and so that areas of particular scenic, recreational, environmental, or cultural value w ill be protected; (13) site facilities in areas of least biological productivity, diversity, and vulnerability and where effluents and spills can be controlled or contained; (14) site facilities where winds and air currents disperse airborne emissions which cannot be captured before escape into the atmosphere; (15) select sites in areas which are designated for industrial purposes and where industrial traffic is minimized through population centers; and (16) select sites where vessel movements will not result in overcrowded harbors or interfere with fishing operations and equipment. (c) Districts shall consider that the uses authorized by the issuance of state and federal leases for mineral and petroleum resource extraction are uses of state concern. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71) Authority: AS 44.19.161 AS 46.40.040 6 AAC 80.080. TPLANSPORTATION AND UTILITIES. (a) Transportation and utility routes and facilities in the coastal area must be sited, designed, and constructed so as to be compatible with district programs. (b) Transportation and utility routes and facilities must be sited inland from beaches and shorelines unless the route or facility is wat er-depen dent or no feasible and prudent inland alternative exists to meet the public need for the route or facility. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71) Authorin% AS 44.19.161 AS 46.40.040 55 6 AAC 80.090. FISH AND SEAFOOD PROCESSING. Districts shall identify and may designate areas of the coast suitable for the location or development of facilities related to commercial fishing and seafood processing. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.040 6 AAC 80.100. TIMBER HARVEST AND PROCESSING. AS 41.17, Forest Resources and Practices, and the regulations and procedures adopted under that chapter with respect to the harvest and processing of timber, are incorporated into the Alaska coastal management program and constitute the components of the coastal management program with respect to those purposes. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71; am 3/30/84, Register 89) Authority: AS 44.19.161 AS 46.40.040 (Note: AS 41.17 was amended in 1990. The revised FPA regulations were incorporated into the ACMP effective August 4, 1993.) 6 AAC 80.110. MINING AND MINERAL PROCESSING. (a) Mining and mineral processing in the coastal area must be regulated, designed, and conducted so as to be compatible vvith the standards contained in this chapter, adjacent uses and activities, statewide and national needs, and district programs. (b) Sand and gravel may be extracted from coastal waters, intertidal areas, barrier islands, and spits, when there is no feasible Sand/gravel and prudent alternative to coastal extraction which will meet the extraction public need for the sand or gravel. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71) Authority: AS 44.19.161 AS 46.40.040 56 6 AAC 80.120. SUBSISTENCE. (a) Districts and state agencies shall recognize and assure opportunities for subsistence usage of coastal areas and resources. (b) Districts shall identify areas in which subsistence is the Identified dominant use of coastal resources. areas (c) Districts may, after consultation with appropriate state agencies, Native corporations, and any other persons or groups, designate areas identified under (b) of this section as subsistence zones in which subsistence uses and activities have priority over all nonsubsistence uses and activities. (d) Before a potentially conflicting use or activity may be authorized within areas designated under (c) of this section, a st udy of the possible adverse impacts of the proposed potentially conflicting use or activity upon subsistence usage must be conducted and appropriate safeguards to assure subsistence usage must be provided. (e) Districts sharing migratory fish and game resources must submit compatible plans for habitat management. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.040 Article 3. Resources and Habitats Section 130. Habitats 140. Air, land and water quality 150. Historic, prehistoric, and archaeological resources 6 AAC 80.130. HABITATS. (a) Habitats in the coastal area which are subject to the Alaska coastal management program include (1) offshore areas; (2) estuaries; (3) wetlands and tideflats; (4) rocky islands and seacliffs; (5) barrier islands and lagoons; (6) exposed high energy coasts; (7) rivers, streams, and lakes; and (8) important upland habitat. 57 (b) The habitats contained in (a) of this section must be managed so as to maintain or enhance the biological, physical, and chemical characteristics of the habitat which contribute to its capacity to support living resources, (c) In addition to the standard contained in (b) of this section, the following standards apply to the management of the following habitats: (1) offshore areas must be managed as a fisheries Offshore areas conservation zone so as to maintain or enhance the state's sport, commercial, and subsistence fishery; (2) estuaries must be managed so as to assure adequate Estuaries water flow, natural circulation patterns, nutrients, and oxygen levels, and avoid the discharge of toxic wastes, silt, and destruction of productive habitat. (3) wetlands and tideflats must be managed so as to assure Wetlands adequate water flow, nutrients, and oxygen levels and avoid adverse effects on natural drainage patterns, the destruction of important habitat, and the discharge of toxic substances; (4) rocky islands and seacliffs must be managed so as to Islands and seacliff's avoid the harassment of wildlife, destruction of important habitat, and the introduction of competing or destructive species and predators; (5) barrier islands and lagcons must be managed so as to Barrier islands maintain adequate flows of sediments, detritus, and water, avoid andlagoons the alteration or redirection of wave energy which would lead to the filling in of lagoons or the erosion of barrier islands, and discourage activities which would decrease the use of barrier islands by coastal species, including polar bears and nesting birds; (6) high energy coasts must be managed by assuring the High energy coasts adequate mix and transport of sediments and nutrients and avoiding redirection of transport processes and wave energy; and (7) rivers, streams, and lakes must be managed to protect Rivers, streams natural vegetation, water qualit.,@, important fish or wildlife and lakes habitat and natural water flow. (d) Uses and activities in the coastal area which will not conform to the standards contained in (b) and (c) of this section may be allowed by the district or appropriate state agency if the follo,vk-ing are established: there is a significant public need for the proposed use or activitv; (2) there is no feasible prudent alternative to meet the public need for the proposed use or activity which would conform to the standards contained in (b) and (c) of this section; and 0 58 (3) all feasible and prudent steps to maximize conformance with the standards contained in (b) and (c) of this section will be taken. (e) In applying this section, districts and state agencies may use appropriate expertise, including regional programs referred to in 6 AAC 80.030(b). (Eff. 7/18/78, Register 67) Authority: AS 44-19.161 AS 46.40.040 6 AAC 80.140. AIR, LAND, AND WATER QUALITY. Notwithstanding any other provision of this chapter, the statutes pertaining to-and the regulations and procedures of the Alaska Department of Environmental Conservation with respect to the protection of air, land, and water quality, in effect on August 18, 1992, are incorporated into the Alaska coastal management program and, as administered by that agency, constitute the components of the coastal management program with respect to those purposes. (Eff. 7/18/78, Register 67; am 5/20/93, Register 126) Authority: AS 44.19.161 AS 46.40.010 0 AS 46.40.040 6 AAC 80.150. HISTORIC, PREHISTORIC, AND ARCHAEOLOGICAL RESOURCES. Districts and appropriate state agencies shall identify areas of the coast which are important to the studv, understanding, or illustration of national, state, or local history or prehistory. (Eff. 7/18/78, Register 67) Authoritv: AS 44.19.161 AS 46.40.040 0 59 Article 4. Areas Which Merit Special Attention Section 158. Types of areas to be designated as areas which merit special attention 160. Areas which merit special attention inside districts 170. Areas which merit special attention outside districts 6 AAC 80.158. TYPES OF AREAS TO BE DESIGNATED AS AREAS 'WHICH MERIT SPECIAL ATTENTION. An area to be designated as an area which merits special attention may include the following, in addition to the categories contained in AS 46.40.210(l): (1) areas important for subsistence hunting, fishing, food gathering, and foraging; (2) areas with special scientific values or opportunities, including those areas where ongoing research projects could be jeopardized by development or conflicting uses and activities; and (3) potential estuarine or marine sanctuaries. (Eff. 6/9/85, Register 94) Authoritv: AS 44.19.161 AS 46.40.040 Editor's Note. Before 6/9/85, Register 94, the substance of 6 AAC 80.158 was contained in 6 AAC K. 16C. The history of AAC 8C. 160 is not reflected in the history note for 6 AAC 80.158. 6 AAC 80.160. AREAS WHICH MERIT SPECIAL ATTENTION INSIDE DISTRICTS. (a) A person may recommend, to a district, areas inside the district to be nominate@ to the council as areas which merit special attention. A district District may nominate, in a district program or as a significant nomination amendment to its program, areas which merit special attention. Council designation of areas which merit special attention inside districts will be in accordance with the procedures for approval of district programs, or significant amendments to district programs, as described in 6 AAC 85. A nomination of an area which merits special attention must include the following information: 60 (1) the basis or bases for designation under AS 46.40.210(l) Basis for or 6 AAC 80.158; designation (2) a map showing the geographicallo cation, surface area and, if appropriate, bathymetry of the area, along with a legal and narrative description of the boundaries and a justification of the size of the area which merits special attention; (3) a description of the area which includes dominant physical and biological features; (4) the existing ownership, jurisdiction, and management status of the area, including existing uses and activities; (5) the existing ownership, Jurisdiction, and management status of adjacent shoreland and sea areas, including existing uses and activities; (6) present and anticipated conflicts among uses and activities within or adjacent to the area, if any; and (7) a proposed management plan, consisting of the following: (A) a description of the uses and activities that will be considered proper, and the uses and activities that will be considered improper, with respect to land and water within the area, and the rationale for the designate of proper and improper uses; (B) a statement of the specific, enforceable policies that will be applied in managing the area-, and (C) an identification of the authority that will be used to implement the proposed management plan. (b) A management plan for an area which merits special attention inside a district must preserve, protect, enhance, or restore the value or values for which the area was designated. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71; am 6/9/85, Register 94; am 4/2/86, Register 97) Authoritv: AS 44.19.161 AS 46.40.040 6 AAC 80.170. AREAS WHICH MERIT SPECIAL ATTENTION OUTSIDE DISTRICTS. (a) A person may Recommenda- recommend to the council an area that is within the coastal area tion to but outside a coastal resource district, to be designated as an area Council which merits special attention. A recommendation to the council of an area which merits special attention outside a district must include the following information: 61 (1) a map showing the geographical location of the area, as well as a legal and narrative description of the boundaries, and a justification of the size of the area which merits special justification attention; (2) a summary of the resource values and use conflicts, if any, in the area; (3) a statement of the purpose and objectives to be met through planning for an area which merits special attention; (4) a tentative schedule outlining timeframes for completion of planning tasks and reviews; (5) a list of parties with interests in or adjacent to the proposed area which merits special attention who may be affected by its designation, and a description of how these parties would be involved in plan development; and (6) justification that the area which merits special attention is the preferred planning and management mechanism for meeting the objectives of the proposal and the Alaska coastal management program. (b) Upon receipt of a recommendation for an area which merits special attention outside cf a district, the division of governmental coordination (DGC) of the office of management and budget shall place the recommendation on the council's Council agenda for consideration at its next regularly scheduled meeting, consideration and shall give notice of a public hearing. DGC shall give direct notice to the affected parties identified in (a)(5) of this section. DGC shall make the recommendation available for public inspection at the time of the notice of the public hearing. The 11 will make an initial finding, detailing its reasons to *ther counc ei authorize additional planning for the area which merits special attention outside a district, or to reject the recommendation. The council's determination to authorize additional planning for the area which merits special attention may not be construed as council approval of the merits of t',"Ie final plan. (c) If the council decides to auth:)rlze further planning for an area which merits special attention, public notice will be provided by conspicuous advertisement, such as display notice, in a news publication of general circulation in the affected area and in one of general circulation in the state. DGC, with assistance from the sponsor, shall compile a mailing list of state and federal agencies, affected municipalities and villages, landowners, and other interested parties and shall notify therri that planning for the area which merits special attention is gcing to occur. (d) The sponsor of the nornination is responsible for Public review developing a public review draft for the area which merits draft 62 special attention outside of a district. The review draft must include the information required under 6 AAC 80.160(a)(1) 40 through (7), in addition to the following: (1) an evaluation of the potential impacts of the designation on the social, cultural, environmental, and economic features of the area and adjacent areas; (2) The proposed management plan required under 6 AAC 160(a)(7) must include a description of how the proposed management plan will be implemented. (e) A management plan for an area which merits special attention outside a district must preserve, protect, enhance, or restore the value or values for which the area is designated. (f) The sponsor shall provide opportunities for consultation on and review of the proposal by appropriate state, federal, and local governmental agencies, affected landowners, and other persons Public who have been identified as interested parties under (c) of this meetings section. The sponsor shall hold no less than two public meetings during plan development to inform the public and receive comments concerning the plan. (g) The sponsor of the area which merits special attention shall distribute a public review draft to all parties identified under (c) of this section. The public review draft must contain all elements listed in (d) of this section, as well as evidence that the public participation requirements of this section have been satisfied. The sponsor shall provide at least a 60-day review period. The sponsor shall send with the public review draft a transmittal letter that identifies the comment deadline and the recipient of comments. The sponsor shall publish notice of the availability of the public review draft for review and comment, including advertising in news publications that are circulated in the area affected by the nomination and in news publications that are circulated statewide. The sponsor shall also post a notice prominently in municipalities and villages affected by the proposal. (h) After the close of the public review and comment period, Revised the sponsor of the area which merits special attention shall revise draft the public review draft as necessan, to incorporate comments received. Council review of the area which merits special attention will begin upon the sponsor's submission of the revised draft to the council. (1) DGC shall distribute the council review draft, along with its preliminary findings on the plan, to the mailing list compiled under (c) of this section. A person may submit comments on the area which merits special attention nomination to the council within 6V- days after this distribution. Comments that are not received within the 6'0-day review period will not be considered. 6 3 DGC shall prepare a summary of and a response to comments received on the council review draft and, if necessary, revise its recommendations. DGC shall distribute these materials to all parties who commented on the draft. All comments and additional material submitted will be placed in a record file maintained by DGC. (k) The council will, after public notice, hold a public hearing Council on the designation of the area which merits special attention. designation The council will approve the designation of an area which merits special attention if it (1) is substantially consistent with the requirements of this section; (2) does not arbitrarily or unreasonably restrict or exclude uses of state concern, except as allowed in AS 46.40.070(c); (3) does not violate another state law; and (4) does not cause substantial irreparable harm to another interest or value in the coastal area. The council's decision to designate, or not designate, the area which merits special attention outside of a district will contain findings and conclusions based on the requirements listed in this subsection. (m) DGC shall provide public notice of the council's action designating an area which merits special attention outside of a district by distributing a copy of the council's order to all persons Public notice who testified or submitted timely written statements during of action public review, and to all persons who requested a copy of the order in writing. DGC shall also publish notice of the council's action, at a minimum, in news publications that are circulated within the affected region and L-i news publications that are circulated statewide. (n) The council's designation of an area which merits special attention outside of a district takes effect for state law purposes as part of the Alaska coastal management program upon the lieutenant governor's filing of the council's order approving the designation. (Eff. 6/9/85, Register 94; am 4/2/86, Register 97) Authoritv: AS 44.19.161 AS 46.40.04C 64 Article 5. General Provisions Section 900. Definitions 6 AAC 80.900. DEFINITIONS. (a) Unless the context indicates otherwise, in this chapter (1) "barrier islands and lagoons" means depositional coastal environments formed by deposits of sediment offshore or coastal remnants which form a barrier of low-lying islands and bars protecting a salt-water lagoon with free exchange of water to the sea; (2) "coastal water" means all water bodies in the coastal area, including wetlands and the intertidal area; (3) "council" means the Alaska Coastal Policy Council; (4) "district" means a coastal resource district as defined in AS 46.40.210(2); (5) "district program" means a district coastal management program; (6) "estuary" means a serniclosed coastal body of water which has a free connection with the sea and within which seawater is measurably diluted with freshwater derived from land drainage; (7) "exposed high-energy coasts" means open and unprotected sections of coastline with exposure to ocean generated wave impacts and usually characterized by coarse sand, gravel, boulder beaches, and well-mixed coastal water; (8) "facilities related to commercial fishing and seafood processing" includes hatcheries and related facilities, seafood processing plants and support facilities, marine industrial and commercial facilities, and aquaculture facilities; (9) "geophysical hazard areas" means those areas which present a threat to life or property from geophysical or geological hazards, including flooding, tsunami run-up, storm surge run-up, landslides, snowslides, faults, ice hazards, erosion, and littoral beach process; (10) "mining and mineral processing" means the development of mineral resources extracted in tidal rivers, coastal water, and on continental shelves of the open sea, and found in surface, subsurface, and aqueous deposits; (11) "offshore areas" means submerged lands and waters seaward of the coastline; (12) "rocky islands and seacliffs" means islands of volcanic or tectonic origin with rocky shores and steep faces, offshore rocks, capes, and steep rocky seafronts; 65 (13) "tideflats" means mostly unvegetated areas that are alternately exposed and inundated by the falling and rising of the tide; (14) "transportation and utility routes and facilities" include power transmission lines, mineral slurry lines, oil and gas pipelines, land and marine corridors, railways, highways, roadways, air terminals, water and sewage transfer, and facilities required to operate and maintain the route or facility; (15) "upland" means drainages, aquifers, and land, the use of which would have a direct and significant impact on coastal water; (16) "uses of state concern" has the same meaning as in AS 46.40.210(6); (17) "water-dependent" means a use or activity which can be carried out only on, in, or adjacent to water areas because the use requires access to the water body; (18) "watcr-related" means a use or activity which is not directly dependent upon access to a water body, but which provides goods or services that are directly associated with water-dependence and which, if not located adjacent to water, would result in a public loss of quality in the goods or services offered; (19) "wetlands" includes both freshwater and saltwater wetlands; "freshwater wetlands" means those environments characterized by rooted vegetation which is partially submerged either continuously or periodically by surface freshwater with less than .5 parts per thousand salt coment and not exceeding three meters in depth; "saltwater wetlands" means those coastal areas along sheltered shorelines characterized by halophilic hydrophytes and macroalgae extending from extreme low tide to an area above extreme high tide which is influenced by sea spray or tidally induced water table changes; (20) "feasible and prudent" means consistent with sound engineering practice and not causing environmental, social, or economic problems that outweigh the public benefit to be derived from compliance with the standard which is modified by the term "feasible and prudent"; (21) "including" means including but not limited to; (22) "major energy facility" includes marine service bases and storage depots, pipelines and rights-of-way, drilling rigs and platforms, petroleum or coal separation, treatment, or storage facilities, liquid natural gas plants and terminals, oil terminals and other port development for the transfer of energy products, Ad1h, petrochemical plants, refineries and associated facilities, hydroelectric projects, other electric generating plants, lw@ transmission lines, uranium enrichment or nuclear fuel processing 66 facilities, and geothermal facilities; "major energy facility" means a development of more than local concern carried out in, or in close proximity to, the coastal area, which meets one or more of the following criteria: (A) a facility required to support energy operations for exploration or production purposes; (B) a facility used to produce, convert, process, or store energy resources or marketable products; (C) a facility used to transfer, transport, import, or export energy resources or marketable products; (D) a facility used for in-state energy use; or (E) a facility used primarily for the manufacture, production, or assembly of equipment, machinery, products, or devices which are involved in any activity described in (A) - P) of this paragraph; (23) "significant amendment" means an amendment to an approved district program which (A) results in a major revision, addition or deletion to the policies or implementation methods or authorities included in the district program under 6 AAC 85.090 and 6 AAC 85.100; (B) alters the district boundaries, other than by technical adjustments; (C) designates an area which merits special attention or alters an existing area which merits special attention designation; or (D) restricts or excludes a use of state concern not previously restricted or excluded; (24) "area which merits special attention" has the same meaning as in AS 46.40.210(l); (25) "village" has the same meaning as in AS 46.40.180(d). (b) In AS 44.19.155, "deputy commissioner" includes assistant commissioners of state agencies. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71; am 9/9/81, Register 79; am 6/9/85, Register 94; am 10/16/87, Register 104) Authority: AS 44.19.160(4) AS 44.19.161 AS 46.40.010(c) AS 46.4C.03C AS 46.40.040 AS 46.40.060 AS 46.40.07C 67 AM.. .qmw G or -l/ TITLE 6. GOVERNOR'S OFFICE ALASKA COASTAL POLICY COUNCIL CHAPTER 85. GUIDELINES FOR DISTRICT COASTAL MANAGEMENT PROGRAMS Article 1. Program Elements (6 AAC 85.010-6 AAC 85.110) 2. Government Process (6 AAC 85.120-6 AAC 85.185) 3. General Provisions (6 AAC 85.900) Article 1. Program Elements Section Section 10. Coverage of chapter 70. Subject uses 20. Needs, objectives, and goals 80. Proper and improper uses 30. Organization 90. Policies 40. Boundaries 100. Implementation 50. Resource inventory 110. Public participation 60. Resource analysis 6 AAC 85.010. COVERAGE OF CHAPTER. (a) This chapter contains guidelines for the use of and application by districts in carrying out their responsibilities under the Alaska Coastal Management Act (AS 46.40 and AS 44.19.891 - 44,19.894). (b) At a minimum, the council will review this chapter annually. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.020. NEEDS, OBJECTIVES AND GOALS. Each district program must include a statement of the district's overall coastal management needs, objectives, or goals, or the district's comprehensive land and resource use plan. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 68 6 AAC 85.030. ORGANIZATION. (a) Each district program must include a description of the district program organization for coastal management. Budgetary and staff needs and, where appropriate, a schedule for necessary reorganization must be included. (b) The district program must clearly state the name and address of the individual or organization within the district that is assigned to receive from the state notice of proposed activities and authorizations affecting the district, and that is responsible for responding to the state on consistency reviews. (Eff. 7/18/78, Register 67; am 3/2/84, Register 89) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.040. BOUNDARIES. (a) Each district must include a map of the boundaries of the coastal area within the district subject to the district program. Boundaries must enclose those lands which would reasonably be included in the coastal area and subject to the district program if they were not subject to the exclusive jurisdiction of the federal government. (b) Before council approval of the district program, initial boundaries must be based on Biophysical Boundaries of Alaska's Coastal Zone (published by the Office of Coastal Management and the Alaska Department of Fish and Game, 1978, a copy of which is on file with the Office of the Lieutenant Governor, and which is available from the Office of Coastal Management) and must include the zone of direct interaction and the zone of direct influence. (c) Final boundaries of the coastal area subject to the district program may diverge from the initial boundaries if the final boundaries (1) extend inland and seaward to the extent necessary to manage uses and activities that have or are likely to have a direct and significant impact on marine coastal water; and (2) include all transitional and intertidal areas, salt marshes, saltwater wetlands, islands, and beaches. (d) If the criteria in (c) of this section are met, final boundaries of the coastal area subject to the district program may be based on political jurisdiction, cultural features, planning areas, watersheds, topographic features, uniform setbacks, or the dependency of uses and activities on water access. 69 (e) The boundaries of the district must be sufficiently compatible with those of adjoining areas to allow consistent administration of the Alaska coastal management program. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71) Authority: AS 44.19.161 AS 46.40.040 6 AAC 85.050. RESOURCE INVENTORY. Each district program must include a resource inventory which describes, in a manner sufficient for program development and implementation (1) habitats listed in 6 AAC 80.130 that are found within or adjacent to the district; (2) major cultural resources that are found within or adjacent to the district; (3) major land and water uses and activities which are conducted within or adjacent to the district; (4) major land and resource ownership and management responsibilities within or adjacent to the district; and (5) major historic, prehistoric, and archaeological resources which are found within or adjacent to the district. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.060. RESOURCE ANALYSIS. Each district program must include a resource analysis which describes, in a manner sufficient for program development and implementation (1) significant anticipated changes in the matters identified under 6 AAC 85.050; (2) an evaluation of the environmental capability and sensitivity of resources and habitats, including cultural resources, for land and water uses and activities; and (3) an assessment of the present and anticipated needs and demands for coastal habitats and resources. (Eff. 7/18/78, Register 67) Authority- AS 44.19.161 AS 46.40.040 AS 46.40.030 70 6 AAC 85.070. SUBJECT USES. Each district program must include a description of the land and water uses and activities which are subject to the district program. The uses and activities mentioned in 6 AAC 80 are, if applicable, subject to the district program. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.080. PROPER AND IMPROPER USES. Each district program must include a description of the uses and activities, including uses of state concern, that will be considered proper, and the uses and activities, including uses of state concern, that will be considered improper within the coastal area, including land and water use designations. This description must be based on the district's statement of overall needs, objectives, or goals, or the district's comprehensive land and resource use plan, under 6 AAC 85.020, and must be consistent with the standards contained in 6 AAC 80. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.090. POLICIES. (a) Each district program must include the policies that will be applied to land and water uses and activities subject to the district program, and the process which will be used to determine whether specific land and water uses and activities will be allowed. It shall be the general policy of the district to approve specific proposals for uses and activities within areas designated for those uses and activities under 6 AAC 85.080. Districts shall use existing means appropriate for the evaluation of specific proposals to the greatest extent feasible and prudent. Policies and procedures under this section must be consistent with the standards contained in 6 AAC 80 and must meet the following criteria: (1) comprehensiveness, so as to apply to all uses, activities, and areas in need of management; (2) specificity, so as to allow clear under standing of who will be affected by the district program, how they will be affected, and whether specific proposals for land and water uses 71 and activities will be allowed; and (3) enforceability, so as to insure implementation of and adherence to the district program. (b) All policies or enforceable rules of the district program must be clearly identified and located in a single section of the program document. The identified policies or enforceable rules will provide the basis for all determinations of consistency with the approved district program, (Eff. 7/18/78, Register 67; am 3/2/84, Register 89) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.100. IMPLEMENTATION. Each district program must include a descripticn of the methods and authority which will be used to implement the district program. Methods and authority must be adequate to insure program implementation, and any additional methods or authority which are required must be specified. Methods and authority include land and water use plans, municipal ordinances and resolutions, (including shoreline, zoning, and subdivision ordinances and building codes), state and federal statutes and regulations, capital improvement programs, the purchase, sale, lease, or exchange of coastal land and water resources, cooperative agreements, tax exemptions for nondevelopment purchase of development rights, memoranda of understanding, and coordinated project or permit review procedures. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.110. PUBLIC PARTICIPATION. Each district program must include evidence of effective and significant opportunities for public participation in program development under 6 AAC 85.130. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.030 72 Article 2. Government Process Section 120. Submittals to council 130. Public involvement during program development 140. Coordination and review 145. Review of public hearing draft 150. Council review of district programs 170. Mediation 180. Effective date and local adoption 185. Petition for amendment to an approved district program regarding uses of state concern 6 AAC 85.120. SUBMITTALS TO COUNCIL. (a) During program development, districts shall submit brief annual progress reports concerning program development to the council. (b) Following adoption of the final program under 6 AAC District annual 85.18o(b), districts shall submit brief annual progress reports reports concerning program implementation to the council. The council will furnish copies of annual progress reports to any interested party upon request. An annual progress report must be submitted by December 31 of each year and must include (1) a statement describing the district's progress in fulfilling any conditions stipulated at the time of the council's approval of the district program; (2) a summary, on forms provided by the Office of Coastal Management, of significant district land and water use decisions and enforcement actions taken during the year; (3) a description of routine program implementation during the year; (4) additional details of the district program implementation, including the district's response to council recommendations made either at the time the district program was approved or as part of the council's continuing review after approval of the program; and (5) identification of any problems encountered in implementing the district program and recommendations for solution of the problems. (c) After conceptual approval as described in (d) of this section, a district program must be submitted to the council for approval as provided in 6 AAC 85.150, and a significant Significant amendment to a district program must be submitted to the amendment council, through the Office of Coastal Management, for approval. The Office of Coastal Management will review proposed amendments to determine if council approval is 73 required. The coastal resource district may make a recommendation on whether council approval oi a proposed amendment is required when the amendment to the district program is submitted to the office. If the office determines that council approval is required, the procedures set out in 6 AAC 85.150 apply. The office's determination is subject to council review when requested by a council member or the coastal resource district. Amendments to the district program determined not to require council approval are matters of routine program implementation. Matters of routine program Routine program implementation will be considered incorporated into the implementation district program without further council action. Timelv notification of matters of routine program Implementation w1il be made to the council and appropriate state and federal agencies by the Office of Coastal Management. (d) Before submitting a district program or a significant amendment to a district program for approval, a district shall conceptually approve the district program or amendment by Conceptual approval resolution of the district's governing body. However, a coastal resource service area shall conceptually approve the district program or amendment by resolution of the coastal resource service area board. (Eff. 7/18/78, Register 67; am 5/2/81, Register 78; am 9/9/81, Register 79; am 3/2/84, Register 89) Authority: AS 44.19.160 AS 46.4C.040 AS 44.19.162 AS 46.4C.060 AS 46.40.010 AS 46.40.070 AS 46.40.030 6 AAC 85.130. PUBLIC INVOLVEMENT DURING PROGRAM DEVELOPMENT. ',a) Districts shall provide publicly advertised opportunities for public involvement in the development of all program elements contained in 6 AAC 85.020 - 6 AAC 85.110. (b) No less than two public meetings must be held within the 0 district during program development to inform the public and receive comments concerning the program. A brief summary or report of the matters considered at the public meeting held under this subsection must be prepared by the district, made available to the public, and retained for inclusion in the record file referred to in 6 AAC 85.150. (c) Districts shall provide the public, in a timely manner and in understandable form, information explaining the district coastal management program, the requirements of public participation in program development, how and when the 74 public may participate in program development, what information is available, and where that information may be 40 obtained. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71; am 3/2/84, Register 89) Authority: AS 44.19.161 AS 46.40.040 6 AAC 85.140. COORDINATION AND REVIEW. Districts shall provide opportunities for coordination and review by federal, state, and local governmental agencies, including ad)acent districts, and other persons with a significant interest in coastal resources or who are conducting or may conduct uses and activities that have or are likely to have a direct and significant impact on the district's coastal area. (Eff. 7/18/78, Register 67) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.145. REVIEW OF PUBLIC HEARING DRAFT. (a) This section applies to district programs and significant amendments to district programs. (b) A public hearing draft of the district program must be distributed to all parties identified as having a significant interest in the district program, including those parties described in 6 AAC 85.140. The mailing list of these parties must be reviewed and approved by the Office of Coastal Management. The public hearing draft must include all elements to be included in the district program when it is conceptually approved. At least a 60-day review period must be provided. A transmittal letter that states the comment deadline 60 day review and the recipient of comments must be sent with the document. One or more review meetings may be sponsored by the Office of Coastal Management, with the concurrence of the district. (c) Public notice of the availability of the document must be given to any person who has requested it in writing, and Public notice through conspicuous advertisement in a newspaper of general circulation within the district. Notice must also be posted in villa ges and municipalities within the district. Comments received by the deadline must be considered by the district and, 75 where appropriate, incorporated into the plan before conceptual approval. (d) A public hearing on the district program must be held Public hearing before conceptual approval is given and no sooner than 30 days after distribution and notice of the public hearing draft under (b) and (c) of this section. Notice specifying time and place of the hearing must be provided to all who were provided the public hearing draft, and also by conspicuous advertisement in a newspaper of general circulation within the district and by advertisement in a newspaper of general circulation within the state. Notice must be given at least 30 days before the hearing is held. (e) At the public hearing, each person must be given the opportunity to present statements orally or in writing. Districts shall insure that translation into the appropriate native languages is provided. A written transcript or electronic recording of the public hearing must be provided to the council. Comments offered at the hearing must be considered by the district and, where appropriate, incorporated into the plan before conceptual approval. (f) Districts must give conceptual approval to their district Conceptual approval program before the program is submitted to the council. District programs must be adopted by resolution of the district's governing body except that coastal resource service area plans must be adopted by resolution of the board. (Eff. 3/2/84, Register 89) Authority: AS 44.19.161 AS 46.40.030 AS 46.40.040 6 AAC 85.150. COUNCIL REVIEW OF DISTRICT PROGRAMS. (a) A district may prepare findings and conclusions on its progfam, based on AS 46.40.030, 46.40.060, 46.40.080, and the standards set out in this chapter. (b) At least one copy of the district's conceptually approved Concept-approved program, including any changes made to the public hearing draft draft, and the district's findings and conclusions or a written statement indicating that the district has elected not to prepare findings and conclusions, must be forwarded to the Office of Coastal Management as soon as practicable after conceptual approval. The district shall also submit a recording or transcript of the public hearing held under 6 AAC 85.145(d), a list of names and addresses of those who testified, and copies of all 76 materials on which it based its decision. (c) Within 30 days after the district's submission to the Office of Coastal Management under (b) of this section, the Preliminary office will prepare findings of fact and conclusions based on findings authorities cited in this section, to comprise its recommendation on the program. Any material on which the recommendation is based must be cited and placed in the district record file described in (f) of this section. (d) Before the Office of Coastal Management will submit a program to the council review, the district must submit copies of its conceptually approved program to the office in sufficient number to allow distribution to the office's mailing list, the council, and persons who testified at the public hearing or presented written comments on the public hearing draft. (e) The Office of Coastal Management will distribute the district program, its recommendations, and the district's recommendations, if any, to those identified in (d) of this section and to any other person who has requested this material in writing. This material will be distributed as soon as practicable after the 30-day period allowed in (c) of this section. (f) A record file containing all material submitted by the district under this section, the Office of Coastal Management's recommendations under this section, and all material on which the recommendation was based must be maintained at the office and at a convenient location within the district. 45 day (g) Within 45 days after the distribution of the Office of review Coastal Management's recommendation, any person may submit comments on the recommendation. Comments which are not received within the 45-day period will not be considered. (h) Within 25 days after the deadline for submitting comments to the council under (g) of this section, the Office of Coastal Management will submit its response to the comments Revised and, if appropriate, revised findings and conclusions to the findings council and to all who responded to the original findings and conclusions. All comments and additional material submitted must be placed in the record files. (i) Within a total of 45 days after the deadline in (g) of this section, the council will approve or disapprove the district Council's program , in whole or in part. The council's decision will decision contain findings and conclusions based on this chapter, the standards contained in 6 AAC 80, AS 46.40.060, and 46.40.070. The council's findings and conclusions will be based on material contained in the record file. The council will, in its discretion, adopt the findings and conclusions of the Office of Coastal Management by reference. 77 0) The council will serve its decision under this section on all persons who submitted timely comments on the staff Notice of action recommendation under (g) of this section, to all persons who testified or submitted timely written statements at the public hearing held under 6 AAC 85 145(d), and to all persons who have requested a copy of the decision in writing. Notice of the council's action also must be published, at a minimum, in newspaper of general circulation in the district. (Eff. 7/18/78, Register 67; am 1/22/81, Register 77; am 3/2/84, Register 89) Authority: AS 44.19.160 AS 44.19.161 AS 46.40.010 AS 46.40.030 AS 46.40.040 6 AAC 85.170. MEDIATION. (a) If the council's decision under 6 AAC 85.150(i) disapproves, in whole or in part, the district program, the disapproved portion must be submitted to mediation as required by AS 46.40.060(b). Before the initial mediation session, the council will, in its discretion, call for one or more public hearings in the district concerned, for the purpose of discussing those portions of the program subject to mediation. Public hearings must be preceded by 30 days' notice. If public hearings are held, districts shall insure that, where reasonably requested, translation into the appropriate Native languages is provided. All public hearings must be electronically recorded. Oral or written testimony may be submitted, except that unduly repetitious testimony may be excluded. The oral testimony and written submissions constitute the hearing record, which must be transmitted to the mediator. Mediation sessions will be conducted as follows: (1) The parties to the mediation will be the council and the district. The parties shall, within 10 days after the date of the council's decision under 6 AAC 85.150(i), agree upon the selection of a mediator. If the parties cannot agree, they shall immediately, in writing, ask the Federal Mediation and Conciliation Service to appoint a mediator. If that mediator is unacceptable to either party, that party shall request the Federal Mediation and Conciliation Service to submit to the parties the names of three qualified mediators. Upon receipt of these names, each party shall strike one name from the list and the remaining name will be the mediator. A mediator shall perform his or her duties in a manner consistent with the standards of conduct set out in the Code of Professional Conduct for Labor Mediators, referred to in and set out as an appendix to 29 C.F.R. 1400.735-20. 78 (2) Mediation sessions must be held within the district. The mediator shall schedule the sessions, with due regard for the Mediation held convenience of the parties, upon at least seven days' notice, in district except that the parties may, by mutual consent, waive the notice period. The parties shall mutually agree upon the place of the meeting. (3) The mediator shall schedule the first mediation session to be held as soon as possible after he or she has been selected. At the initial session, the mediator shall establish reasonable rules of procedure. Mediation sessions must be conducted in a manner so that the parties will have the assurance and confidence that information disclosed to the mediator will remain confidential. The mediator shall determine the length and frequency of mediation sessions; however, if an accord is Accord or not reached within 60 days after the initial session, an impasse impasse will be declared by the mediator. By mutual consent of the parties and the mediator, this deadline may be extended for a period not to exceed an additional 30 days. (4) If the mediator determines that an impasse has been reached, he or she shall notify the parties in writing within 10 days after the determination is made. (5) If the mediator determines that an accord has been reached, he or she shall direct the parties to set out in writing the terms of the agreement. This agreement, to be signed by the parties, signifies the final settlement of.outstanding disputes, Terms of subject to ratification at a public meeting by the official bodies agreement of each party. With the approval of the parties, mediation may be used to resolve any differences which may arise as the result of the public meetings. After ratification under (a)(5) of this section, the agreement may be set aside only for fraud, misconduct, or gross mistake. (b) If the council and the district reach accord in mediation sessions held under (a) of this section, the council will, within 20 days after ratification by both parties, serve its modified decision, in the form of an order, on the district and all persons who were served with the council's decision under 6 AAC 85.150(i), and will place the modified decision in the record file. The modified decision will contain findings and conclusions, based on the record file and additional material presented during mediation necessary to demonstrate that the modified decision is consistent with this chapter, and the standards contained in 6 AAC 80, AS 46.40.060, or 46.40.070. (c) If the council and the district do not reach an accord, the council will, within 20 days after a determination that an impasse has been reached, set the matter for an adjudicatory Adjudicatory hearing under AS 46.40.060(c). Notice of the hearing must be hearing 79 served on the district and on all persons who were served with the council's decision under 6 AAC 85.150(i). Any person served with notice of the hearing under this subsection may intervene as a party to the hearing. (Eff. 3/2/84, Register 89) Authority: AS 44.19.160 AS 46.40.030 AS 46.19.167 AS 46.40.040 AS 46.40.010 6 AAC 85.180. EFFECTIVE DATE AND LOCAL ADOPTION. (a) A district program or significant amendment to a district program takes effect as part of the Alaska Coastal V Management Program upon the lieutenant governor's filing of Lt. Governor the council's decision approving the district program or filing significant amendment. A change or an amendment in the district program resulting t .rom mediation under AS 46.40.060(b) and 6 AAC 85.170(a) and (b) or from adjudication under AS 46.40.060(c) and 6 AAC 85.170(c) takes effect upon the lieutenant governor's filing of the council's order either ratifying the results of the mediation or determining the adjudication. Filing will take place after local adoption as Local adoption provided in (b) of this section. (b) Within 90 days after the date a district program or significant amendment is approved by the council under 6 AAC 85.150, the district shall, by ordinance or resolution, whichever is required by other applicable provision of law, adopt the district program or amendment approved by the council. However, a coastal resource service area shall adopt the district program by resolution of the coastal resource service area board. In the same manner, a change in a district program resulting from mediation under AS 46.40.060(b) and 6 AAC 85.170(a) and (b) or from adjudication under AS 46.40.060(C) and 6 AAC 85.170(c) must be adopted by the district following the council's order under 6 AAC 85.170 (b) or (c) ratifying the results of the mediation or determining the adjudication. (Eff. 3/2/84, Register 89) Authority: AS 44.19.160 AS 46.40.040 AS 46.40.010 AS 46.40.060 AS 46.40.030 AS 46.40.070 0 80 6 AAC 85.185. PETITION FOR AMENDMENT TO AN APPROVED DISTRICT PROGRAM REGARDING USES OF STATE CONCERN. (a) A state agency or other interested party may submit a petition for amendment to a district program if there is substantial evidence that a use of state concern, as defined in AS 46.40.210(6), is arbitrarily or unreasonably restricted or excluded by the district program. The petitioner must submit the petition to the division of governmental coordination (DGQ, in the office of management and budget, office of the Governor, and to the district. The petition must include the following information: (1) identification of one or more uses of state concern that are arbitrarily or unreasonably restricted or excluded by implementation of the program; (2) specific documentation of how the use of state concern is being arbitrarily or unreasonably restricted or excluded; (3) description of a significant change in circumstances or new information that has arisen since program approval, which provides a reasonable basis for concluding that the district program arbitrarily or unreasonably restricts or excludes a use of state concern; and (4) the proposed program amendment. (b) DGC will review the petition for completeness and distribute it to appropriate state agencies. Within 30 days after the petition is submitted to DGC, DGC will, in consultation ith the district, and the petiti w i ioner, attempt to resolve the petitioner's concerns without initiating a program amendment. DGC will extend the 30-day consultation period by 20 days at the request of the district, the involved state agencies or the petitioner. DGC will, in its discretion, extend the consultation period by up to 60 days if more time is needed for all parties to assemble. (c) If the concerns are not resolved through consultation and if DGC, in consultation with the district, the involved state agencies, and the petitioner, determines that after original program approval a significant change in circumstances has occurred or new information has developed that might cause the program to arbitrarily or unreasonably restrict or exclude a use of state concern, the procedure described in (d) of this section applies. (d) If the criteria in (c) of this section are met, then within 20 days after the end of the consultation period specified in (b) of this section, DGC will distribute the petition, DGC's evaluation of the proposed amendment, and the district's response to the petition, to the council and to all parties identified as having a significant interest in the district program, 81 including those parties described in 6 AAC 85.140. DGC's evaluation will include: (1) a summary of the proposed program amendment; (2) an analysis of the evidence that the requirements in (c) have been satisfied; and (3) an evaluation of the amendment's consistency with the Alaska Coastal'Management Program (ACMP). (e) If the criteria established in (c) of this section are not met, then DGC will report this finding to the council. DGC's finding will be distributed to all parties involved during the consultation period specified in (b:1 of this section and to the council. DGC's finding is subject to council review if a review is requested by a council member. (f) The procedures set out In AAC 85.150(g) for review of district programs apply to council review of a petition under this section. (g) The procedures set out In 6 AAC 85.170 for mediation and adjudicatory hearings apply ir- the district is dissatisfied with the council's decision on the petition. (h) An amendment to a district program approved by the council under (f) of this section -.-akes effect as part of the ACMP upon the lieutenant governor's filing of the council's decision approving the amendment. If mediation or an adjudicatory hearing under (g) of this section occurs, an amendment to a district program resulting from mediation under AS 46.40.060(b) and 6 AAC 85.170(a) and (b) or from adjudication under AS 46.40.060(c) and 6 AAC 85.170(c) takes effect upon the lieutenant governor's filing of the council's order either ratifying the results of the mediation or determining the adjudication, respectively. (Eff. 8/23/86, Register 99) Authority: AS 44.19.160 AS 46.40.040 AS 44.19.161 AS 46.40.060 AS 46.40.010 6 AAC 85.900. DEFINITIONS. Unless the context indicates otherwise, in this chapter (1) "beaches" means the area affected by wave action directly from the sea; (2) "marine coastal water" means water adjacent to shorelines which contains a measurable quantity of seawater, including sounds, bays, lagoons, bayous, ponds and estuaries, and the living resources which are dependent on these bodies 82 of water; (3) "council" means the Alaska Coastal Policy Council; (4) "district" means a coastal resource district as defined in AS 46.40.210(2); (5) "district program" means a district coastal management program; (6) "islands" means bodies of land surrounded by water on all sides; interior portions of major islands may be excluded from the coastal area if uses of these islands do not cause direct and significant impacts on coastal waters; (7) "saltwater wetlands" has the same meaning as that contained in 6 AAC 80.900(19); (8) "transitional and intertidal areas" means areas subject to periodic or occasional inundation by tides, including coastal floodplains, storm surge areas, tsunami and hurricane zones, and washover channels; (9) "feasible and prudent" has the same meaning as in 6 AAC 80.900; (10) "including" has the same meaning as in 6 AAC 80.900; and (11) "significant amendment" means an amendment to an approved district program which (A) results in a major revision, addition or deletion to the policies or implementation methods or authorities included in the district program under 6 AAC 85.090 and 6 AAC 85.100; (B) alters the district boundaries, other than by technical adjustments; (C) designates an area which merits special attention or alters an existing area which merits special attention designation; or (D) restricts or excludes a use of state concern not previously restricted or excluded. (Eff. 7/18/78, Register 67; am 8/18/79, Register 71; am 9/9/81, Register 79; am 3/2/84, Register 89) Authority: AS 44.19.160 AS 46.40.040 AS 44.19.161 AS 46.40.060 AS 46.40.010(c) AS 46.40.070 83 h OTBIER DEPARTMENT STATUTES AND REGULATIONS THAT ARE INCORPORATED INTO THE ACMP The Alaska Forest Resources and Practices Act and Regulations are incorporated into the ACMP under 6 AAC 80.100 with respect to the harvest and processing of timber. Likewise, Alaska Department of Environmental Conservation statutes and regulations are incorporated into the ACMP under 6 AAC 80.140 with respect to the protection of air, land, and water quality. Listed below are the citations for statutes and regulations: Alaska Department of Natural Resources Alaska Forest Resources and Practices Act AS 41.17.010 - .950 Alaska Forest Resources and Practices Regulations 11 AAC 95.185 - .255 Department of Environmental Conservation Powers of the department. Solid Waste Management Wastewater Discharge AS 46.03 Oil and Hazardous Substance Pollution Control AS 46.04 Hazardous Substance Release Control AS 46.09 Air Quality Control AS 46.14 84 'N @k Alaska Coastal Management Program Documents The State statutes, regulations and program documents, coupled with the coastal district program documents, constitute the Alaska Coastal Management Program. State ACMP standards (6 AAC 80) and district program enforceable policies form the basis for ACMP consistency reviews. STATE DOCUMENTS State of Alaska Coastal Management Program and Final Environmental Impact Statement, May 1979 National Oceanic and Atmospheric Administration Findings and Approval of the Alaska Coastal Management Program, July 6, 1979 Coastal Zone Boundaries of Alaska, June 1988 (updated June 1991) Alaska Statutes Title 44.19.145-152 and Title 46.40 Alaska Administrative Code Title 6, Chapters 50. 80. and 85 COASTAL DISTRICT PROGRAM DOCUMENTS Each district program original effective date and subsequent revision dates are indicated in parentheses. Documents containing district policies enforceable in ACMP consistency reviews are indicated with an asterisk. Aleutians East Borough (1989; 1992) An Analysis of Potential Development and Environmental Sensitivity in the Aleutians East Coastal Resource Service Area. Volume III, July 1985 Resource Inventory for the Aleutians East Coastal Resource Service Area. Volume 11. June 1986 Aleutians East Borough Akutan Attachment. Maps A, B. C, D. E, H, June 1990 Supplemental Resource Inventory for Port Heiden/Stepovak Bay, Maps 1-5. January 1991 Aleutians East Borough Coastal Management Program, April 19933* Aleutians West Coastal Resource Service Area (1991) Annotated Bibliography of Resource Information for AWCRSA, June 1988 AWCRSA Vol. 11 Resource Maps, 1989 AWCRSA Vol. 11 Resource Inventory & Analysis, March 1990 AWCRSA Vol III Coastal Management Plan, Final Approved Plan, December 1991* 85 Municipality of Anchorage (1981; 1982; 1987) Anchorage Coastal Resource Atlas, December 1980 Anchorage Coastal Scenic Resources and Public Access Plan. 1981 Anchorage Wetlands Management Plan. February 19822* Anchorage Coastal Management Program, July 1987* City of Angoon (1990; 1992) Angoon Coastal Management Program, Final Approved Plan, June 1992* Areas Meriting Special Attention Plan for Mitchell, Hood and Chalk-Whitewater Bays, Final Approved Plan, June 1992* Note: Both plans are contained in a single binder. Annette Island Indian Reserve (1980) Annette Island Coastal Management Program, November 1979* Program Amendment, February 1981* Areas Which Merit Special Attention (1983) Areas Which Merit Special Attention in Southern Alaska, July 1983* Bering Straits Coastal Resource Service Area (1989) Bering Straits Resource Inventory, Volume 1. October 1984 Bering Straits Conceptually Approved, Resource Analysis, Volume 2. October 1986 Bering Straits Coastal Management Plan, Volume 3). June 1991* City of Bethel (1984) City of Bethel Coastal Management Plan, January 1984* City of Bethel Drainage Management Plan. December 1985* Bristol Bay Borough (1984) Bristol Bay Borough Coastal Management Program, January 1993* Bristol Bay Coastal Resource Service Area (CRSA) (1987; 1990) Bristol Bay CRSA Coastal Management Program, Volume 1, Resource Inventory. January 1984 Bristol Bay CRSA Coastal Management Program, Volume 2, Management Plan, February 1987* Nushagak and Mulchatna Rivers Recreation Management Plan, August 1990* Cefialiulriit Coastal Resource Service Area (1985) Cefialiulriit Coastal Management Program, March 1985* City of Cordova and Eyak Lake AMSA (1986) Eyak Lake Area Which Merits Special Attention (AMSA) Plan. March 1985* Coastal Policy Council Order of Approval for the Eyak Lake AMSA Plan, May 1986* Cordova Coastal Management Program, November 1986* 86 City of Craig (1985) Craig Coastal Management Program, July 1984* Coastal Policy Council Order of Approval, December 1984* Craig boundary change (Routine Program Implementation), May 1990 City of Haines (1980; 1982; 1993) City of Haines, Port Chilkoot/Portage Cove Area Meriting Special Attention (waterfront design study), August 1982* Haines Coastal Management Program, September 1993* City of Hoonah (1984) Hoonah Coastal Management Program,, February 1984* City of Hydaburg (1983) Hydaburg Coastal Management Program, January 1983* Coastal Policy Council Order of Approval, April 19833* City and Borough of Juneau (1986; 1992; 1993) Downtown Waterfront Plan. Fall 1985 Juneau Coastal Management Program. November 1986* Policy Revision (RPI). October 1992* Juneau Wetlands Management Plan, February 1991* CPC Order of Approval, October 1991* Revisions to Wetlands Classifications (RPI), June 1993* City of Kake (1985) Kake Coastal Management Program. June 1984* Kenai Peninsula Borough (1990; 1992) Kenai Peninsula Borough Coastal Management Program. June 1990* Port Graham/Nanwalek Area Which Merits Special Attention Plan, March 1992* Ketchikan Gateway Borough (1984) Ketchikan Gateway Borough Coastal Management Program. July 1983* Ketchikan Gateway Borough Coastal Management Program, revised pages, April 1984* Ketchikan CMP District Abstract with Enforceable Policies, December 1988* City of Klawock (1985) Klawock Coastal Management Plan, June 1984* Coastal Policy Council Order of Approval, December 1984* 87 Kodiak Island Borough (1984) Kodiak Island Borough Coastal Management Program, Resource Maps. June 1981 Kodiak Island Borough Coastal Management Program, Progress Report Reprint (resource inventory), June 1983 Kodiak Island Borough Coastal Management Program, June 1983 (reprinted 1988)* Matanuska-Susitna Borough (1984; 1993) Matanuska- Susitna Borough Coastal Management Plan. September 1987* Matanuska- S us itna Borough Coastal Management Plan Appendices, September 1987 Coastal Policy Council Order of Approval. Amendment to Coastal Habitats Policy 2, March 1988* Point MacKenzie AMSA, May 1993* Coastal Policy Council Order of Approval, February 9, 1993* City of Nome (1984) Nome Coastal Management Program, Background Report. Part 1. July 1981 Nome Coastal Management Program. October 1983* Minor Amendments to Land Use Designations, July 1984 North Slope Borough (1988) North Slope Borough Coastal Management Program. Background Report, 1984 North Slope Borough Coastal Management Program. Resource Atlas. July 1984 North Slope Borough Coastal Management Program, April 1988* Northwest Arctic Borough (1989) NANA Region Coastal Management Plan. October 1985, Volumes 1-"3* Coastal Policy Council Order of Approval, May 22, 1986* NANA CRSA Coastal Management Program Policies. Chapter 6.0 revised. December 1989* Northwest Arctic Borough Coastal Management Program Policies A- I and G-6 (revised, December 1989* City of Pelican (1984; 1994) Pelican Coastal Management Program. January 1994* City and Borough of Sitka (1985; 1989; 1993) Sitka District Coastal Management Program. May 1989* Sitka Public Use Management Plan. June 1993* City of Skagway (1983; 1991) Skagway Coastal Management Program, May 1991 Port of Skagway and Skagway River AMSAs. April 1991 with replacement pages inserted 1993* City of St. Paul (1989) St. Paul Coastal Management Plan. June 1988* 88 City of Thorne Bay (1992) Thorne Bay District Coastal Management Program, September 1992* City of Valdez (1987) Valdez Coastal Management Program, September 1986* Pro ram Addendum. Januarv 1987* 9 City of Whittier (1990) Whittier Coastal Management Plan, September 1989* Coastal Policy Council Order of Approval, September 1989* City of Yakutat (198 1) Yakutat Coastal Management Program. January 1981* 89 %kh6 CHUKCHISEA BEAUFORT SEA AV. Inland Coastal K.tozebue Sound Boundary In A INLAND COA YLIKOM Norton Sound 0 f KwlAf/ BERING SEA K hokwini u 0 William Sound GULF OF ALASKA v 7!@ Almfian Wands SCAIE 0 100 200 300 Mdem X, CHUKCHI SEA BEA UFORr SEA Coastal Di-,, Under The Alas NORTH SLOPF BOROUGH Management CITIES NOftIHWIST ARCTIC BOROUGH fit' BOROUGH, h AND CRSA E fit RING S ..IS CBS NOME im 11Z MA-WISAA-SEESI-A TO CROUCH CI RAI IUI BIT I IYU KON KUSKOKWIMI OF ITS. SA '4 YAt 111 BERING SEA -!,@h CORDOVA A,,, 1411111 YAKUTAT BOROUGII <SKAGWAY 111T. HAINI S CITY AN METRIC COPAL IT V I'ST PAIR OF AN ROOTAGE S""." IIIHST L KINA PENINSULA 1'0 DNA ANG R RA "OL GULF OF ALASKA JHIH ORO el BOROUGH K A BRISTOL RAI t CRSA CITY AND BOROUGH Of SiTKA AICUTIANS FAST BOROUGH KODIAK ISO AND THORNE DAY AlfUll NS WISF BOROUGH I A.0 CRSA C LAILI AND PFNINSULA If, )A:I'UA(; BOROUGH At iU?fANS WE ST (;nSA 3CALE 0 Too 20. 3.11 M ILI S K or Index of Legal Opinions and Memoranda Related to Alaska Coastal Management Program The following is a list of Attorney General opinions, listed by general topic and dates of the opinion or memorandum. To receive a copy of an opinion, contact the Division of Governmental Coordination. Coastal Polic3@ Council Procedures/Petitions/Issues DATE Alaska Coastal Policy Council Member's Eligibility to hear petitions under AS 46.40.100 3/02/93 Petition for Reconsideration before the Coastal Policy Council 9/25/89 Amendments to CPC Orders of Approval 8/18/87 CPC authority to approve permit notification areas 6/08/87 Teleconferencing CPC meetings 4/08/87 Amendments to CPC Orders of Approval 5/19/86 Employment of CPC member by coastal resource district 4/05/85 CPC review of Uses of State Concern 1/14/85 CPC procedures re: conflicts of interest 3/08/84 Conflicts of interest guidelines for members of Boards and Commissions 9/23/83 Fish Creek Access group petition 10/14/81 Stipend for CPC members 3/09/81 Legislative oversight of CPC 10/08/80 Replacement of incumbent public members on CPC 10/06/80 Replacement of incumbent public members on CPC 9/29/80 District Coastal Management Programs/Local Implementation District coastal management programs 4/14/88 jurisdictional limitations of municipalities with respect to offshore waters 1/21/88 Questions concerning petition to form Aleutians East Borough 7/07/87 Amendment to Hoonah CMP 1/28/87 Implementation of district programs absent federal approval 12/18/86 Enforceability of intent statements incorporated in coastal district programs 11/26/86 Special Area designation in district CMPs 4/28/86 Coastal district recognition of "tribal government" 3/17/86 92 Enforceability of intent statements re: NSB program 11/29/85 Coastal district boundaries 1/10/85 Mat-Su Borough CMP mediation 2/09/84 Kotzebue airport Tract IV 7/02/82 Current status of Nome corporate boundaries 10/22/81 Comparison of local government planning powers under Titles 29 and 46 8/24/81 Order approving a district program 3/03/81 Effective date of coastal management local district programs 7/29/80 Local zoning authority over State oil and gas development 5/12/80 Local government management of Uses of State Concern under the ACMA 4/09/79 Coastal Resource Service Area Issues Coastal Resource Service Area's ability to receive funds 2/19/91 Resectioning Bering Straits CRSA election district 4/07/87 CRSAs: Voting Rights Act 9/20/85 Standards for establishing service areas 8/26/85 Status of existing coastal districts when a new CRSA is formed 2/15/85 Organization and planning within coastal resource areas 11/08/84 Inclusion of Akutan in Aleutians East CRSA 10/23/84 Participation of municipal coastal districts in new CRSA 5/29/84 CRSA boundaries 12/16/83 Formation of CRSA in a third-class borough 11/15/82 Implementation of CRSA district CMPs by State agencies 4/20/82 Reapportionment of CRSA election sections 2/17/81 Compensation for CRSA Board members 12/21/81 Bering Strait School Board; vacancy on REAA Board seat 9/03/80 Power of CRSA Board to determine vacancies 5/13/80 Timing of municipal Inclusion in CRSA 4/12/79 Areas -Which Merit Special Attention LAMSA) Approval of AMSAs by 2/3 majority vote 7/26/84 AMSAs 3/23/84 AMSAs which cross coastal resource district boundaries 3/02/82 Designation of an AMSA on State land in the unorganized borough 3/10/81 93 State Consistency Reviews Review of 6 AAC 80.040 and Summary of 8/10/92 AG Op. on the meaning of "public need" 1/18/91 Enforceability of "homeless" stipulations 8/27/90 Interplay between Alaska Forest Practices Act and regulations adopted under it and the standards of the ACMP 9/29/88 Scope of Public Trust Doctrine in Alaska 5/19/88 Timber Task Force inquiry re: meaning of "project" in the ACMP 5/06/85 Appeals procedures for consistency determinations 9/12/84 Review of Auk Nu Cove project consistency determination 8/16/84 Repeal of adjudicatory hearing regulations 9/28/84 ACMP consistency requirement for well-drilling permit 7/11/84 Meaning of "public need" as used in ACMP regulations 8/10/82 Scope of ACMP consistency determinations 7/16/82 BORAX bulk sampling - special use permit approval 5/14/82 Rights created by shore fisheries leases 7/06/81 Consistency determinations 6/01/81 Preemption of ACMP standards by Forest Practice regulations 4/20/81 ACMP consistency-weight accorded district programs 1/21/81 Letter: John Chenoweth, LAA, to Rep. Nels Anderson, Jr., ,91h re: degree of participation of entities representing residents of unorganized borough in making consistency determinations under State's CMP 11/28/80 Prudhoe Bay Waterflood Project and submerged lands claims 10/30/80 Notice for shore fishery leases 9/04/80 Notice requirement for shore fishery lease after adjudication of a protest 7/17/80 State vs. ALIVE Voluntary re: Status of approval of coastal zone management regulations 3/06/80 "Feasible and prudent" circumstances under which CPC's policies may be modified 9/26/79 Forest Practices Act preemption of coastal management standards 12/04/78 State agency implementation of ACMF standards 10/26/78 Wastewater regulations (18 AAC 72) 1/03/77 Dredge or fill permit jurisdiction under AS 46.03.100 11/13/75 Tideland issues Regulations re: coastal management guidelines and standards (6 AAC 80 and 85) 5/08/78 Access to State tidelands 12/02/85 94 Can DFG do habitat enhancement on uplifted tideland in Prince William Sound? 8/02/85 Application of City of Nome for conveyance of tidelands and submerged lands from the State 11/26/84 State leases of tidelands 9/26/83 State prospecting permits on State tidelands 12/03/80 Review Haines tideland application 4/26/78 Unused federal improvements on State tidelands 9/21/77 Effect of earthquake on ownership of tidelands 5/18/66 Transfer of tidelands from State to City of Anchorage 3/20/64 Application of City of Anchorage for conveyance of tidelands from the State to the City 3/18/64 Alaska tidelands 3/13/62 Federal Consistenc3: Issues/012inions/MOUs CZMA/Endangered Species Act: State's authority 9/10/87 Ninth Circuit Opinion re: Lease Sale 92 injunction 4/29/86 COE Jurisdiction in upland areas 12/09/85 ACMP review of U.S. Forest Service timber sales 10/05/84 Applicability of ACMP policies regarding interference with commercial fishing to OCS development activities 7/30/84 July 1984 NPR-A lease sale 5/11/84 Joint land disposal MOU 12/30/83 Legal basis for EPA's decision not to appeal court order directing Shee Atika to obtain NPDES permit 11/16/83 State Water Quality Standards in federal OCS waters 9/14/83 Appeal regulations for federal consistency determinations 1/20/83 Interrelationship of Magnuson Act and CZMA; federal consistency and fishery management plans 11/24/82 Interpretation of §109(f)(1)(B) of the Marine Mammal Protection Act 10/08/82 New COE regulations - Nationwide permits for categories of waters 9/21/82 New Jersey vs. Department of the Interior re: OCS lease sales in violation of the CZMA 9/07/82 OCS Lease Sale 71 8/16/82 Ninth Circuit opinion re: OCS leases off the coast of California 8/12/82 Regulations re: appeals of federal consistency determinations 6/14/82 Consistency determinations on OCS lease sales 6/11/82 Washington vs. Northern Tier Pipeline Company and COE re: permits for crude oil terminal and pipeline 5/12/82 Supreme Court Opinion re: leasing offshore tracts in the Beaufort Sea for oil and gas exploration and development 5/07/82 95 Incorporation of ACMP stipulations on COE §404 permits 2/17/82 Washington vs. U.S.; judgement and Order on the excluded lands litigation 8/13/81 "Taking" under CZMA and Clean Water Act 6/19/80 SAG Delta-Wells 7 and 8 - Consistency under ACMP 5/15/80 Whether preleasing activities of Secretary of Interior relating to the OCS are subject to the consistency requirement of §307(c)(1) of the CZMA 4/20/79 U.S. vs. California, Dominion over submerged lands 5/15/78 1961 MOU between DNR and Forest Service, Region 10 6/08/77 Nunivak Wilderness Study - Ownership of submerged lands 10/08/73 Other Topics State legislator serving on Land Use Advisory Committee 4/12/88 R.S. 2477s - roads, rights-of-way and riddles 11/16/87 Open meetings 5/28/87 Review of SB 114, legislative approval of ACMP 4/01/87 Permit reform and adjudicatory hearing procedures 11/30/84 Amendments to ACMA proposed by Sealaska Corporation 3/15/84 Incorporating State Area Plans into the ACMP 2/17/84 Angoon and Sierra Club vs. DEC and Shee Atika, Inc. 2/10/83 Executive Order 53 2/08/83 Public disclosure regulations 12/27/82 Public disclosure regulations 4/12/82 Validity of Offshore Prospecting Permit regulations 2/05/82 State-Native fundamental policy questions 1/15/82 Legislative Council membership 7/22/81 Application of Open Meetings Law to informal meetings 5/11/81 Status of nonprofit native corporations re: coastal zone management regulations 4/30/81 Severability of ACMA legislative app,roval requirements 4/29/80 Public and charitable use land disposals 10/17/78 Changes to CEIP regulations to include regional salmon enhancement authorities and regional electric authorities 8/09/78 Legislative approval of CMP 5/05/78 Baselines and artificial islands 12/22/77 96 L or 1990 AMENDMENTS TO THE COASTAL ZONE MANAGEMENT ACT: A SUMMARY see T 09 co 01 tT4 .11w Coastal Zone information Center Ile Office of Ocean and Coastal Resource management ment V National Oceanic arC AtmcsC)hehC Aaministration 1305 East West HiSbwAy, FEE Silver Spring, MD 20910 (301) 713-3086 -V*V 97 COASTAL ZONE NLANAGENIENT ACT REAUTHORIZATION On November 5, 1990, the President signed the Coastal Zone Management Act Amendments of 1990 (the Act), which reauthorized for five years the coastal zone management and estuarine research reserve programs. Approved by Congress Just before it recessed for the November elections, the Act is designed to modernize and strengthen the Coastal Zone Management Act (CZM.A) to address the new and emerging coastal issues of the 1990s. The Act makes a number of changes to the CZM.A, including the addition of Outer Continental Shelf oil and gas lease sales to the Federal consistency provisions, the establishment of state coastal water quality protection programs, and the creation of a new enhancement grants program. The final version of the five-year CZMA reauthorization, which was tied strategically to the Omnibus Budget Reconciliation Act of 1990, was negotiated by conferees iforn the Senate Commerce, Science and Transportation Committee and the House Merchant Marine and Fisheries Committee, as part of the House-Senate conference on the budget deficit reconciliation package. The conferees worked with the Senate Environment and Public Works Committee and the House Public Works and Transportation Committee to reach a compromise regarding the coastal water quality provisions. The final language reflects a compromise between the House-passed CZMA reauthorization bill, H.R. 5665, and a similar Senate measure (S. 2782). Federal Consistencv The final bill amends the Federal consistency provisions (Section 307) to overturn the Supreme Court's 1984 decision in Secretary of the Interior v. California and make clear that Outer Continental Shelf (OCS) oil and gas lease sales are subject to the requirements of Section 307(c)(1). The new language clarifies that all Federal agency activities, including OCS oil and gas lease sales and the designation of ocean dumping sites, whether in or outside of the coastal zone, are subject to the consistency requirements of Section 307(c)(1) of the CZNLA if they affect natural resources, land uses or water uses in the coastal zone. This is in keeping with NOAA's current regulations, which say that the geographic scope of Federal consistency review is based on the effect of a Federal activity on coastal zone uses and resources, not on the location of the activity. In the conference report on the bill, the House and Senate conferees provided a clarification regarding a Federal agency's determination of whether a specific Federal agency activity may affect any natural resource, land use, or water use in the coastal zone. The conferees stated that this determination "is to include effects in the coasW 96 zone which the federal agency may reasonably anticipate as a result of its action, includinc, cumulative and secondary effects. Therefore, the term 'affecting' is to be construed broadly, P including direct effects which may be caused by the activity and are later in time or farther removed in distance, but are still reasonably foreseeable." A new provision is added to the CZNL4L, Section 307(c)(2), which authorizes the President to exempt a specific Federal project if the President determines that it is in the paramount interest of the U.S. This exemption can only arise after a Federal court has determined that the Federal agency activity is inconsistent with a state CZM program. The provision is based on similar exemption provisions in other environmental statutes, including the Clean Water Act and the Clean Air Act. The Act clarifies that the exemption can not be applicable to a class of Federal agency activities, only to a specific activity. Coastal Nonpoint -Pollution Control The Act established a new, stand alone provision which requires states and territories with federally-approved CZM programs to develop a Coastal Nonpoint Pollution Control Program (CNPCP). The program, which must be submitted to NOAA and the Environmental Protection Agency for approval, will be implemented through changes to both the state coastal management and nonpoint source management programs (Section 319 of the Clean Water Act). The purpose of the program is to develop and implement management measures for nonpoint source pollution control to restore and protect coastal waters, working in close conjunction with other state and local authorities. "ne statute defines "management measures" as "economically achievable measures for the control of the addition of pollutants from e)dsting and new categories and classes of nonpoint sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pollution control practices, technologies, processes, siting criteria, operating methods, or other alternatives." Under this new section, EPA must publish guidance, in consultation with NOAA and other Federal agencies, specifying management measures for sources of nonpoint pollution in coastal waters. The guidance must include: (1) a description of a range of methods, measures, or practices, including structural and nonstructural controls and operation and maintenance procedures, that constitute each measure; (2) a description of the categories and subcategories of activities and locations for which each measure may be suitable; (3) an identification of the individual pollutants or categories or classes of pollutants that may be controlled by the measures and the water quality effects of the measures; (4) quantitative estimates of the pollution reduction effects of the measures; (5) a description of the factors which should be taken into account in adapting the measures to specific sites or locations; and (6) any necessary monitoring techniques to accompany the measures to assess over time the success of the measures in reducing pollution loads and improving water quality. Draft guidance must be published six 99 months after enactment, with final guidance due within 18 months. Coastal states and other interested parties must have an opportunity to provide written comments on the draft guidance. States have 30 months from issuance of final guidance to comply with this requirement. States which fail to submit approvable programs could 1@se up to 30 percent of their funding under Section 306 of the CZIMA and Section 319 of the Clean Water Act. In addition to providing management measures, the programs must contain, among other things: identification of land uses which individually or cumulatively may cause or contribute significantly to the degradation of certain coastal waters; identification of "critical coastal areas" within which any new land uses or substantial expansion of existing land uses will be subject to the management measures; implementation of additional management measures applicable to the land uses and identified coastal areas that are necessary to achieve and maintain applicable water quality standards under Section 303 of the Clean Water Act; provision of technical assistance to local governments and the public for implementing the management measures; opportunities for public participation in all aspects of the program; and establishment of mechanisms to improve coordination among state agencies and between state and local officials. NOAA and EPA are required to provide technical assistance to coastal states and local governments in developing and implementing programs under this section. The assistance must include: methods for assessing water quality impacts associated with coastal land uses; methods for assessing the cumulative water quality effects of coastal development; maintaining an inventory of model ordinances, and providing other assistance to coastal states and local governments in identifying, developing and * implementing pollution control measures; and methods to predict and assess the effects of coastal land use management measures on coastal water quality and designated uses. The Act also requires the Secretary of Commerce, in consultation with EPA, to review the inland coastal zone boundary of each coastal state with a federally-approved program and evaluate whether the state's coastal zone boundary extends inland to the extent necessary to control the land and water uses that have a significant impact on coastal waters of the state. This review must be completed within 18 months of enactment. If the Secretary finds that modifications are necessary for a state to more effectively manage land and water uses to protect coastal waters, he must recommend appropriate modifications in writing to the state. CZM Proeram Enhancements CZMA's Section 309 was revised to establish a new enhancements grant program to encourage states to continually improve their federally-approved CZM programs in one or more of eight identified areas. The "Coastal Zone Enhancement Objectives" 100 include: (1) coastal wetlands management and protection, (2) natural hazards management (including the potential for sea and Great Lakes level rise), (3) public access improvements; (4) reduction of marine debris, (5) assessment of cumulative and secondary impacts of coastal development; (6) special area management planning; (7) ocean resource planning; and (8) siting of coastal energy and government facilities. Beginning in Fiscal Year 1991, the Secretary is authorized to make grants (not less than 10 percent and not more than 20 percent of ihe amounts appropriated under Sections 306 and 306A of the CZMA') to coastal states to provide funding for development and submission for Federal approval of program changes that support attainment of one or more of the coastal zone enhancement objectives. As part of this effort, the Secretary is required to evaluate and rank state proposals for funding, and make funding awards based on those proposals. The Secretary has the authority to suspend a state's eli ibility for funding under Section 309 for at least one year, if the 9 Secretary finds that the state is not undertaking the actions committed to under the terms of the 309 grant. NOAA must issue regulations relating to the new Section 309 within 12 months of enactment (by November 5, 1991). The regulations must establish: "(1) specific and detailed criteria that must be addressed by a coastal state (including the state's priority needs for improvement as identified by the Secretary after careful consultation with the state) as part of the state's development and implementation of coastal zone enhancement objectives; (2) administrative or procedural rules or requirements as necessary to facilitate the development and implementation of such objectives by coastal states; and (3) other funding award criteria as are necessary or appropriate to ensure that evaluations of proposals, and decisions to award funding, under this section are based on objective standards applied fairly and equitably to those proposals." Coastal Zone ManaZernent Fund The Act repeals the Coastal Energy Impact Program (CEIP), but requires that repayments of the remaining $87.5 miWon in program loans still outstanding be deposited into a new "Coastal Zone Management Fund" as they are repaid. Section 308(b)(2) authorizes the Secretary to expend amounts in the Fund for administration of the CZM program and for specified discretionary activities: regional and interstate projects (formerly Section 309); demonstration projects; emergency assistance; excellence awards pursuant to Section 313; program development grants pursuant to Section 305; and to assist states in applying the public trust doctrine in the implementation of their CZM programs. In recent years, annual loan repayments have ranged from a low of $4 million to a high of $15 million, with an annual average of some $6-8 million. The House and Senate conferees anticipate an annual expenditure of between $6 million and $8 million through the CZM Fund, subject to appropriation. 101 Coastal Zone Management Review The Act provides new authority under Section 312 to impose "interim sanctions" on a state program for up to three years if the state is failing to adhere to its federally- approved program. The Secretary is authorized to suspend financial assistance awards. if he/she determines that the coastal state is failing to adhere to (A) the federally-approved coastal management program or a state plan developed to manage a National Estuarine Reserve established under Section 315, or a portion of the program or plan approved by the Secretary, or (B) the terms of any grant or cooperative agreement. Before suspending financial assistance, the Secretary must provide the Governor of the coastal state with written specifications and a schedule for the actions that should be taken by the State in order that the suspension be withdrawn, and written specifications stating how those funds from the suspended financial assistance will be expended by the coastal state to take actions identified by the Secretary. The suspension of financiai assistance may not last for less than six months or more than 36 months. The House and Senate conferees also revised the procedures for carrying out evaluations of State CZM programs and National Estuarine Research Reserves. In addition to mandating "full" public participation in the evaluation of state programs, the changes require: a 45-day notice for public meetings; written response to all written comments on the evaluation; and completion of the final evaluation report within 120 days after the last public meeting held in the state. Other provisions of the 1990 CZIMA Amendments include: a new section 310 which requires the Secretary to provide technical assistance and manage ment-oriented research to support development and implementation of state CZM programs, and appropriate to the furtherance of international cooperative efforts and technical assistance in coastal zone management; minor modirications to the National Estuarine Research Reserve System including an increase in the maximum amount of Federal financial assistance for land or water acquisition at Reserve sites and an increase in the Federal share of costs for managing a reserve and constructing facilities; authorization for NOAA to make annual achievement awards to individuals and local governments who have been recognized for outstanding accomplishments in the field of coastal zone management; a doubling of the authorization levels for the CZM program, from the fiscal year 1990 level of $51.6 million - of which $41 million was appropriated -- to $120.1 million for Fiscal Year 1995; and 0 102 clarification that the seaward coastal zone boundary extends on1v to the limit of state ownership and title (in most cases, three nautical miles), an issue that was clouded when President Ronald Reagan extended the U.S. territorial sea to 12 miles in 1988. The implementation of these major, new CZN.4-A provisions will be a challenge. and will require much work and close cooperation at the Federal. state and local level and with the public and private sectors, OCRIM has already begun to organize its activities in order to meet the tight timelines for guidance and regulations as required bv the 1990 Amendments. 7-here is a 12-month statutory deadline for the enhancement grant regulations. In addition, there are revisions to Section 312 that are effective immediately and conflict with NOAA's current regulations. In order to meet these immediate requirements, OCRM anticipates conducting a phased rulemaking with the 7 first phase limited to the enhancement grants progam and program evaluations. We expect to complete issue papers on these subjects in late February or early March. The issue papers will be widely distributed. OCRNI will look forward to your comments and your future involvement in the office*s implementation activities. For additional information, contact the Coastal Zone Information Center, Office of Ocean and Coastal Resource Management, NOAA, 1.305 East West Hi.ghway, Silver Spring, MD 20910, Phona (301)713-3086. 103 0 dddll@ .now IV. S-882 '71-8001 COASTAL ZONE MANAGEMENT ACT OF 1972 (Pl. 92-583, 16 U.S.C. 1451 el seq., October 27, 1972; Amended by PL 93-612, January 2, 1975; PL 94-370. July 26, 1976; PL 95-219, December 28, 1977; PL 95-372, September 18, 1978; PL 96-464, October 17, 1980; PL 08-620, November 11, 1984; PL 99-272, April 7, 1986; PL 99-626, November 7, 1986; PL 10 1 -508, November 5, 1990) SHORT TITLE Lakes, territorial sea, exclusive economic zone, and Out- er Continental Shelf are placing stress on these areas SEC. 30 1. This title may be cited as the "Coastal Zone and are creating the need for resolution of serious MatTagement Act of 1972". conflicts among important and competing uses and val- ues in coastal and ocean waters. CONGRESSIONAL FINDINGS (Former 302(f)-(i) redesignated as (g)-(j) by PL SEC. 302 '. The Congress rinds that - 96-4641. (a) There is a national interest in the effective manage- (g) Special natural and scenic characteristics are being ment. beneficial use, protection, and development of the damaged by ill-planned development that threatens these coastal zone. values. (b) The coastal zone is rich in a variety of natural, (h) In light of competing demands and the urgent need commercial. recreational, ecological. industrial. and esthetic to protect and to give high priority to natural systems in resources of immediate and potential value to the present the coastal zone. present state and local institutional and future well-being of the Nation. arrangements for planning and regulating land and water (c) The increasing and competing demands upcn the uses in such areas are inadequate. lands and waters of our coastal zone occasioned by pop- (i) The key to more effective protection and use of the ulation growth and economic development. including land and water resources of the coastaf zone is to en- requirements for industry, commerce, residential' courage the states to exercise their full authority over the development. recreation, extraction of mineral resources lands and waters in the coastal zone by assisting the and fossil fuels, transportation and navigation, waste dis- states, in cooperation with Federal and local posal, and harvesting of fish, shellfish. and other living governments and other vitally affected interests, in marine resources, have resulted in the loss of living developing land and water use programs for the coastal marine resources, wildlife, nutrient-rich areas, perma- zone, including unified policies, criteria. standards. nent and adverse changes to ecological systems, decreas- methods. and processes for dealing with land and water ing open space for public use, and shoreline erosion. use decisions of more than local significance. (d) The habitat areas of the coastal zone, and the fish, 0) The national objective of attaining' a greater degree shellfish, other living marine resources, and wildlife of energy self-sufficiency would be advanced by therein, are ecologically fragile and consequently ex- providing Federal financial assistance to meet state an@ tremely vulnerable to destructions by man's alterations. local needs resulting from new or expanded energy activi- [302(a) amended by PL 101-5081 ty in or affecting the coastal zone. (e) Important ecological. cultural, historic, and es [302(k)-(m-) added by PL 101-5081 thetic values in the coastal zone which are essential to the (k) .Land uses in the coastal zone, and the uses of well-being of all citizens are being irr .etrievably damaged adjacent lands which drain into the coastal zone, may or lost. significantly affect the quality of coastal waters and [302(f) added by PL 96-464; amended by PL 101-5081 habitats, and efforts to control coastal water pollution (f) New and expanding demands for food, energy, from land use activities must be improved. minerals, defense needs, recreation, waste disposal, (1) Because global warming may result in a substan- transportation, and industrial activities in the Great tial sea level rise with serious adverse effects in the 3-8-91 Published by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, D.C, 20037 71:8002 FEDERAL LAWS coastal zone, coastal states must anticipate and plan for commercial and industrial developments in or adjacent such an occurrence. to areas where such development already exists, (m) Because of their proximity to and reliance upon (E) public access to the coasts for recreation purposes, the ocean and its resources, the coastal states have (F) assistance in the redevelopment of deteriorating substantial and significant interests in the protection, urban waterfronts and ports, and sensitive preservation management, and development of the resources of the and restor-ation of historic, cultural. and esthetic exclusive economic zone that can only be served by the coastal features, active participation of coastal states in all Federal pro- (G) the coordination and simplification of procedures grams affecting such resources and, wherever appropri- in order to ensure expedited governmental decision- ate, by the development of state ocean resource plans as making for the management of coastal resources, part of their federally approved coastal zone manage- (H) continued consultation and coordination with, and ment programs. the giving of adequate consideration to the views of, CONGRESSIONAL DECLARATION OF POLICY affected Federal agencies, (1) the giving of timely and effective notification [303 revised by PL 96-464] of, and opportunities for public and local government SEC. 303. The Congress finds and declares that it is participation in, coastal management decisionmaking, the national policy- [303(2)(1) amended by PL 101-5081 (1) to preserve, protect, develop, and where possible, (J) assistance to support comprehensive planning, con- to restore or enhance, the resources of the Nation's servation, and management for living marine re- -coastal zone for this and succeeding generations; sources, including planning for the siting of pollution (2) to encourage and assist the states to exercise control and aquaculture facilities within the coastal zone, effectively their responsibilities in the coastal zone and improved coordination between State and Federal through the development and implementation of manage- coastal zone management agencies and State and wild- ment programs to achieve wise use of the land and water life agencies, and resources of the coastal zone, giving full consideration to [303(2)(J) amended by PL 101-5081 ecological. cultural, historic, and esthetic values as well (K) the study and development, in any case in which as the needs for compatible economic development, the Secretary considers it to be appropriate, of plans for which programs should at least provide for- addressing the adverse effects upon the coastal zone of [303(2) introductory paragraph amended by PL land subsidence and of sea level rise; and 101-508] [303(2)(K) amended by PL 101-508] (A) the protection of natural resources, including (3) to encourage the preparation of special area wetlands, floodplains, estuaries, beaches, dunes, barrier management plans which provide for increased specificity islands, coral reefs, and fish and wildlife and their in protecting significant natural resources, reasonable habitat, within the coastal zone. coastal-dependent economic growth. improved protection (B) the management of coastal development to of life and property in hazardous areas, including those minimize the loss of life and property caused by areas likely to be affected by land subsidence, sea level improper development in flood-prone, storm surge, rise, or fluctuating water levels of the Great Lakes, and geological hazard, and erosion-pronc areas and in areas improved predictability in governmental decisionmaking; likely to be affected by or vulnerable to sea level rise, [303(3) amended by PL 101-5081 land subsidence, and saltwater intrusion, and by the destruction of natural protective features such as beach- (4) to encourage the participation and cooperation es, dunes, wetlands, and barrier islands. of the public, state and local governments. and (303 (2)(B) amended, former (C)-(I) redesignated as interstate and other regional agencies, as well as of the new (D)-(J) and new (C) added by PL 101-508] Federal agencies having programs affecting the coastal (C) the management of coastal development to'im- zone, in carrying out the purposes of this title; prove, safeguard, and restore the quality of coastal [303(4) amended and (5) and (6) added by PL waters, and to protect natural resources and existing 101-5081 uses of,those waters. (5) to encourage coordination and cooperation with (D) priority consideration being given to coastal- and among the appropriate Federal, State, and local -dependent uses and orderly processes for siting major- agencies, and international organizations where appro- facilities related to national defense, energy, fisheries priate, in collection, analysis, synthesis, and dissemina- development, recreation, ports and transportation. and tion of coastal management information, research re- the location, to the maximum extent practicable, of new sults. and technical assistance, to support State and 0 Environment Reporter 105 S-882 COASTAL ZONE ACT 71:8003 Federal regulation of land use practices affecting the (4) The term "coastal state" means a state of the coastal and ocean resources of the United States; and United States in. or bordering on, the Atlantic. Pacific. (6) to respond to changing circumstances affecting the or Arctic Ocean. the Gulf of Mexico. Long Island Sound. coastal environment and coastal resource management or one or more of the Great Lakes. For the purposes of by encouraging States to consider such issues as ocean this title, the term also includes Puerto Rico, the Virgin uses potentially affecting the coastal zone. Islands, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the DEFINITIONS Pacific Islands. and American Samoa. SEC. 304. For the purposes of this title - (304(4) amended by PL 96-464] (1) The term "coastal zone" means the coastal waters (5) The term "coastal energy activity" means any of (including the lands therein and thereunder) and the adja- the fol-lowing activities if. and to the extent that (A) the cent shorelands (including the waters therein and conduct. support. or facilitation of such activity requires thereunder), strongly influenced by each other and in and involves the siting. construction. expansi .on, or proximity to the shorelines of the several coastal states. operation of any equipment or facility: and (B) any and includes islands, transitional and intertidal areas, salt technical requirement exists which, in the determination marshes. wetlands, and beaches. The zone extends. in of the Secretary, necessitates that the siting, construc- Great Lakes waters. to the international boundary tion, expansion, or operation of such equipment or facili- between the United States and Canada and. in other ty be carried out in, on in close proximity to. the coastal areas, seaward to the. outer limit of the outer limit of zone of any coastal state, State title and ownership under the Submerged Lands (i) Any outer Continental Shelf energy activity. Act (43 U.S.C. 1301 et seq.), the Act of March 2, 1917 (ii) Any transportation, conversion. treatment, (48 U.S.C. 749), the Covenant to Establish a Common- transfer. or storage of liquefied natural gas. wealth of the Northern Mariana Islands in Political (iii) Any transportation. transfer. or storage of oil, Union with the United States of America, as approved natural gas, or coal (including, but not limited to, by by the Act of March 24, 1976 (48 U.S.C. 1681 note), or means of any deep-water port, as defined in section 3(10) section I of the Act of November 20, 1963 (48 U.S.C. of the Deepwater Port Act of 1974 (33 U.S.C. 1502(10))). 1705, as applicable. The zone extends inland from the For purposes of this paragraph. the siting. construc- shorelines only to the extent necessary to control tion. expansion, or operation of any equipment or facility shorelands. the uses of which have a direct and significant shall be 'in close proximity to the coastal zone of any impact on the coastal waters. Excluded from the coastal coastal state if such S'Iting, construction. expansion, or zone are lands the use of which is by law subject solely to operation has, or is likely to have, a significant effect on the discretion of or which is held in trust by the Federal such coastal zone. Government, its officers or agents and to control those @ (6) The term "energy facilities" mom any equipment geographical areas which are likely to be affected by or or facility which is or will be used primarily - vulnerable to sea level rise. (A) in thi exploration for, or the development. produc- .(304(l) amended by PL 101-5081 tion. conversion, storage, transfer, processing, or (2) The term "coastal resource of national significance" transportation of. any energy resource: or means any coastal wetland, beach. dune, barrier island, (13) for the manufacture, production. or assembly of reef, estuary, or fish and wildlife habitat, if any equipment. machinery, products. or devices which are in- such area is determined by a coastal state to be of volved in any activity described in subparagraph (A). substantial biological or natural storm protective value. The term includes. but is not limited to (i) electric [New 304(2) added by PL 96-464 and former 304(2)- generating plants. (ii) petroleum refineries and associated (16) redesignated as (3)-(17) by PL 96-464] facilities: (iii) gasification plants: (iv) facilities used for (3) The term "coastal waters" means (A) in the Great the transportation. conversion, treatment, transfer. or Lakes area. the waters within the territorial jurisdiction storage of liqueried natural gas, (v) uranium enrichment of the United States consisting of the Great Lakes, their or nuclear fuel processing facilities. (vi) oil and gas connecting waters, harbors, roadsteads. and estuary-type facilities, including platforms, assembly plants, storage areas such as bays, shallows. and marshes and (8) in depots. tank farms. crew and supply bases, and refining other areas, those waters, adjacent to the shorelines, complexes: (vii) facilities including deepwater ports, for which contain a measurable quantity or.percentage of sea the transfer of petroleurn- (viii) pipelines and transmis- water, including, but not limited to, sounds, bays, sion facilities. and (ix) terminals which are associated lagoons, bayous, ponds. and estuaries. with any of the foregoing. 3-6-91 Published by TME BUREAU OF NATIONAL AFFAIRS, INC., Washillgt0f, O.C. 20037 1 06 71:8004 FEDERAL LAWS (6a) The term 'enforceable policy' means State poli- Federal Government. any state. regional, or local govern- cies which are legally binding through constitutional ment: or any entity of any such Federal, state. regional. provisions. laws, regulations, land use plans, ordinances, or local government. or judicial or administrative decisions, by which a State (15) The term "public facilities and public services" exerts control over private and public land and water means facilities or services which are financed, in whole uses and natural resources in the coastal zone. or in part, by any state or political subdivision thereof. [304(6a) added by the PL 101-508] including. but not limited to, highways and secondary (7) The term "estuary" means that part of a river or roads. parking. mass transit, docks. navigation aids, Fire stream or other body of water having unimpaired connec- and police protection. water supply, waste collection and tion with the open sea. where the sea water is measurably treatment (including drainage), schools and education. diluted with fresh water derived from land drainage. The and hospitals and health care. Such term may also in- term includes estuary-type areas of the Great Lakes. clude any other facility or service so financed which the (8) The term "estuarine sanctuary" means a research Secretary rinds will support increased population. area which may include any part or all of an estuary and (16) The term "Secretary" means the Secretary of any island, transitional area. and upland in, adjoining. or Commerce. adjacent to such estuary. and which constitute to the ex- (17) The term 'special area management plan' tent feasible a natural unit. set aside to provide scientists means a comprehensive plan providing for natural and students the opportunity to examine over a period of. resource protection and reasonable coastal-dependent time the ecological relatio@ships within the area. economic growth containing a detailed and comprehensive (9) The term "Fund" means the Coastal Energy Im- statement of policies; standards and criteria to guide pact Fund established by section 308(h). public and private uses of lands and waters: and (10) The term "land use" means activities which are mechanisms for timely implementation in specific conducted in. or on the shorelands within. the coastal geographic areas within the coastal zone. zone. subject to the requirements outlined in section [304(17) added by PL 96-464] 307(g). (18) The term "water use" means a use, activity, or 0 1) The term "local government" means any political project conducted in or on waters within the coastal subdivision of. or any special entity created by. any zone. coastal state which (in whole or part) is located in. or has [304(18) revised by PL 101-508] authority over. such state's coastal zone and which (A) has authority to levy taxes. or to establish and collect MANAGEMENT PROGRAM DEVELOPMENT usef fees. or (B) provides any public facility or public ser- GRANTS vice which is financed in whole or part by taxes or user fees. The term includes. but is not limited to, any school SEC. 305. (a) In fiscal years 1991, 1992, and 1993, district. fire district. transportation authority. and any the Secretary may make a grant annually to any coastal other special purpose district or authority. state without an approved program if the coastal state (12) The term -management program" includes. but is demonstrates to the satisfaction of the Secretary that the not limited to. a comprehensive statement in words. grant will be used to develop a management program maps.- illustrations. or other media of communication. consistent with the requirements set forth in section 306. prepared and adopted by the state in accordance with the The amount of any such grant shall not exceed S200,000 provisions of this title. setting forth objectives. policies. in any fiscal year, and shall require State matching and standards to guide public and private uses of lands funds according to a 4-to-l ratio of Federal-to-Statc and waters in the coastal zone. contributions. After an initial grant is made to a coastal (13) The term "outer continental shelf energy activity" state pursuant to this subsection, no subsequent grant means any exploration for. or any development or shall be made to that coastal state pursuant to this production of, oil or natural gas from the outer con- subsection unless the Secretary finds that the coastal tinental shelf (as defined in section 2(a) of the Outer state is satisfactorily developing its management pro- Continental Shelf Lands Act (43 U.S.C. 133 1 (a)). or the gram. No coastal state is eligible to receive more than siting, construction. expansion. or operation of any new two grants pursuant to this subsection. or expanded energy facilities directly required by such ex- (b) Any coastal state which has completed the devel- ploration, develop!nent. or production. opment of its management program shall submit such (14) The term -person" me= any individual: any cor- program to the Secretary for review and approval pursu- poration. partnership, association, or other entity ant to section 306. organized or existing under the laws of any state: the [305 revised by PL 101-5081 Environmet" Reporter 107 COASTAL ZONE ACT 71:8005 ADMINISTRATIVE GRANTS (D) An identification of the means by which the State (306 revised by PL 101-5081 proposes to exert control over the land uses and water SEC. 306. (a) The Secretary may make grants to any uses referred to in subparagraph (B), including a list of coastal state for the purpose of administering that state's relevant State constitutional provisions, laws, regula- management program, it the state matches any such tions, and judicial decisions. grant according to the following ratios of Federal-to- (E) Broad guidelines on priorities of uses in particular State contributions for the applicable fiscal year: areas, including specifically those uses of lowest priority. (1) For those States for which programs were ap. (F) A description of the organizational structure pro- proved prior to enactment of the Coastal Zone Act posed to implement such management program, includ- Reauthorization Amendments of 1990, 1 to I for any ing 'the responsibilities and interrelationships of local. fiscal year. areawide, State, regional, and interstate agencies in the (2) For programs approved after enactment of the management process. Coastal Zone Act Reauthorization Amendments of (G) A definition of the term 'beach' and a planning 1990, 4 to I for the first fiscal year, 2.3 to I for the process for the protection of, and access to, public second fiscal year, 1.5 to I for the third fiscal year, and I beaches and other public coastal areas of environmental, to I for each fiscal year thereafter. recreational, historical, esthetic, ecological, or cultural (b) The Secretary may make a grant to a coastal state value. under subsection (a) only if the Secretary finds that the (H) A planning process for energy facilities likely to management program of the coastal state meets all be located in, or which may significantly affect, the applicable requirements of this title and has been ap- coastal zone, including a process for anticipating the proved in accordance with subsection (d); management of the impacts resulting from such (c) Grants under this section shall be allocated to facilities. coastal states with approved programs based on rules (1) A planning process for assessing the effects of, and and regulations promulgated by the Secretary which studying and evaluating ways to control, or lessen the shall take into account the extent and nature of the impact of, shoreline erosion, and to restore areas ad- shoreline and area covered by the program, population of versely affected by such erosion. .he area, and other relevant factors. The Secretary shall (3) The State has- establish, after consulting with the coastal states, maxi- (A) coordinated its program with local, areawide, and mum and minimum grants for any fiscal year to promote interstate plans applicable to areas within the coastal equity between coastal states. and effective coastal zone- management. (i) existing on January I of the year in which the (d) Before approving a management program submit- State's management program is submitted to the Secre- ted by a coastal state, the Secretary shall find the tary; and following: (ii) which have been developed by a local government, (1) The State has developed and adopted a manage- an areawide agency, a regional agency, or an interstate ment program for its coastal zone in accordance with agencyand rules and regulations promulgated by the Secretary, (B) established an effective mechanism for continuing after notice, and with the opportunity of full participa- consultation and coordination between the management tion by relevant Federal agencies, State agencies, local agency desigpated pursuant to paragraph (6) and with governments, regional organizations, port authorities, local governments, interstate agencies, regional agencies. and other interested parties and individuals, public and and areawide agencies within the coastal zone to assure private, which is adequate to carry out the purposes of the full participation of those local governments and this title and is consistent with the policy declared in agencies in carrying out the purposes of this title; except section 303. that the Secretary shall not find any mechanism to be (2) The management program includes each of the effective for purposes of this subparagraph unless it following required program elements: requires that- (A) An identification of the boundaries of the coastal (i) the management agency, before implementing any zone subject to the management program. management program decision which would conflict (B) A definition of what shall constitute permissible with any local zoning ordinance, decision, or other ac- land uses and water uses within the coastal zone which tion, shall send a notice.of the management program. have a direct and significant impact on the coastal decision to any local government whose zoning authority waters. is affected, (C) An inventory and designation of areas of particu- (ii) within the 30-day period commencing on the date lar concern within the coastal zone. of receipt of that notice, the local government may Pubfi by TME BUREAU OF NATIONAL AFFAIRS. INC.. WeshWqM, D.C. 20037 108 71:8M FEDERAL LAWS submit to the management agency written comments on (B) Direct State land and water use planning and the management program decision, and any recommen- regulation. dation for alternatives; and (C) State administrative review for consistency with (iii) the management agency. if any comments are the management program of all development plans, submitted to it within the 30-day period by any local projects, or land and water use regulations, including government- exceptions and variances thereto, proposed by any State (1) shall consider the comments; or local authority or private developer, with power to (11) may, in its discretion, hold a public hearing on the approve or disapprove after public notice and an oppor- comments. and tunity for hearings. (111) may not take any action within the 30-day (12) The management program contains a method of period to implement the management program decision. assuring that local land use and water use regulations (4) The State has held public hearings in the develop- within the coastal zone do not unreasonably restrict or ment of the management program. exclude land uses and water uses of regional benefit. (5) The management program and any changes there. (13) The management program provides for- to have been reviewed and approved by the Governor of (A) the inventory and designation of areas that con- the State. tain one or more coastal resources of national signifi- (6) The Governor of the State has designated a single cance;and State agency to receive and administer grants for imple- (B) specific and enforceable standards to protect such menting the management program. resources. (7) The State is organized to implement the manage- (14) The management program provides for public ment program. participation in permitting processes, consistency deter- (8) The management program provides for adequate minations, and other similar decisions. consideration of the national interest involved in plan- (IS) The management program provides a mechanism ning for, and managing the coastal zone, including the to ensure that all State agencies will adhere to the siting of facilities such as energy facilities which are of program. greater than local significance. In the case of energy .(16) The management program contains enforceable facilities, the Secretary shall find that the State has policies and mechanisms to implement the applicable given consideration to any applicable national or inter- requirements of the Coastal Nonpoint Pollution Control state energy plan or program. Program of the State required by section 6217 of the @9) The management program includes procedures Coastal Zone Act Reauthorization Amendments of whereby specific areas may be designated for the pur- 1990. pose of preserving or restoring them for their conserva- (e) A coastal state may amend or modify a manage- tion, recreational, ecological, historical, or esthetic ment program which it has submitted and which has values. been approved by the Secretary under this section, (10) The State, acting through its chosen agency or subject to the following conditions: agencies (including local governments, areawide agen- cies, regional agencies, or interstate agencies) has au- (1) The State shall promptly notify the Secretary of thority for the management of the coastal zone in ac- any proposed amendment, modification, or other pro- cordance with the management program. Such authority gram change and submit it for the Secretary's approval. shall include power- The Secretary may suspend all or part of any grant (A) to administer land use and water use regulations made under this section pending State submission of the to control development to ensure compliance with the proposed amendments, modification, or other program management program, and to resolve conflicts among change. competing uses; and (2) Within 30 days after the date the Secretary (B) to acquire fee simple and less than fee simple receives any proposed amendment, the Secretary shall interests in land, waters, and other property through notify the State whether the Secretary approves or condemnation or other means when necessary to achieve disapproves the amendment, or whether the Secretary conformance with the management program. finds it is necessary to extend the review of the proposed (11) The management program provides for any one amendment for a period. not to exceed 120 days after the or a combination of the following general techniques for date the Secretary received the proposed amendment. control of land uses and water uses within the coastal The Secretary may extend this period only as necessary zone: to meet the requirements of the National Environmental (A) State establishment of criteria and standards for Policy Act of 1969 (42 U.S.C. 4321 et seq.). If the local implementation, subject to administrative review Secretary does not notify the coastal state that the and enforcement. Secretary approves or disapproves the amendment with- Ej v" wnwn Raw to 1 09 S-M COASTAL ZONE ACT 71:8007 in that period, then the amendment shall be conclusively (b) The Secretary may make grants to any eligible presumed as approved. coastal state to assist that state in meeting one or (3)(A) Except as provided in subparagraph (B), a more of the following objectives: coastal state may not implement any amendment, modi- (1) The preservation or restoration of specific areas fication, or other change as part of its approved manage- of the state that (A) are designated under the manage- ment program unless the amendment, modification, or ment program procedures required by section 306 other change is approved by the Secretary under this (d)(9) because of their conservation 'recreational, eco- subsection. logical, or esthetic values, or (B) contain one or more (B) The Secretary, after determining on a preliminary coastal resources of national significance, or for the basis, that an amendment, modification, or other change purpose of restoring and enhancing shellfish production which has been submitted for approval under this sub- by the purchase and distribution of clutch material on section is likely to meet the program approval standards publicly owned reef tracts. in this section, may permit the State to expend funds (306A(b)(1) amended by PL 101-5081 awarded under this section to begin implementing the (2) The redevelopment of deteriorating and under- proposed amendment, modification, or change. This pre- utilized urban waterfronts and ports that are designated liminary approval shall not extend for more than 6 under section 305(b)(3) in the state's management months and may not be renewed. A proposed amend- program as areas of particular concern. ment, modification, or change which has been given (3) The provision of access of public beaches and preliminary approval and is not finally approved under other public coastal areas and to coastal waters in this paragraph shall not be considered an enforceable accordance with the planning process required under policy for purposes of section 307. section 305(b)(7). (Editor's note.- Sec. 6206(b) of PL 101-508 provides: (c) (1) Each grant made by the Secretary under "(b) Additional Program Requiriments.-Each State this section shall be subject to such terms and con- which submits a management program for approval ditions as may be appropriate to ensure that the grant under section 306 of the Coastal Zone Management Act is used for purposes consistent with this section. of 1972, as amended by this subtitle (including a State (2) Grants made under this section may be used for- which submitted a program before the date of enactment (A) the acquisition of fee simple and other interests of this Act), shall demonstrate to the Secretary- in land; (1) that the program complies with section 306(d)(14) (B) low-cost construction projects determined by the and (IS) of that Act, by not later than 3 years after the Secretary to be consistent with the purposes of this date of the enactment of this Act: and section, including but not limited to, paths, walkways, (2) that the program complies with section 306(d)(16) fences, parks, and the rehabilitation of historic buildings of that Act, by not later than 30 months after the date of and structures; except that not more than 50 per centum publication of final guidance under section 6217(g) of of any grant made under this section may be used for this Act."] such construction projects; RESOURCE MANAGEMENT (C) in the case of grants made for objectives IMPROVEMENT GRANTS described in subsection (b)(2)- [306A added by .PL 96-4641 (i) the rehabilitation or acquisition of piers to provide increased public use, including compatible SEC. 306A. (a) For purposes of this section- commercial activity, (1) The term 'eligible coastal state' means a coastal (ii) the establishment of shoreline stabilization state that for any riscal year for which a grant is measures including the installation or rehabilitation of applied for under this section- bulkheads for the purpose of public safety or increasing ((A) has a management program approved under public access and use, and section 306; and (iii) the removal or replacement of pilings where (B) in the judgment of the Secretary, is making such action will provide increased recreational use of satisfactory progress in activities designed to result in urban waterfront areas, significant improvement in achieving the coastal manage- but activities provided for under this paragraph shall ment objectives specified in section 303(2)(A) through not be treated as construction projects subject to the (1). limitations in paragraph (B); (2) The term 'urban waterfront and port' means any (D) engineering designs, specifications, and other developed area that is densely populated and is being appropriate reports; and used for, or has been used for, urban residential (E) educational, interpretive, and management costs recreational, commercial, shipping or industrial put- and such other related costs as the Secretary determines poscs. to be consistent with the purposes of this section. Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. W&Shlngt0n. D.C. 20037 1 0 71:8= FEDERAL LAWS (d)(1) The Secretary may make grants to any coastal (B) After any final judgment, decree, or order of any state for the purpose of carrying out the project or Federal court that is appealable under section 1291 or purpose for which such grants are awarded, if the state 1292 of title 28, United States Code, or under any other matches any such grant according to the following ratios applicable provision of Federal law, that a specific Fed- of Federal to state contribution for the applicable fiscal eral agency activity is not in compliance with subpara- year: 4 to I for fiscal 1986; 2.3 to I for fiscal year 1987; graph (A), and certification by the Secretary that medi- 1.5 to I for fiscal year 1988; and I to I for each fiscal ation under subsection (h) is not likely to result in such year after fiscal year 1988. compliance, the President may, upon written request (Former 306A(d)(1) deleted and new (d)(1) added by from the Secretary, exempt from compliance those ele- PL 99-2721 ments of the Federal agency activity that are found by (2) Grants provided under this section may be used the Federal court to be inconsistent with an approved to pay a coastal state's share of costs required under State program, if the President determines that the any other Federal program that is consistent with the activity is in the paramount interest of the United purposes of this section. States. No such exemption shall be granted on the basis (3) The total amount of grants made under this of a lack of appropriations unless the President has section to an eligible coastal state for any fiscal specifically requested such appropriations as part of the y budgetary process, and the Congress has failed to make year may not exceed an amount equal to 10 per ccntum available the requested appropriations. of the total amount appropriated to carry out this (C) Each Federal agency carrying out an activity section for such fiscal year. subject to paragraph (1) shall provide a consistency (C) With the approval of the Secretary, an eligible determination to the relevant State agency designated coastal state may allocate to a local. government, an under section 306(d)(6) at the earliest practicable time, arcawide. agency designated under section 204 of the but in no case later than 90 days before final approval of Demonstration Cities and Metropolitan- Development the Federal activity unless both the Federal agency and Act of 1966, a regional agency, or an interstate agency, the State agency agree to a different schedule. a portion of any grant made under this section for [307(c)(1) revised by PL 101-5081 the purpose of carrying out this section; except Mat (2) Any Federal agency which shall undertake any such an allocation shall not relieve that state of the development project in the coastal zone of a sta h 11 responsibility for ensuring that any funds so allocated Ite s la are applied in furtherance of the state's approved insure that the project is, to the maximum extent prac. management program. ticable, consistent with the enforceable policies of ap- (f) In addition to providing grants under this section, proved state management programs. the Secretary shall assist eligible coastal states and their [307(c)(2) amended by PL 101-5081 local governments in identifying and obtaining other (3)(A) After final approval by the Secretary of a state's sources of available Federal technical and financial management program, any applicant for a required assistance regarding the objectives of this section. Federal license or permit to conduct an activity, in or COORDINATION AND COOPERATION outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state SEC. 307. (a) In carrying out his functions and respon- shall provide in the application to the licensing or per- sibilities under this title. the Secretary shall consult with, mitting agency a certification that the proposed activity cooperate with. and. to the maximum extent practicable, complies with the enforceable policies of the state's coordinate his activities with other interested Federal approved program and that such activity will be conduct- agencies. ed in a manner consistent with the program. At the same (b) The Secretary shall not approve the management time, the applicant shall furnish to the state or its program submitted by a state pursuant to section 306 un- designated agency a copy of the certification, with all less the views of Federal agencies principally affected by necessary information and data. Each coa tal state shall such program have been adequately considered. establish procedures for public notice in the case of all (c)(1)(A) Each Federal agency activity within or such certific-ations and. to the extent it deems appropri- outside the coastal zone that affects any land or water ate. procedures for public hearings in connection there- use or natural resource of the coastal zone shall be with. At the earliest practicable time, the state or its carried out in a manner which is consistent to the designated agency shall notify the Federal agency con- maximum extent practicable with the enforceable poli- ccrned that the state concurs with or objects to the cies of approved State management programs. A Federal applicant's certification. If the state or its designated agency activity shall be subject to this paragraph unless agency fails to furnish the required notification within it is subject to paragraph (2) or (3). six months after receipt of its copy of the applicant's Envkwwww ReM ter 11 1 COASTAL ZONE ACT 71:8009 certification, the state's concurrence with the certifica- (iii) the Secretary Finds. pursuant to subparagraph (A). tion shall be conclusively presumed.-No license or permit that each activity which is described in detail in such plan shall be granted by the Federal agency until the state or is consistent with the objectives of this title or is its designated agency has concurred with the applicant's otherwise necessary in the interest of national securitv. certification or until, by the state's failure to act. the If a state concurs or is conclusively presumed to con- concurrence is conclusively presumed, unless the Secre- cur. or if the Secretary makes such a Finding, the tary, on his own initiative or upon appeal by the appli- provisions of subparagraph (A) are not applicable with cant, finds, after providing a reasonable opportunity for respect to such person. such state, and any Federal detailed comments from the Federal agency involved license or permit which is required to conduct 'any activi- and from the state, that the activity is consistent with ty affecting-land uses or water uses in the coastal zone of the objectives of this title or is otherwise necessary in the such state which is described in detail in the plan to which interest of national security. such concurrence or finding applies. If such state objects (307(c)(3)(A) amended by PL 101-5081 to such certification and if the Secretary fails to make a (8) After the management program of any coastal finding under clause (iii) with respect to such certifica- state has been approved by the Secretary under section tion. or if such person fails substantially to comply with 306, any person who submits to the Secretary of the such plan as submitted, such person shall submit an Interior any plan for the exploration or development of. amendment to such plan, or a new plan. to the Secretary or producti-on from. any area which has been leased un- of the Interior. With.respect Lo any amendment or new der the Outer Continental Shelf Lands Act (43 U.S.C. plan submitted to the Secretary of the Interior pursuant 1331 et seq.) and regulations under such Act shall, with to the preceding sentence. the applicable time period for respect to any exploration, development. or prodLCtion purposes of concurrence by conclusive presumption un- described in such plan and affecting any land use or water der subparagraph (A) is 3 months. use or natural resource of the coastal zone of such state, (d) State and local governments submitting attach to such plan a certification that each activity applications for Federal assistance under other Federal which is described in detail in such plan complies with the programs, in or outside of the coastal zone, affecting any land or water use of natural resource of the coastal zone enforceable policies of such state's approved management shall indicate the views of the appropriate state or local program and will be carried out in a manner consistent agency as to the relationship of such activities to the with such program. No Federal official or agency approved management program for the coastal zone. shall grant such person any license or permit for any ac- Such applications shall be submitted and coordinated in tivity described in detail in such plan until such state or accordance with the provisions of title IV of the Inter- its designated agency receives a copy of such certification governmental Coordination Act of 1968 (82 Stat. 1098). and plan, together with any other necessary data and in- Federal agencies shall not approve proposed projects formation. and until - that are inconsistent with the enforceable policies of a [307(c)(3)(B) introductory text amended by PL coastal state's management program, except upon a 101-5081 finding by the Secretary that such project in consistent (i) such state or its designated agency, in accordance with the purposes of this title or necessary in the interest with the procedures required to be established by such of national security. state pursuant to subparagraph (A), concurs with such [307(d) amended by PL 101-5081 person*s certification and notifies the Secretary and the (e) Nothing in this title shall be construed - Secretary of the Interior of such concurrence: ( 1) to diminish either Federal or state jurisdiction. '(ii) concurrence by such state with such certifica- responsibility, or rights in the Field of planning, develop- tion is conclusively presumed as provided for in subpara- ment, or control of water resources. submerged lands, or graph (A). except if such state fails to concur with or navigable waters; nor to displace. supersede. limit. or object to such certification within three months after modify any interstate compact or the jurisdiction or receipt of its copy of such certification and supporting responsibility of any legally established joint or common information. such state shall provide the Secretary, the agency of two or more states or of* two or more states and appropriate federal agency, and such person with a the F@deral Government: nor to limit the authority'of written statement describing the status of review and the Coneress to authorize and fund projects: basis for further delay in issuing a final decision. and if (2) as superseding. modifying, or repealing existing such statement is not so provided. concurrence by such laws applicable to tht variou's @ederal agencies: nor to state with such certification shall be -conclusively pre- affect the jurisdiction, powers. or prerogatives of the sumed: or International Joint Commission. United States and f(ii) revised by PL 95-372, September 18, 19781 Canada, the Permanent Engineering Board. and the 3-6-91 Pubitsroad by THE BUREAU OF NATIONAL AFFAIRS, INC., WashingtOn. D.C. 20037 1 1 2 FEDERAL LAWS 71:8010 United States operating entity or entities established pur. loans made pursuant to this section as in effect before suant to the Columbia River Basin Treaty, signed at the date of the enactment of the Coastal Zone Act Washington, January 17, 1961, or the International Reauthorization Amendments of 1990, and any repay- Boundary and Water Commission. United States and ment schedule established pursuant to this Act as in Mexico. - effect before that date of enactment, are not altered by (f) Notwithstanding any other provision of this title, any provision of this title. Such loans shall be repaid nothing in this title shall in any way affect any require- under authority of this subsection and the Secretary may ment (1) established by the Federal Water Pollution Con- issue regulations governing such repayment. If the Sec- trol Act, as amended, or the Clean Air Act, as amended, rctary finds that any coastal state or 'unit of local or (2) established by the Federal Government or by any government is unable to meet its obligations pursuant to state or local government pursuant to-such Acts. Such this subsection bemuse the actual increases in employ- requirements shall be incorporated in any program ment and related population resulting from coastal ener- developed pursuant to this title and shall be the water gy activity and the facilities associated with such activity pollution control and air pollution control requirements do not provide adequate revenues to enable such State or applicable to such program. unit to meet such obligations in accordance with the (g) When any state's coastal zone management appropriate repayment schedule, the Secretary shall, program, submitted for approval or proposed for after review of the information submitted by such State modification pursuant to section 306 of this title, includes or unit, take any of the following actions: requirements as to shorelands which also would be sub- (A) Modify the terms and conditions of such loan. ject to any Federally supported national land use pro- (B) Refinance the loan. gram which may be hereafter enacted, the Secretary, (C) Recommend to the Congress that legislation be prior to approving such program, shall obtain the con- enacted to forgive the loan. currence of the Secretary of the Interior, or such other (2) Loan repayments made pursuant to this subsection Federal official as may be designated to administer the shall be retained by the Secretary as offsetting collec. national land use program with respect to that portion of tions, and shall be deposited into the Coastal Zone the coastal zone management program affecting such in- Management Fund established under subsection (b). land areas. (h) In case of serious disagreement between any (b)(1) The Secretary shall established and maintain a Federal agency and a coastal state - fund, to be known as the 'Coastal Zone Management (1) in the development or the initial implementation of Fund' (hereinafter in this section referred to as the a management program under section 305. or 'Fund'), which shall consist of amounts retained and (2) in the administration of a management program deposited into the Fund under subsection (a). approved under section 306; (2) Subject to amounts provided in appropriation the Secretary, with the cooperation of the Executive Of- Acts, amounts in the Fund shall be available to the rice of the President, shall seek to mediate the differences Secretary for use for the following: involved in such disagreement. The process of such (A) Expenses incident to the administration of this mediation shall, with respect to any disagreement title, in an amount not to exceed- described in paragraph (2), include public hearings which (i) S5,000,000 for fiscal year 1991. shall be conducted in the local area concerned. (ii) S5,225,000 for fiscal year 1992, (i) With respect to appeals under subsections (c)(3) (iii) S5,460,125 for fiscal year 1993; and (d) which are submitted after the date of the (iv) S5,705,830 for fiscal year 1994, and enactment of the Coastal Zone Act Reauthorization (v) S5,962,593 for fiscal year 1995. Amendments of 1990, the Secretary shall collect an (B) After use under subparagraph (A)- application fee of not less than $200 for minor appeals (i) projects to address management issues which are and not less than S500 for major appeals, unless'the regional in scope, including interstate projects; Secretary, upon consideration of an applicant's request (ii) demonstration projects which have high potential for a fee waiver, determines that the applicant is unable for improving coastal zone management, especially at to pay the fee. The Secretary iliall collect such other fees the local level; as are necessary to recover the full costs of administering (iii) emergency grants to State coastal zone manage- and processing such appeals under subsection (c). ment agencies to address unforeseen or disaster-related [307(i). added by PL 101-509] circumstances; COASTAL ZONE MANAGEMENT FUND (iv) appropriate awards recognizing excellence in [308 revised by PL 95-372, PL 101-5081 coastal zone management as provided in section 314; SEC. 308. (a)(1) The obligations of any coastal state (v) program development grants as authorized by or unit of general purpose local government to repay section 305; and Fj w"annom Fleponw 1 3 S-M COASTAL ZONE ACT 71:8011 (vi) to provide financial support to coastal States for criteria established by the Secretary under subsection use for investigating and applying the public trust doc- (d). The Secretary shall ensure that funding decisions trinc to implement State management programs ap. under this section take into consideration the fiscal and proved under section 306. technical needs of proposing States and the overall merit (3) On December I of each year, the Secretary shall of each proposal in terms of benefits to the public. transmit to the Congress an annual report on the Fund, (d) Within 12 months following the date of enactment including the balance of the Fund and an itemization of of this section, and consistent with the notice and partici- all deposits into and disbursements from the Fund in the pation requirements established in section 317, the Sec- preceding fiscal year. retary shall promulgate regulations concerning coastal COASTAL ZONE ENHANCEMENT GRANTS zone enhancement grants that establish- (309 revised by PL 96-464; PL 101-508] (1) specific and detailed criteria that must be ad- SEC. 309. (a) For purposes of this section, the term dressed by a coastal state (including the State's priority 'coastal zone enhancement objective' means any of the needs for improvement as identified by the Secretary following objectives: after careful consultation with the State) as part of the State's development and implementation of coastal zone (1) Protection, restoration, or enhancement of the enhancement objectives; existing coastal wetlands base, or creation of new coastal (2) administrative or procedural rules or requirements wetlands. as necessary to facilitate the development and implemen- (2) Preventing or significantly reducing threats to life tation of such objectives by costal states; and and destruction of property by eliminating development (3) other funding award criteria as are necessary or and redevelopment in higb-hazard areas, managing de- appropriate to ensure that evaluations of proposals, and velopment in other hazard areas, and anticipating and decisions to award funding, under this section are based managing the effects of potential sea level rise and Great on objective standards applied fairly and equitably to Lakes level rise. those proposals. (3) Attaining increased opportunities for public ac- (e) A State shall not be required to contribute any cess, taking into account current and future public ac- portion of the cost of any proposal for which funding is cess needs, to coastal areas of recreational, historical, awarded under this section. aesthetic, ecological, or cultural value. (f) Beginning in fiscal year 1991, not less than 10 (4) Reducing marine debris entering the Nation's percent and not more than 20 percent of the amounts coastal and ocean environment by managing uses and appropriated to implement sections 306 and 306A of this activities that contribute to the entry of such debris. title shall be retained by the Secretary for-use in imple- (5) Development and adoption of procedures to assess, menting this section, up to a maximum of S10,000,000 consider, and control cumulative and secondary impacts annually. of coastal growth and development, including the collec- (g) If the Secretary finds that the State is not under- tive effect on various individual uses or activities on taking the actions committed to under the terms of the coastal resources, such as coastal wetlands and fishery grant, the Secretary shall suspend the State's eligibility resources. for further funding under this section for at least one (6) Preparing and implementing special area manage- year. ment plans for important coastal areas. (7) Planning for the use of ocean resources. TECHNICAL ASSISTANCE (8) Adoption of procedures and enforceable policies to [310 added by PL 101-508) help facilitate the siting of energy facilities and Govern- SEC. 3 10. (a) The Secretary shall conduct a program ment facilities and energy-re 'lated activities and Govern- of technical assistance and managment-oriented research ment activities which may be of greater than local necessary to support the development and implementa- significance. tion of State coastal management program amendments (b) Subject to the limitations and goals established in under section 309, and appropriate to the furtherance of this section, the Secretary may make grants to coastal international cooperative efforts and technical assistance states to provide funding for development and submis- in coastal zone management. Each department, agency, sion for Federal approval of program changes that sup- and instrumentality of the executive branch of the Fcd- port attainment of one or more coastal zone enhance- cral Government may assist the Secretary, on a reim-. ment objectives. bursable basis or otherwise, in carrying out the purposes (c) The Secretary shall evaluate and rank State pro- of this section, including the furnishing of information to posals for funding under this section, and make funding the extent permitted by law, the transfer of personnel awards based on those proposals, taking into account the with their consent and without prejudice to their position 3-8-91 Published try THE BUREAU OF NATIONAL AFFAIRS, INC., Wsshwq=. D.C. 20037 1 1 4 71:8012 FEDERAL LAWS and rating, and the performance of any research, study, evaluation. Each evaluation shall be prepared in report and technical assistance which does not interfere with form and shall include written responses to the written the performance of the primary duties of such depart- comments received during the evaluation process. The ment, agency, of instrumentality. The Secretary may final report of the evaluation shall be completed within enter into contracts or other arrangements with any 120 days after the last public meeting held in the State qualified person for the purposes of carrying out this being evaluated. Copies of the evaluation shall be imme- subsection. diately provided to all persons and organizations partici- (b)(1) The Secretary shall provide for the coordina- pating in the evaluation process. tion of technical assistance. studies. and research activi- [312(b) revised by PL 101-508] ties under this section with any other such activities that (c)(1) The Secretary may suspend payment of any are conducted by or subject to the authority of the portion of financial assistance extended to any coastil Secretary. state under this title, and may withdraw any unexpended (2) The Secretary shall make the results of research portion of such assistance, if the Secretary determines and studies conducted pursuant to this section available that the coastal state is failing to adhere to (A) the to coastal states in the form of technical assistance management program or a State plan developed to publications, workshops, or other means appropriate. manage a national estuarine reserve established under (3) The Secretary shall consult with coastal states on section 3 15 of this title, or a portion of the program or a regular basis regarding the development and imple- plan approved by the Secretary, or (B) the terms of any mentation of the program established by this section. grant or cooperative agreement funded under this title. PUBLIC HEARINGS (2) Financial assistance may not be suspended under paragraph (1) unless the Secretary provides the Gover- SEC. 311. All public hearings required under this title nor of the coastal state with- must be announced at least thirty days prior to the hear- (A) written specifications and a schedule for the M2 date. At the time of the announcement. all agency actions that should be taken by the State in order that materials pertinent to the hearings. including documents. such suspension of financial assistance may be with- itudies. and other data, must be made available to the drawn-, and public for revie%% and study. As similar materials are sub- (B) written specifications stating how those funds sequently developed. they shall be made available to the from the suspended financial assistance shall be expend- public as thev become available to the agency. ed by the coastal state to take the actions referred to in RE'VIEW OF PERFORMANCE subparagraph (A). (312 revised by PL 96-4641 (3) The suspension of financial assistance may not last SEC. 312. (a) The Secretary shall conduct a con- for less than 6 months or more than 36 months after the tinuing review of the performance of coastal states date of suspension. with respect to coastal management. Each review shall (312(c) amended by PL 99-272; revised by PL include a written evaluation with an assessment and 101-5081 detailed findings concerning the extent to which the state (d) The Secretary shall withdraw approval of the has implemenEed and enforced the program approved by management program of any coastal state and shall che Secretary, addressed the coastal management needs withdraw financial assistance available to that State identified in section 303(2)(A) through (K). and ad- under this title as well as any unexpended portion of hered to the terms of any grant, loan, or cooperative such assistance, if the Secretary determines that the agreement funded under this title. coastal state has failed to take the actions referred to in (312(a) amended by PL 101-508] subsection (c)(2)(A). (b) In evaluating a coastal state's performance, the (312(d) revised by PL 101-5081 Secretary shall conduct the evaluation in an open and (e) Management program approval and financial public manner, and provide full opportunity for public assistance may not be withdrawn under subsection (d). participation, including holding public meetings in the unless the Secretary gives the coastal state notice of State being evaluated and providing opportunities for the proposed withdrawal and an opportunity for a the submission of written and oral comments by the public hearing on the pr9posed action. Upon the with- public. The Secretary shall provide the public with at drawal of management program approval under this least 45 days' notice of such public meetings by placing a. subsection (d), the Secretary shall provide the coastal notice in the Federal Register, by publication of timely state with written specifications of the actions that notices in newspapers of general circulation within the should be taken, or not engaged in, by the state in State being evaluated. and by communications with order that such withdrawal may be canceled by the persons and organizations known to be interested in the Secretary. Environt w Pewter 11 5 S-882 COASTAL ZONE ACT 71:8013 (f) [Repealed] (2) 5 local governments which have made the most [312(f) repealed by PL 101-508] progress in developing and implementing the coastal zone management principles embodied in this title: and [Editor's note.- Section 9(b) of PL 96-464 provides: (3) up to 10 graduate students whose academic study -(b) Within two hundred and seventy days after promises to contribute materially to development of new the date of the enactment of this Act, the Secretary of or improved approaches to coastal zone management. Commerce shall issue such regulations as may oe (c) In making selections under subsection (b)(2) the necessary or appropriate to administer section 312 of Secretary shall solicit nominations from the coastal the Coastal Zone Management Act of 1972 (as states, and shall consult with experts in local government amended by subsection (a)* of this section)."] planning and land use. RECORDS AND AUDIT (d) In making selections under subsection (b)(3) the Secretary shall solicit nominations from coastal states SEC. 313. (a) Each recipient of a grant under this and the National Sea Grant College Program. title or of financial assistance under Sec. 308 shall (e) Using sums in the Coastal Zone Management keep such records as the Secretary shall prescribe, Fund established under section 308, the Secretary shall including. records which fully disclose the amount and establish and execute appropriate awards, to be known disposition of the funds received under the grant and of as the *Walter B. Jones Awards', including- the proceeds of such assistance. the total cost of the pro@ (1) cash awards in an amount not to exceed $5,000 ject or undertaking supplied by other sources. and such each; other records as will facilitate an effective audit. (2) research grants; and (b) The Secretary and the Comptroller General of the (3) public ceremonies to acknowledge such awards. United States, or any of their duly authorized represen- ADVISORY COMMITTEE tatives. shall - ( 1) after any grant is made under this title or any finan- SEC. 314. (Repealed] cial assistance is provided under section 308(d): and (2) until the expiration of 3 years after - (314 repealed by PL 99-272] (A) completion of the project, program, or other un- NATIONAL ESTUARINE RESEARCH dertaking for which such grant was made or used. of, RESERVE SYSTEM (B) -repayment of the loan or guaranteed indebtedness (315 head amended by PL 101-508] for which such financial assistance was provided, have access for purposes of audit and examination to any SEC. 315. (a) Establishment of the System.-There is record. book, document. and paper which belongs to or is established the National Estuarine R@eserve Research used or controlled by, any recipient of the grant funds or System (hereinafter referred to in this section as the any person who entered into any transaction relating to 'System') that consists of- . such Financial assistance and which is pertinent for pur- ( I ) each estuarine sanctuary designated under this poses of determining if the grant funds or the proceeds of section as in effect before the date of the enactment of such Financial assistance are being. or were, used in ac- the Coastal Zone Management Reauthorization Act of cordance with the provisions of.this title. 1985; and @ (2) each estuarine area designated as a national es- (The second 313 was added by PL 101-508] tuarine reserve under subsection (b). WALTER B. JONES EXCELLENCE IN COASTAL Each estuarine sanctuary referred to in paragraph (1) is ZONE MANAGEMENT AWARDS hereby designated as a national estuarine reserve. SEC. 313. (a) The Secretary shall, using sums in the (b) Designation of National Estuarine Reserves.- Coastal Zone Management Fund established under sec- After the date of the enactment of the Coastal Zone tion 308, implement a program to promote excellence in Management Reauthorization Act of 1985. the Sccre- coastal zone management by identifying and acknowi- tary may designate an estuarine area as a national edging outstanding accomplishments in the field. estuarine reserve if- (b) The Secretary shall select annually- (1) the Governor of the coastal State in which the (1) one individual, other than an employee or officer area is located nominates the area for that designation; of the Federal Government, whose contribution to the and field of coastal zone management has been the most (2) the Secretary finds that- significant; (A) the area is a representative estuarine ecosystem that is suitable for long-term research and contributes to the biogeographical and typological balance of the 'Subsecuon (dl,,,i,,,d Smion 112 of Ili, Act, System: Pubtispied by THE BUREAU OF NATIONAL AFFAIRS, INC., washtngton. D.C. 20037 1 16 71:8014 FEDERAL LAWS (B) the law of the coastal State provides long-term (i) for purposes of acquiring such lands and waters, protection for reserve resources to ensure a stable envi- and any property interests therein, as are necessary to ronment for research; ensure the appropriate long-term management of an (C) designation of the area as a reserve will serve to area as a national estuarine reserve, enhance public awareness and understanding of estuar- (ii) for purposes of operating or managing a national ine areas, and provide suitable opportunities for public estuarine reserve and constructing appropriate reserve education and interpretation; and facilities, or (D) the coastal State in which the area is located has (iii) for purposes of conducting educational or inter- complied with the requirements of any regulations issued pretive activities; and by the Secretary to implement this section. (B) to any coastal State or public or private person for (c) Estuarine Research Guidelines.-The Secretary purposes of supporting research and monitoring within a shall develop guidelines for the conduct of research national estuarine reserve that are consistent with the within the System that shall include- research guidelines developed under subsection (c). (1) a mechanism for identifying, and establishing (2) Financial assistance provided under paragraph (1) priorities among, the coastal management issues that shall be subject to such terms and conditions as the should be addressed through coordinated research within Secretary considers necessary or appropriate to protect the System; the interests of the United States, including requiring (2) the establishment of common research principles coastal States to execute suitable title documents setting and objectives to guide the development of research forth the property interest or interests of the United programs within the System; States in any lands and waters acquired in whole or part (3) the identification of uniform research methodolo- with such financial assistance. gies which will ensure comparability of data, the broad- (3)(A) The amount of the financial assistance pro- est application of research results, and the maximum use vided under paragraph (1)(A)(i) with respect to the of the System for research purposes; acquisition of lands and waters, or interests therein, for (4) the establishment of performance standards upon any one national estuarine reserve may not exceed an which the effectiveness of the research efforts and the amount equal to 50 percent of the costs of the lands, value of reserves within the System in addressing the waters, and interests therein or S5,000,000, whichever coastal management issues identified in subsection (1) amount is less. may be measured; and (315(c)(3)(A) amended by PL 101-5081 (5) the consideration of additional sources of funds for (B) The amount of the financial assistance provided estuarine research than the funds authorized under this under paragraph (1)(A)(ii) and (iii) and paragraph Act, and strategies for encouraging the use of such funds (1)(B) may not exceed 70 percent of the costs incurred within the System, with particular emphasis on mecha- to achieve the purposes described in those paragraphs nisms established under subsection (d). with respect to a reserve; except that the amount of the In developing the guidelines under this section, the financial assistance provided under paragraph Secretary @hall consult with prominent members of the (1)(A)(iii) may be up to 100 percent of any costs for estuarine research community. activities that benefit the entire System. (d) Promotion and Coordination of Estuarine Re- [315(c)(3)(B) amended by PL 101-5081 search.-The Secretary shall take such action as is (f) Evaluation of System Performance.-( I) The Sec- necessary to promote and coordinate the use of the retary shall periodically evaluate the operation and man- System for research purposes including- agement of each national estuarine reserve, including (1) requiring that the National Oceanic and Atmo- education and interpretive activities, and the research spheric Administration, in conducting or supporting es- being conducted within the reserve. tuarine research give priority consideration to research (2) If evaluation under paragraph (1) reveals that the that uses the System; and operation and management of the reserve is deficient, or (2) consulting with other Federal and State agencies that the research being conducted within the reserve is to promote use of one or more reserves within the not consistent with the research guidelines developed System by such agencies when conducting estuarine under subsection (c), the Secretary may suspend the research. eligibility of that reserve for financial assistance Linder (e) Financial Assistance.-(I) The Secretary may, in subsection (e) until the deficiency or inconsistency is accordance with such rules and regulations as the Secre- remedied, tary shall promulgate, make grants- (3) The secretary may withdraw the designation of an (A) to a coastal State- estuarine area as a national estuarine reserve if evalua- Fj wwor im t ReM tim 11.7 S-8112 COASTAL ZONE ACT 71:8015 tion under paragraph (1) reveals that- zone including identification and discussion of Federal, (A) the basis for any one or more of the findings made regional, state, and local responsibilities and functions under subsection (b)(2) regarding that area no longer therein. (9) a summary of outstanding problems arising exists; or in the administration of this title in order of priority. (B) a substantial portion of the research conducted (10) a description of the economic, environmental, and within the area, over a period of years, has not been social consequences of energy activity affecting the consistent with the research guidelines developed under coastal zone and an evaluation of the effectiveness of subsection (c). financial assistance under section 308 in dealing with (S) Report.-The Secretary shall include in the report such consequences; (11) a description and evaluation required under section 316 information regarding- of applicable interstate and regional planning and (1) new designations of national estuarine reserves; coordination mechanisms developed by the coastal (2) any expansion of existing national estuarine states; (12) a-sumnyary and evaluation of the research, reserves; studies, and training conducted in support of coastal zone (3) the status of the research program being conduct- management. and (13) such other information as may cd within the System; and be appropriate. (4) a summary of the evaluations made under subsec- [316(a) amended by PL 96-4641 tion (f). (b) The report required by subsection (a) shall contain such recommendations for additional legislation as the [315 amended by PL 96-464; revised by PL 99-2721 Secretary deems necessary to achieve the objectives of COASTAL ZONE MANAGEMENT REPORT this title and enhance its effective operation. (c) (1) The Secretary shall conduct a systematic [316 head revised by PL 96-4641 review of Federal programs, other than this title, that SEC. 316. (a) The Secretary shall consult with the affect coastal resources for purposes of identifying Congress on a regular basis concerning the administra- conflicts between the objectives and administration of tion of this title and shall prepare and submit to such programs and the purposes and policies of this the President for transmittal to the Congress a report title. Not later than I year after the date of the enact- summarizing the administration of this title during each ment of this subsection, the Secretary shall notify each period of two consecutive fiscal years. Each report, which Federal agency having appropriate jurisdiction of any shall, be transmitted to the Congress not later than conflict between its program and the purposes and April I of the year following the close of the policies of this title identified as a result of such review. biennial period to which it pertains, shall include, but (2) The Secretary shall promptly submit a report to not be restricted to (1) an identification of the state the Congress consisting of the information required programs approved pursuant to this title during the under paragraph (1) of this subsection. Such report preceding Federal fiscal year and a description of those shall include recommendations for changes necessary to programs: (2) a listing of the states participating in resolve existing conflicts among Federal laws and the provisions of this title and a description of the programs that affect the uses of coastal resources. status of each state's programs and its accomplishments 1316(c) added by PL 96-4641 during the preceding Federal fiscal year: (3) an itemiza.. tion of the allocation of funds to the various coastal states and a breakdown of the major projects andareas RULES AND REGULATIONS on which these funds were expended; (4) an identiri- SEC 317. The Secretary shall develop and promulgate, cation of any state programs which have been reviewed pursuant to section 553 of title 5. United States Code, and disapproved and a statement of the reasons for such after notice and opportunity for full participation by rele- action: (5) a summary of evaluation findings prepared vant Federal agencies, state agencies, local governments. in accordance with subsection (a) of section 312, and a regional organizations, port authorities, and other in- description of any sanctions imposed under subsections terested parties, both public and private, such rules and (c) and (d) of this section; (6) a listing of all activities regulations as may be necessary to carry out the and projects which, pur3uant to the provisions of sub- provisions of this title. section (c) or subsection (d) of section 307, are not consistent with an applicable approved state manage- AUTHORIZATION OF APPROPRIATIONS ment program. (7) a summary of the regulations issued SEC. 318. (a) There are authorized to be appropriated by the Secretary or in effect during. the preceding to the Secretary - Federal fiscal year; (8) a summary of a coordinated national strategy and program for the Nation's coastal [318(a) revised by PL 96-464; PL 99-272; PL 101-508) 3-a-91 PublWved Dy THE BUREAU OF NATIONAL AFFAIRS. INC.. WaMington. D.C. 20037 1 1 8 71:8016 FEDERAL LAWS (1) such sums, not to exceed S750,000 for each of the SEC. 13. A DM17YISTRA TION fiscal years occurring during the period beginning Octo. (a) [Repealed by PL 95-2191 ber 1. 1990, and ending September 30. 1993, as may be (b) [Superseded by subsection (b) of PL 95-219. necessary for grants under section 305, to remain avail. See editor's note below.) able until expended; (2) such sums, not to exceed S42,000,000 for the fiscal (c) (Repealed by PL 99-2721 year ending September 30, 1991, S48,890,000 for the SEC. 16. SHELLFISH SANITATION REGULA- fiscal year ending September 30, 1992, S58,870,000 for TIONS. the fiscal year ending September 30, 1993, S67,930,000 (a) The Secretary of Commerce shall - for the. fiscal year ending September 30, 1994, and (1) undertake a comprehensive review of all aspects of S90,090,000 for the fiscal year ending September 30, the molluscan shellfish industry, including, but not 1995, as may be necessary for grants under sections 306, limited to. the harvesting, processing, and transportation 306A, and 309, to remain available until expended; of such shellfish, and (3) such sums, not to exceed $6,000,000 for the fiscal (2) evaluate the impact of Federal law concerning year ending September 30, 1991, S6,270,000 for the water quality on the molluscan shellfish industry. fiscal year ending September 30, 1992, S6,552,000 for The Secretary of Commerce shall, not later than April the fiscal year ending September 30, 1993, S6,847,000 30, 1977. submit a report to the Congress of the findings, for the fiscal year ending September 30, 1994, and comments, and recommendations (if any) which result S7,155,000 for the fiscal year ending September 30 from such review and evaluation. (b) The Secretary of Health, Education, and Welfare 1995, as may be necessary for grants under section 31:5, to remain available until expended; and shall not promulgate final regulations concerning the (4) such sums, not to exceed S10,000,000 for each of national shellfish safety program before June 30, 1977. the fiscal years occurring during the period beginning At least 60 days prior to the promulgation of any such October 1, 1990, and ending September 30, 1995, as regulations, the Secretary of Health, Education, and may be necessary for activities under section 3 10 and for Welfare. in consultation with the Secretary of Commerce. administrative expenses incident to the administration of shall publish an analysis (1) of the economic impact of this title; except that expenditures for such administra- such regulations on the domestic shellf-ish industry, and tive expenses shall not exceed S5,000,000 in any such (2) the cost of such national shellfish safety program fiscal year. relative to the benefits that it is expected to achieve. (b) There are authorized to be appropriated until (Editor's note. In addition to repealing Section 15(a) October 1, 1986, to the Fund, such sums, not to exceed of PL 94-370, subsection (b) of PL 95-219 amended S800,000,000, for the purposes of carrying out the Section 5316 of Title 5, United States Code as follows: provisions of section 308. other than subsection (b), of "(140) Assistant Administrator for Coastal Zone which not to exceed S150,000,000 shall be for purposes Management, National Oceanic and Atmospheric Ad- of subsections (c)(1), (c)(2) and (c)(3) of such ministration. Section. (141) Assistant Administrator for Fisheries, National (318(b) amended by PL 96-464] Oceanic and Atmospheric Administration. (c) Federal funds received from other sources shall (142) Assistant Administrators (3). National Oceanic not be used to pay a coastal state's share of costs under -and Atmospheric Administration. section 306 or 309. (143) General Counsel, National Oceanic and [318(c) amended by PL 96-4641 Atmospheric Administration."] (d) The amount of any grant. or portion of a grant, fEditor's note: Sections 2 through I I and 13 of made to a State under any section of this Act which is PL 96-464 amended and have been incorporated into the not obligated, by such State during the fiscal year, or existing language of this Act. Section 12 of PL 96-464 during the second fiscal year after the fiscal year, for follows:) which it was first authorized to be obligated by such State shall revert to the Secretary. The Secretary shall SEC 12, CONGRESSIONAL DISAPPROVAL add such reverted amount to those funds available for PROCEDURE. grants under the section for such reverted amount was (a) (1) The Secretary, after promulgating a final originally made available. rule. shall submit such final rule to the Congress for (318(d) added by PL 99-626] review in accordance with this section. Such final rule [Editor's note: In addition to amending existing sec- shall be delivered to each House of the Congress on tions of the Coastal Zone Management Act of 1972 and the same date and to each House of the Congress while adding new sections to the Act, PL 94-370 includes the it is in session. Such final rule shall be referred to the following sections:] Committee on Commerce, Science, and Transportation Enwannwn Ft 1 19 S-882 COASTAL ZONE ACT 71:8017 of the Senate and to the Committee on Merchant (5) Notwithstanding any other provision of this Marine and Fisheries of the House, respectively. subsection, if a House has approved a concurrent (2) Any such final rule shall become effective in resolution with respect to any Final rule of the accordance with its terms unless, before the end of the Secretary, then it shall not be in order to consider in period of sixty calendar days of continuous session. such House any other concurrent resolution with respect after the date such Final rule is submitted to the Congress, to the same final rule. both Houses of the Congress adopt a concurrent resolu- (c) (1) If a final rule of the Secretary is disapproved tion disapproving such final rule. by the Congress under subsection (a)(2), then the (b) (1) The provisions of this subsection are S@cretary may promulgate a Final rule which relates enacted by the Congress- to the same acts or practices as the final rule disapproved (A) as an exercise in the rulemaking power of the by the Congress in accordance with this subsection. House of Representatives and as such they are deemed Such final rule- a part of the Rules of the House of Representatives (A) shall be based upon- but applicable only with respect to the procedure to be (i) the rulemaking record of the final rule dis- followed in the House of Representatives in the case of approved by the Congress; or concurrent resolutions which are subject to this section. (ii) such rulemaking record and the record estab- and such provisions supersede other rules only to the lished in supplemental rulemaking proceedings con- extent that they are inconsistent with such other rules; ducted by the Secretary in accordance with section 553 of and title 5, United Stateg Code, M any case in which the (B) with full recognition of the constitutional right Secretary determines that it is necessary to supplement. of either House to change the rules (so far as relating the existing rulemaking record, and to the procedure of that House) at any time in the same (B) may contain such changes as the Secretary manner and to the same extent as in the case of any considers necessary or appropriate. other rule of that House. (2) The Secretary after promulgating a Final rule (2) Any concurrent resolution disapproving a final under this subsection, shall submit the final rule to the rule of the Secretary shall, upon introduction or receipt Congress in accordance with subsection (a)(1). from the other House of the Congress, be referred (d) Congressional inaction on, or rejection of a immediately by the presiding officer of such House to concurrent resolution of disapproval under this section the Committee on Commerce, Science, and Transporta- shall not be construed as an expression of approval tion of the Senate or to the Committee on Merchant of the Final rule involved, and shall not be construed Marine and Fisheries of the House, as the case may be. to create any presumption of validity with respect to (3) (A) When a committee has reported a con- such final rule. current resolution, it shall be at any time thereafter in (e) (1) Any interested party may institute such order (even though a previous motion to the same effect actions in the appropriate district court of the United has been disagreed to) to move to proceed to the con- States, including actions for declaratory judgment. as sideration of the concurrent resolution. The motion may be approp@riate to construe the constitutionality shall be highly privileged in the House Of Representa- of any provision of this section. The district court tives, and shall not be debatable. An amendment to immediately shall certify all questions of the consti- such motion shall not be in order, and it shall not be tutionality of this section to the United States court in order to move to reconsider the vote by which the of appeals for the circuit involved, which shall hear motion was agreed to or disagreed to. the matter sitting en banc. (B) Debate in the House of Representatives on the (2) Notwithstanding any other provision of law. any concurrent resolution shall be limited to not more than decision on a matter certified under paragraph (1) ten hours which shall be divided equally between those shall be reviewable by appeal directly to the Supreme favoring and those opposing such concurrent resolution Court of the United States. Such appeal shall be brought and a motion further to limit debate shall not be not later than twenty days after the decision of the debatable. In the House of Representatives, an amend- court of appeals. ment to, or motion to recommit, tht concurrent (8) [Repealed] resolution shall not be in order, and it shall not be. in order to move to reconsider the vote by which such (12(e)(3) repealed by PL 98-6201 concurrent resolution was agreed to or disagreed to (f) (1) For purposes of this section- (4) Appeals from the decision of the Chair relating (A) continuity of session is broken only by an ad- to the application of the rules of the House of Repre- journment sine die, and sentativcs to the procedure relating to a concurrent (B) days on which the House of Representatives is resolution shall be decided without debate. not in session because of an adjournment of more 34-91 Pubfthed f2y TME SURFAU OF NATIONAL AFFAIRS, INC., WashwVton. D.C. 20037 120 71:8018 FEDERAL LAWS than five days to a day certain are excluded in 1329, and 1330) and with State plans developed puts the computation of the periods specified in subsection ant to the Coastal Zone Management Act of 1972, a* (a)(2) and subsection (b). amended by this Act. The program shall serve as an (2) If an adjournment sine die of the Congress update and expansion of the State nonpoint source man- occurs after the Secretary has submitted a final rule agement program developed under section 319 of the under subsection (aXI), but such adjournment occurs- Federaf Water Pollution Control Act. as the program (A) before the end of the period specified in under that section relates to land and water uses affect- subsection (a)(2): and ing coastal waters. (B) before any action necessary to disapprove the (b) Program Contents. - Each State program under final rule is completed under subsection (a)(2); this.section shall provide for the implementation, at a then the Secretary shall be required to resubmit the minimum, of management measures in conformity with Final rule involved at the beginning of the next regular the guidance published under subsection (g), to protect session of the Congress. The period specified in sub- coastal waters generally and shall also contain the section (a)(2) shall begin on the date of such resub- following: mission. (1) Identifying land uses. - The identification of, and (g) For purposes of this section: a continuing process for identifying, land uses which, (1) The term "Secretary" means the Secretary of individually or cumulatively, may cause or contribute Commerce. significantly to a degradation of - (2) The term "concurrent resolution" means a con- (A) those coastal waters where there is a failure to. current resolution the matter after the resolving clause attain or maintain applicable water quality standards or of which is as follows: "That the Congress disapproves protect designated uses, as determined by the State the final rule promulgated by the Secretary. of Commerce pursuant to its water quality planning processes; or dealing with the matter of I which final rule (B) those coastal waters that are threatened by rea- was submitted to the Congress on (The sonably foreseeable increases in pollution loadings from blank spaces shall be filled appropriately.) new or expanding sources. @ (3) The term "rule" means any rule promulgated (2) Identifying critical coastal areas. - The identifi- by the Secretary pursuant to the Coastal Zone Manage- cation of, and a continuing process for identifying, criti- ment Act (16-U.S.C. 1450 et. seq.). cal coastal areas adjacent to coastal waters referred to in (h) The provisions of this section shall take effect paragraph (1)(A) and (B), within which any new Ian on the date of the enactment of this Act and shall uses or substantial expansion of existing land uses shal*l cease to have any force or effect after September 30, -be subject to management measures in addition to those 1985. provided for in subsection (g). [Editor's note: Sec. 6217 of P.L. 101-508 did not (3) Management measures. - The implementation amend the Coastal Zone Management Act of 1972, but and continuing revision from time to time of additional provides the following: management measures applicable to the land uses and PROTECTING COASTAL WATERS areas identified pursuant to paragraphs (1) and (2) that are necessary to achieve and maintain applicable water SEC. 6217. (a) In General. - (1) Program develop. quality standards under section 303 of the Federal Wa- ment. - Not later than 30 months after the date of the ter Pollution Control Act (33 U.S.C. 1313) and protect publication of final guidance under subsection (S), each designated uses. State for which a management program has been ap- (4) Technical assistance. - The provision of technical proved pursuant to section 306 of the Coastal Zone and other assistance to local governments and the public Management Act of 1972 shall prepare and submit to for implementing the measures referred to in paragraph the Secretary and the Administrator a Coastal Nonpoint (3), which may include assistance in developing ordi- Pollution Control Program for approval pursuant to this nances and regulations, technical guidance, and model- section. The purpose of the program shall be to develop ing to predict and assess the effectiveness of such mea- and implement management menures for nonpoint sures, training, financial incentives, demonstration source pollution to restore and protect coastal waters, projects, and other innovations to protect coastal water working in close conjunction with other State and local quality and designated uses. authorities. (2) Program coordination. - A State program under (5) Public participation. - Opportunities for public this section shall be coordinated closely with State and participation in all aspects of the program, including the local water quality plans and programs developed pursu- use of public notices and opportunities for comment, ant to sections 208, 303, 319, and 320 of the Federal nomination procedures, public hearings, technical and Water Pollution Control Act (33 U.S.C. 1288, 1313, financial assistance, public education, and other means. Envi"rdmM ROM tw 121 S-882 COASTAL ZONE ACT 71:8019 (6) Administrative coordination.-The establishment The Secretary shall make amounts withheld under this of mechanisms to improve coordination among State paragraph available to coastal States having programs agencies and between State and local officials responsi- approved under this section. ble for land use programs and permitting. water quality (4) Withholding , water pollution control assist- permitting and enforcement, habitat protection, and ance.-If the Administrator finds that a coastal State public health and safety, through the use of joint project has failed to submit an approvable program as required review, memoranda of agreement, or other mechanisms. by this section, the Administrator shall withhold from (7) State coastal zone boundary modification.-A grants available to the State under section 319 of the proposal to modify the boundaries of the State coastal Federal Water Pollution Control Act. for each fiscal zone as the coastal management agency of the State year until such a program is submitted, an amount equal determines is necessary to implement the recommenda- to a percentage of the grants awarded to the State for tions made pursuant to subsection (e). If the coastal the preceding fiscal year under that section, as follows: management agency does not have the authority to (A) For fiscal year 1996, 10 percent of the amount modify such boundaries, the program shall include rec- awarded for fiscal year 1995. ommendations for such modifications to the appropriate (B) For fiscal year 1997, 15 percent of the amount State authority. awarded for fiscal year 1996. (c) Program Submission, Approval, and Implemcnta- (C) For fiscal year 1998, 20 percent of the amount tion.-(I) Review and approval.-Within 6 months awarded for fiscal year 1997. after the date of submission by a State of a program (D) For fiscal year 1999 and each fiscal year there- pursuant to this section, the Secretary and the Adminis- after, 30 percent of the amount awarded for fiscal year trator shall jointly review the program. The program 1998 or other preceding fiscal year. shall be approved if- The Administrator shall make amounts withheld under (A) the Secretary determines that the portions of the this paragraph available to States having programs ap- program under the authority of the Secretary meet the proved pursuant to this subsection. requirements of this section and the Administrator con- (d) Technical Assistance.-The Secretary and the curs with the determination; and Administrator shall provide technical assistance to coast- (B) the Administrator determines that the portions of al States and local governments in developing and imple- the program under the- authority of the Administrator menting programs under this section. Such assistance meet the requirements of this section and the Secretary shall include- concurs with that determination. (1) methods for assessing water quality impacts asso- (2) Implementation of approved program.-If the ciated with coastal land uses; program of a State is approved in accordance with (2) methods for assessing the cumulative water qual- paragraph (1), the State shall implement the program, ity effects of coastal development; including the management measures included in the (3) maintaining and from time to time revising an program pursuant to subsection (b), through- inventory of model ordinances, and providing other as- (A) changes to the State plan for control of nonpoint sistance to coastal States and local governments in iden- source pollution approved under section 319 of the Fed- tifying, developing, and implementing pollution control eral Water Pollution Control Act; and measures; and (B) changes to the State coastal zone management (4) methods to predict and assess the effects of coastal program developed under section 306 of the Coastal land use management measures on coastal water quality Zone Managernent Act of 1972, as amended by this Act. and designated uses. (3) Withholding coastal management assistance.- (e) Inland Coastal Zone Boundaries.-(I) Review.- If the Secretary finds that a coastal State has fa4led to The Secretary, in consultation with the Administrator of submit an approvable program as required by this sec- the Environmental Protection Agency, shall, within 18 tion, the Secretary shall withhold for each fiscal year months after the effective date of this title, review the until such a program is submitted a portion of grants inland coastal zone boundary of each coastal State otherwise available to the State for the fiscai year under program which has been approved or is proposed for section 306 of the Coastal Zone Management Act of approval under section 306 of the Coastal Zone Manage- 1972, as follows: ment Act of 1972, and evaluate whether the State's (A) 10 percent for fiscal year 1996. coastal zone boundary extends inland to the extent (B) 15 percent for fiscal year 1997. necessary to control the land and water uses that have a (C) 20 percent for fiscal year 1999. significant impact on coastal waters of the State. (D) 30 percent for fiscal year 1999 and each fiscal (2) Recommendation.-If the Secretary, in consulta- year thereafter. tion with the Administrator, finds that modifications to 3-.8-91 Nolishod by THE SUREAU OF NATIONAL AFFAIRS, INC., WaShlngt0n, D.C. 20037 2! 122 71:8020 FEDERAL LAWS the inland boundaries of a State's coastal zone are measures in reducing pollution loads and improving necessary for that State to more effectively manage land water quality. and water uses to protect coastal waters. the Secretarv, (3) Pubfication.-The Administrator, in consultation in consultation with the Administrator, shall recomme@d with the Secretary shall publish- appropriate modifications in writing to the affected .(A) proposed guidance pursuant to tl@is subsection not State. later than 6 months after the date of the enactment of (f) Financial Assistance.-(I) In general.-Upon re- this Act; and quest of a State having a program approved under (B) final guidance pursuant to this subsection not section 306 of the Coastal Zone Management Act of later than t8 months after such effective date. 1972, the Secretary, in consultation with the Adminis- (4) Notice and comment.-The Administrator shall trator, may provide grants to the State for use for provide to coastal States and other interested persons an developing a State program under this section. opportunity to provide written comments on proposed (2) Amount.-The total amount of grants to a State guidance under this subsection. under this subsection shall not exceed 50 percent of the (5) Management measures.-For purposes of this'sub- total cost to the State of developing a program under this section, the term "management measures" means eco- section. nomically achievable measures for the control of the (3) State share.-The State share of the cost of an addition of pollutants from existing and new categories activity carried out with a grant under this subsection and classes of nonpoint sources of pollution. which re- shall be paid from amounts from non-Federal sources. flect the greatest degree of pollutant reduction achiev- (4) Allocation. -Amounts available for grants under able through the application of the best available. non- this subsection shall be allocated among States in ac- point pollution control practices, technologies, processes, cordance with regulations issued pursuant to section siting criteria. operating methods, or other alternatives. 306(c) of the Coastal Zone Management Act of 1972, (h) Authorizations of Appropriations.- except that the Secretary.may use not more than 25 (1) Administrator. -There is authorized to be appro- percent of amounts available for such grants to assist priated to the Administrator for use for carrying out this States which the Secretary, in consultation with the section not more than S1,000,000 for each of fiscal years Administrator, determines are making exemplary pro- 1992, 1991, and 1994. gress in preparing a State program under this section or (2) Secretary.-(A) Of amounts appropriated to the have extreme needs with respect to coastal water quality. Secretary for a fiscal year under section 3 1 8(a)(4) olI the (g) Guidance for Coastal Nonpoint Source Pollution Coastal Zone Management Act of 1972, as amended by Co@@rol.-(I) In General.-The Administrator, in. con- this Act, not more than S1,000,000 shall be available for sultation with the Secretary and the Director of the use by the Secretary for carrying out this section for that United States Fish and Wildlife Service and other Fed- fiscal year, other than for providing in the form of grants eral agencies, shall publish (and periodically revise under subsection (f). thereafter) guidance for specifying management mea- (B) There is authorized to be appropciated to the sures for sources of nonpoint pollution in coastal waters. Secretary for use for- providing in the form of grants (2) Content. -Guidance under this subsection shall under subsection (f) not more than- include. at a minimum- (i) S6,000.000 for fiscal year 1992. (A) a description of a range of methods, measures. or (ii) $12,000,000 for fiscal year 1993; practices. including structural and nonstructural controls (iii) S12,000.000 for fiscal year 1994; and and operation and maintenance procedures, that consti- (iv) S12,000,000 for fiscal year 1995. tute each measure; (i) Definitions.-In this section- (B) a description of the categories and subcategories (1) the term "Administrator" means the Administra- of activities and locations for which each measure may tor of the Environmental Protection Agency; be suitable. (2) the term -coastal State" has the meaning given (C) an identification of the' individual pollutants or the term "coastal state" under section 304 of the Coastal categories or classes of pollutants that may be controlled Zone Management Act of 1972 (16 U.S.C. 1453); by the measures and the water quality effects of the (3) each of the terms "coastal waters", and "coastal measures, zone" has the meaning that term has in the Coastal (D) quantitative estimates of the pollution reduction Management Act of 1972; effects and costs of the measures-, (4) the term "coastal management agency" means a (E) a description of the factors which should be taken State agency designated pursuant to section 306(d)(6) of into account in adapting the measures to specific sites or the Coastal Zone Management Act of 1972. loc@tions: and (5) the term "land use" includes a use of waters adjacent to coastal waters; and (F) anv necessary monitoring techniques to accompa. (6) the term "Secretary" means the Secretary 0 ny the m'casures to assess over time the success of the Commerce.] Environment Reporw 123 AWL qw dllmb@ .M/ %hilk N CODE OF FEDERAL REGULATIONS Relevant portions of 15 CFR 923, 928, 930, and 932 are included in this handbook. For a complete set of Title IX (Part 800 to endl, contact Mary Bixby at (9071415-1719, CHAPTER IX@NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE SUBCHAP= A--GENERAL REGuLAMOZ;S Part Page 902 NOAA information collection requirements Under the Paperwork Reduction Act: OM33 control numbers ....................................................................... 903 Public information ........................................................ 904 Civil procedures ............................................................. 908 Maintaining records and submitting reports on weather modification activities ............................... 909 Policies and procedures regarding disclosure of in- formation and NOAA employee testimony in litigation not involving the United States ............. 911 The United States Geostationary Operational En- vironmental Satellite (GOES) Data Collection System (DCS) .............................................................. 917 National sea grant program funding regulations .... 918 Sea grants ............................................. 4.* ....... SUBC'ELAFTER B--OCE" "D COASTAL RESOURCE M"AGEXCRT 921 National Estuarine Reserve Research System reg- ulations ........................................... . ........................... 922 National Marine Sanctuary program ......................... 923 Coastal zone man gement program development and approval regulations .......................................... 126 924 Monitor marine sanctuary ........................................... 926 Coastal zone man gement program development grants, allocation of funds to States ................ 0..* ... 927 Allocation of section- 306 program administration grants ........................................................................... 928 178 Review of performance ............................o .................... 929 Key Largo National Marine Sanctuary final regu- lations ........................................................................... 930 Federal consistency with approved coastal man- agement programs ..................................................... 186 124 15 CFR Ch. IX (1-1-93 Edition) part Page 931 Coastal energy impact program .................................. 932 Coakal zone enhancement grants program ............. 213 933 Coastal zone man gement research and technical assistance ............................. 935 The Channel Islands National Marine Sanctuary regulations ........ o.......o.....o.......o.................. o.......0 .... 00... 936 The Point Reyes/Farallon Islands Marine Sanctu- ary regulations .........o.....o....... o-o ..... oo ...o.......... oo ........... 937 The Looe Key National Marine ISamctuary regula- tions... ........o.... o. . .........o...o....o....o.......o..... o..0 .....0 ... 0..0 .... 938 The GrWs Reef National Marine Sanctuary regu- lations. ..............o.......................0...... . ......................0.... 941 Pagatele Bay National Marine Sanctuary regula- tions ................. oo ............. o.....0............0..................0....... 942 Cordell Bank National Marine ,Sanctuary ....o.... 943 Flower Garden Bank National Marine Sanctuary. 944 Monterey Bay National Marine Sanctuary .... o ......... C_ VED] SU33CELAPPrER D-GENERAL REGULATIONS OF THE ENVIRONICCNTAL DATA SERVICE 950 Enviro data and information ........ ....... 960 'LAcensing of private remote-sensing. space systems - 970 Deep seabed minin regulations for exploration U- censes ............................* ............................................... 971 Deep seabed mining regulations for, comm ial recovery permits ......................................................... 981 Ocean thermal energy conversion licensing pro- gram ........ . .............................................. . ................... 125 Z7974 Fal=il Rpgister I Vol. 59. No. 103- Tuesday. May'31, 19M Rules and Regulations SUPPLEMENTARY INFORSIATKW. Section 305(b) M49). which contains REVISIONS TO C.FR 923 L Authority - requirements for management program This final rule is issued under the approval. was moved to new Section June 30, 1994 306(d)(2). The remaining provisions of Effective authority of the MIA. as amended, 16 old Section 305, including the U.S.C. 1451 et seq. authorization for preliminary approval _EL Background granm were deleted and replaced with an authorization for annual program The CZMA wis enacted to encourage developments grants for Fiscal Years and -s-st coastal states and territories im, 1992 and a993 not to exceed to develop and implement management $200,000 per year per state at a ratio of programs to preserve, protect, develop - 4-to-2 Federal-to-state match. Program DEPARTMENT OF COMMERCE and, where possible. restore or enhance development grants are also an the resources of the NatioWs coasts. authorized use of the new Sectio n 308 National Oceanic and Atmospheric Prior to the 2990 Amendments, the Coastal Zone Management Fund. Administration (NOAA) CZMA included statements of Revisions to Administrative Grants. Congressional findings and policies for Section 306 on Administrative Grants 15 CFR. Parts 023,926,927 the CZM Program. identified nine also was completely revised. Section national coastal management objectives 306(a) was amended to change the (Docket No. 940109-4M) - and specified that all state C2U match vi ns for administrative Programs were to make "significant grants P toMpsloment approved state RIN 0646-AEI I improvements" in aclilaybig these CZM Programs. The "significant objectives, defined key terms, improvement" provisions of old Section Coastal Zone Management Program authorized grants for program 306(a)(3) were deleted. The minimum ReguWdons development and implementation and grants provisions of old Section 306(b) specified allocation sirid match. were deleted and a new provision was AGENCY: Office of Ocean and Coastal requirements, and specified program added which allows the Secretary. after Resource Management (OCRM), approval requirements. The program consultation with the coastal states, to National Ocean Service (NOS). National approval requirements were set forth in establish maximum and minimum Oceanic and Atmospheric Section 305. Management Program grants for any fiscal year to promote -Administration (NOAA), Commerce. Development Grants (itt Section 305(b) equity and efficient coastal AcTION: Final rulet W49)) and Section 306, Administrative management. The program approval Grants (at Section 306 (04h)). NOAA's requirements of old Section 305(b) M- summARY: 7lie Coastal Zone Act - 'iegulations at 15 CFR parts 923, 926 and (9) and Section 306 (c)-4h) were revised Reauthorization Amendments of 1990. 927 implemented these provisions. and consolidated in new Section 306(d). enacted November S. 1990.*amended the M. Coastal Zone Act Reauthorization New program approval requirements Coastal Zone Management Act (CZMA) Amendments of 19% were added at Section 306(d) (14). (15) and reauthorized NOAA's Coastal Zone and (16). Section 306(d) (14) and (15) The Coastal Zone Act Reauthorization must be met within three vears of Management (CZM) Program under that Act. Among the amendments were Amendments of 1990 (Amendments) enactment (or by November 2993) and revisions to findings. policies and (Pub. L No. 101-508, 104 Stat. 1388 Section 306(d)(161 must be met within defwitions in the CZMA. repeal of (1990)) were enacted an November 5. 30 months of EPA's issuance of final provisions on preliminary program 1990. The Amendments made a number guidance on management measures for approval &-ants. program segmentation, . Of changes to the CZMA. controlling coastal nonpoint pollution and significant improvements-, and * New and revised Congressional (or at the same time the Coastal reorganization and consolidation of findings. Section 6202 of the Nonpoint Pollution Control Programs approval requirements for state Amendments set forth nine new under Section 6217 of the Amendments Congressional findings. In addition, the are due). Old Section 306(0) on program programs. The purpose of this final rule 0 is to conform NOAA's regulations Amendments revise the existing changes was revised and renumbered as implementing the CZM program to the findings at Section 302 (d) and (f) and Section 306(e). Old Section 306(b) statutory changes. add three new findings at Section 302 authorizing program segmentation was W. (1) and.(m). deleted. EFFE=VE DATE: This rule is effective on e New and revised Congressional - * Revisions to Resource Management June 30, 1994. declarations of policy. The Improvement Grants. Section 306A(b)(1) ADMESsvs: Additional information may Amendments ri'vise the statements of was revised to authorize use of Secttion be obtained from the National Oceanic PoUcy at Sections 303(2), 303(2)(B) and 306A furids for restoring and enhancing 303(3). and add new statements of shellfish production. and Atmospheric Administration. licy at Section 303(2) (C) and (K) and National Ocean Service, Office of Ocean PO IV. Purpose of Today's Rule and Coastal Resource Management at Section 303 (5) and (6). 1305 East-West Highway, 11th Floor. * New and revised definitions. The Some of NOAA's current CZM Silver Spring. Maryland 20910. Amendments revise the definitions of Program regulations need to be revised .1 coastal zone" at Section 304(1) and to conform to the changes to the CZMA FOR RJRTHER INFORMATION CONTACT: water use" at Section 304(18), and add made bv the Amendments. The purpose Vickie A. Allin, Chief, Policy a definition of "enforceable policy" at of this rule is to amend these regulations Coordination Division, Office of Ocean Section 304(6a). to make them consistent with the CZMA and Coastal Resource Management. o Revisions to Management Program as amended. By modifying the current 0 1305 East-West Highway, lith Floor. Development Grants. Section 305 on NOAA regulations to reflect the new Silver Spring. Maryland 20910. Management Program Development statutory requirements, this notice Telpphone- 301-713-3086. Grants was completely revised. Old serves to clarify the effect of the 126 Federal Register /.Vol. 59. No. 103 1 Tuesday, May 11. 1994 4 Rules. and Regulations 27975 Amendments on coastal states; Federal coastal waters" to read "direct and List of Subjects agencies and other affected groups. significant impacts on coastal waters or 15 CFH Part 923 Codification of the Regulations areas which are likely to be affected by 4F or vulnerable to sea level rise.- Coastal zone. Grant programs- The following is a brief description of Other changes include adding the Natural resources, Reporting and changes made to the regulations. word "historical" at §§ 923.22 (a) and recordkeeping requirements. A. National Coastal Zone Management (b) to read "preserving or restoring areas 15 CFR Part 927 Progmm for their conservation, recreationaL Allocation formula. Part 923--Coastal Zone Maaagemi@nt ecological, historical or esthetic values. Program Development and Approval revising the chart at § 923.71 which Dated:* May 10, 199C. Provisions. summarizes the findings necessary for W. Stanley Wilson, By riorganizing and consolidating CZM Program approval. revising the AnistantAdaunhifttorfor ocean Services C2M Program approval requirements statutory reference to and -citation of and Coastal Zone Manageniez:L previously found throughout Sections Section 312 at § 923.60, and changing For the reasons set out the Preamble, 305 and 306 of the CZMA into one the costs of equipment purchases 15 CFR chapter IX is amended as section-Section 306(d)-the requiring prior N9AA approval from follows: Amendments have changed almost all of $1,000 to $5,000 at S 923.93(f) pursuant the statutory references found to OMB Circular A-in. PART 923-COASTAL ZONE throughout 15 CFR part 923. This rule Part 926--Constal Zone Management. MANAGEMENTPROGRAM replaces the old statutory references Program Development Gmnts DEVELOPMENT AND APPROVAL with the now references throughout 15 Allocation of Funds to States. REGULATIONS CFR part 923 and revises the referenced Th .a part is removed. The 1. The authority citation for Part 923 statutory citations wherever d. Amerdments revised old Section 305 to is revised to read as follows:' The Amendments deleted = authorize annual program development Axithority: 16.U.S.C. 1451 et seq. previously authorized program grants to states for Fiscal Years 1991. development and approval provisions. 1992. and 1993, not to exceed $200.000 Subpart A-General including authority for preliminary per year per state at a 4-to-1 Federal-to- approval grants, authority for program state match. In addition, program @- Section 923.1 is amended by segmentation, and the requirement that development grants are made an revising the first sentence of paragraph states devote an increasing proportion of allowable use of the new CZM Fund (b). and by adding paragraphs (c)(7). (8) Federal financial as istance for program (new Section 308). and (9) to read as follows: implementation, up to 30%. toward "aking "significant improvement" in Part 927-Allocation of Section 306 J 923.1 Purpo3& W_ hieving nine national coastal Prograni Administration Grants. & management objectives. This rule This part is revised to incorporate (b) Sections 306 and 307 of the Act set removes the portions of NOAA's new statutory references and citations forth requirements which must be regulations implementing these and new provisions for establishing fulfilled as a condition of program provisions and renumbers the annually the maximum and minimum approval. regulations as necessary. share. The regulation an calculation of (c) * * This rulerevises the references to financial assistance award levels is (7) Provides for public participation Congressional findings and declarations revised to reflect the amendments to in permitting processes, consistency of policy to reflect the Amendments. Section 312. determinations, and, other similar This includes revising the phrase "as V1. Classification decisions. well as the needs flat economic (8) Provides a mechanism to ensure development" to -as well as the needs A. EKecutive Order 12866 that all state agencies will adhere to the for compatible economic development" program- and adding the new Congressional This rule has been determined to be (9) Not later than 30 months after the findings an water quality. sea level rise. not significant for purposes of Executive date of publication of final guidance and ocean resources planning. Order 12866. under section 6217(g) of the Act, A definition of "enlorceabFe policy" is B. Administrative Procedure Act contains enforceable policies and added and the definitions of the terms mechanisms to implement the 11 coastal zone" and "water use" are - The changes to the regulations made applicable requirements of the Coastal revised to reflect the Amendments. this by this rule are required by the 1990 Nonpoint Pollution Control Program of includes revising all references to "the statute and. thus, are non-discretionary. the state required by section 6217 of the Outer limit of the territorial sea" to read Except for some minor editorial Coastal Zone Act Reauthorization "the outer limit of State title and changes, the only revisions to the Amendments of 1990. ownership under the Submerged Lands regulations are the incorporation of the * ' - Act (43 U.S.C. 1301 et seq.), the Act of new statutory language into them. Since 3. Section 923.2 is amended by March 2. 1917 (48 U.S.C. 749). the no useful purpose would be served'by revising paragraphs (d)(2) and (h) to Covenant to Establish a Commonwealth giving notice and opportunity for read as follows: of the Northern Mariana Islands in comment. the Assistant Administrator Political Union with the United States for Ocean Services and Coastal Zone 923.2 Definitions. of America. as approved by the Act of Management. NOAA. for good cause. -h 24. 1976 (48 U.S.C. 1681 note) or found under section 553(b)(3)(B) of the (d) rc Jeact.ion I of the Act of November 20, Administrative Procedure Act (5 U.S.C. (2) The following are defined as G 62 (48 U.S.C 1705), as applicable." It 553(b)(3)(B)) that notice and relevant Federal agencies: also includes revising all references to opportunity for public comment d i Department of Agricultuie; re'ct and significant impacts on procedure thereon is unnecessary. Department of Commerce; 127 27070 Federal Register / Vol. 59. No. 103 / Tuesday, May 31, 1994 / Rules and Regulations Department of Defense: resources and wildlife therein, are the protection,management,and Department of Education: ecologically fragile and consequently development of the resources of the Department of Energy: extremely vulnerable to destruction by exclusive economic zone that can only Department of Health an Human Services: man's alterations. be served by the active participation o Department of Housing and Urban (v) Important ecological,cultural, coastal states in all Federal programs Development: historic,and esthetic values in the affecting such resources and, wherever Department of the Interior: coastal zone which are essential to the appropriate,by the development of st Department of Transportation: well-being of all citizens are being oceans resource plans as part of their Environmental Protection Agency: irretrievably damaged or lost. federally approved coastal zone Federal Energy Regulatory Commission: (vi) New and expanding demands for management programs. General Services Administration: food,energy,minerals,defense needs, (3) As stated in section 303 of the Ac Nuclear Regulatory Commission: recreation, waste disposal. the Congress finds and declares that it . . . . . . transporation, and industrial activities is the national policy-- (h) The following terms, as used in in the Great Lakes, territorial sea, (i)to preserve,protect,develop,and these regulations, have the same exclusive economic zone and Outer where possible,to restore or enhance definition as provided in section 304 of Continental Shelf are placing stress on the resources of the Nation's coastal the ACT: these areas and are creating the need for zone for this and succeeding (1) coastal zone resolution of serious conflicts among generations: (2) coastal waters important and competing uses and (ii)to encourage and assist the states (3) enforceable policy values in coastal and ocean waters. to exercise effectively their (4) estuary (vii)Special natural and scenic responsibilities in the coastal zone (5) land use characteristics are being damaged by ill- through the development and (6) water use planned development that threatens implementation of management . . . . . these values. programs to achieve wise use of the lan 4. Section 923.3 is amended by (viii)In light of competing demands and water resources of the coastal zone revising paragraphs (a) and (b)(1)to read and the urgent need to protect and to giving full consideration to ecological, as follows: give high priority to natural systems in cultural,historic,and esthetic values as the coastal zone,present state and local well as the needs for compatible 923.3 General requirements. institutional arrangements for planning economic development (a)(1)As required by subsection and regulating land and water uses in (iii)to encourage the preparation of 306(d)(1)of the Act,before approving a such areas are inadequate. special area management plans which management program submitted by a (ix)The key to more effective provide for increased specificity in coastal state,the Secretary shall find protection and use of the land and water protecting significant natural resources. that the state has developed and resoureces of the coastal zone is to reasonable coastal-dependent economic adopted a management program for its encourage these states to exercise their growth,imporved protection of life and coastal zone which is adequate to carry full authority over the lands and waters property in hazardous area, including out the purposes of the Act and is in the coastal zone by assisting the those areas likely to be affected by land consistent with the policy declared in states,in cooperation with Federal and subsidence,sea level rise,or fluctuating section 303 of the Act. local goernments and other vitally water levels of the Great Lakes, and (2)As stated in section 302 of the Act. affected interest,in developing land improved predictability in the Congress finds that-- and water use programs for the coastal governmental decisionmaking: (i)There is a national interest in the zone,including unified policies. (iv)to encourage the participation and effective management, beneficial use, criteria,standards,methods,and cooperation of the public,state and protection, and development of the processes for dealing with land and local governments,and interstate and coastal zone. water use decisions of more than local other regional agencies,as well as of the (ii)The coastal zone is rich in a significance. Federal agencies having programs variety of natural,commercial, (x)The national ofjective of attaining affecting the coastal zone,in carrying recreational,ecological,industrial,and a greater degree of energy self- out the purposes of this title: esthetic resources of immediate and sufficiency would be advanced by (v)to encourage coordination and potential value to the present and future providing Federal financial assistance to cooporation with and among the well-being of the Nation. meet state and local needs resulting appropriate Federal,state,and local (iii)The increasing and competing from new or expaded energy activity in agencies, and international demands upon the lands and waters of or affecting the coastal zone organizations where appropriate,in our coastal zone occasioned by (xi)Land uses in the coastal zone,and collection,analysis,synthesis,and population growth and economic the uses of adjacent lands which drain dissemination of coastal management development,including requirements into the coastal zone,may significantly information,research results and for industry,commerce,residential affect the quality of coastal waters and technical assistance,to support stat e development,recreation,extraction of habitants,and efforts to control coastal and Federal regulation of land use mineral resources and fossil fuels, water pollution from land use activities practices affecting the coastal and ocean transportation and navigation,waste must be improved. resources of the United States:and disposal,and harvesting of fish, (xii)Because global warming may (vi)to respond to changing shellfish,and other living marine result in a substantial sea level rise with circumstances affecting the coastal resources,have resulted in the loss of serious adverse effects in the coastal environment and coastal resource living marine resources,wildlife, zone,coastal states must anticipate and management by encouraging states to nutrient-rich areas,permanent and plan for such an occurrence. consider such issues as ocean uses adverse changes to ecological systems, (xiii)Because of their proximity to potentially affecting th coastal zone. decreasing open space for public use, and reliance upon the ocean and its (b)* * * and shoreline erosion. resources,the coastal states have (1)The management program must iv. The habitat areas of the coastal substantial and significant interests in provide for the management of those zone,and the fish,other living marine 128 Federal Register Val. 59. No. 103 Tuesday.. May 31. 1994 Rules and Regulations 27977 ,MLand and water uses having a di;ect and-. , 7. Section 923.12 is amended by Protection Planning; 306(d)(2)(I@- =gnificant impact on coastal waters and revising paragraphs (a) and (b) ' Shoreline Erosion/Mitigation Planning: NWose geographic areas which are likely introductory text to read as follows: and 306(d)(g)-Areas for Preservation to be affected by or vulnerable to sea and Restoration. J 923.12 - Uses of regional benefiL. level rise. The program must take steps to assure the appropriate protection of (a)JU required by subsection 10. Section 923-21 is amended b .y th *caat resources and areas. 306(d)(12). before approving a ose signifi revising paragraphs (a) and (b)(1)(i)(G) such as'wetlands. beaches and dunes, management program submitted by a to read as follows: and barrier islands, that make the state's coastal state, the Secritary shall find coastal zone a unique. vulnerable. or that the management program contains §923.21 Areas of particular concern. valuable area, a method of assuring that local land use (a)(1) As required by subsection and water use reg@ulations within the 306(d)(2)(C).. before approving a coastal zone do not unreasonably management program submitted by a Subpart B-Uses Subject to the restrict or exclude land uses and water coastal state. me Secretary shall rind Management Program uses of regional benefit. that the management program includes (b) In order to meet the requirements an inventory and designation of areas of 5. Section 923.10 is revised to read as of subsection 306(d)(12) of Me Act. particular concern within the coastal follows: states must: zone. S 923.10 Genval. (2) As required by subsection This subpart deals with land and 8.. Section 923.13 Is amended by- . 306(d)(2)(E). before approving a water uses which, because of their revising paragraph (a), the ftrst sentence management program submitted by a direct and significant impacts on coa*stal of paragraph (b) introductory text-and coastal state. the Secretary shall find waters or those geographic areas likely (b)(3)(h) to read as follows: that the management program includes to be affected by or vulnerable to sea J 923.13 Energy fiRcility planning process. broad guidelines on priorities of uses in particular areas. including specifically level rise. are subject to the terms of the (a) As required by subsection those uses of lowest priority. management program. Determination of 306(d)(2)(H). before approving a (b) these uses will assist in determining the management program submitted by a (1) appropriate coastal management coastal state, the Secretary shall find M boundary (see Subpart D). This subpart that the management program includes (C) Areas where, if development were deals in full with the requirements of a planning process for energy facilities permirted-it might be subject to subsection 306(d)(1)(B). Uses subject to likely to be iocated in or which may significant hazard due to storms. slides, joe management program. 306(d)(2)(H), significantly affect. the coastal zoi)e. floods, erosion. settlement. salt water 0eragy Facility Planning. and including a process for anuicipat, ' the intrusion. and sea level rise: 6(d)(12)(B). Uses of Regional Benefit. management of the impacts resul ng 6. Section 923.11 is amended by from such facilities. 11. Section 923.22 is amended by revising paragraphs (a). the second fb) Requirements* States must evelop revising paragraph (a) and the second sentence of paragraph (b)(1) and (c)(4)(ii). and bv adding paragraph a planning process which is capable. at sentence of paragraph (b)(1) to read as a minimum, of anticipating the follows: (c)(4)(v) to read as follows: management of the impacts from energy 6923.11 Usessubio et to management. facilities in or affecting the state's §923.22 Areas for preservation or (a) As required by subsection coastal zone.* restoration. (a) As required by subsection 306(d)(2)(B). the management program 306(d)(9), before approving a for each coastal state must include a 3) . . . definition of what shall constitute (ii) States must Ast relevant management program submitted by a permissible land uses and water uses constitutional provitions. laws. coastal state. the Secretary shall find within the coastal zone which have a regulations. judicial -Aecisions and other that the management program includes direct and significant impact on the appropriate official documents or procedures whereby specific areas may coastal waters. actions that are specifically related to be designated for the purpose of 'b) Requirements. (1) These preserving or restoring them for their t planning for, and anticipating the conservation. recreational, ecological. uses shall be those with direct and management of energy facilities or significant impacts on coastal waters or impacts, inc)uding licensing or historical or esthetic values. on geographic areas likely to be affected permitting procedures. (b) Requirements. (1) liv or vulnerable to sea level rise. *'* * Designations may be mace for the purposes of preserving oerestoring (C) Subpart C-Special Management areas for their conservation, recreational (4) Areas ecological. historical. or esthetic values. (ii) Historic. cultural and esthetic 9. Section 923.20 is amended by 12. ;ection 923.24(s) is revised to P!sources where coastal development is revising the last sentence of paragraph read as follows: ik'4 to affect these resources: (a) to read as follows: § 923.24 Shorefront access and protection M InfOrmation on the imoacts of § 923.20 General. planning. b@'I Warming and resultart. sea level (a') * * * This sLbpart deals with the (a) As required by SUbsection on natural resources such as folloxvina subsections of th3 Act: Ter', 3r,6(d)(2)(G) before approving a Ok"'hes, dunes. estuaries, and wetlan 306'kd)(20Q-Geographic areas of managemen program submitted by a ds, 11( un salinization of drinking water Particular Cancern@ 306(d)(2)(E@- coastal state. the Secretary shall find suPPlies. and on properties, Guidelines on Prionities of Uses: that the management program includes infra5tructure and public works. 306(d)(2)(G)-Shoreir,= Acdess and a definition of the terni "beach" and a A 27978 Federal Register / Vol. 59, No. 103 / Tuesday, May 31, 1994 Rules and Regulations planning process for the protection of, wetlands, and beaches. The zone are likely to be affected by or vulnerabl, and access to, public beaches and other extends, in Great Lakes waters, to the to sea level rise. public coastal areas of environmental, international boundary between the recreational, historical, esthetic, United States and Canada and, in other 16. Section 923-32 is amended bv ecological or cultural value. areas seaward to the outer limit of state revising paragraph (a)(1) to read as' title and ownership under the follows: 13. ;ection 92;.25 i: amended by Submerged Lands Act (43 U.S.C. 1301 et revising paragraphs (a) and (c)(1) and (.2) seq.). the Act of March 2, 1917 (48 J 923.32 Seaward boundaries. tn mad as follows: U.S.C. 749). the Covenant to Establish a (a) Requir"ements. (1) For states Commonwealth of the Northern Mariana adjoining the Great Lakes, the seaward J 9=5 Shoreline ero.4iorihnttigation Islands in Political Union with the boundary is the international boundary planning. United States of America, as approved with Canada or the boundaries with (a) As required by Subsection by the Act of March 24, 1976 (48 U.S.C. adjacent states. For all other states 306(d)(2)(1). before approving a 1681 note) or section I of the Act of participating in the program, the management program submitted by a November 20, 1963 (48 U.S.C. 1705, as seaward boundary is the outer limit of coastal state, the Secretary shall find applicable). The zone extends inland state title and ownership under the that the management program includes from the shorelines only to the extent Submerged Lands Act (48 U.S.C. 1301 et a planning process for assessing the necessary to control shorelands, the seq.), the Act of March 2. 1917 (48 effects of, and studying and evaluating uses of which have a direct and U.S.C. 749), the Covenant to Establish a ways to control, or lessen the impact of, significant impact on the coastal waters. Commonwealth of the Northern Mariane shoreline erosion. and to restore areas.. Excluded from the coastal zone are Islands in Political Union with the adversely affected by such erosion. lands the use of which is by law subject United States of America, as approved solely to the discretion of or which is by the Act of March 24,1976 (48 U.SZ (c) ;equir*emer*rts. (1)* The held in trust by the Federal 1681 note) or section 1 of the Act of management program must include a Government, its officers or agents. November 10, 1963, (48 U.S.C. 1705, as method for assessing the effects of . (2) As required by subsection 304(2), applicable). shoreline erosion. including potential the term "coastal waters" means (i) in W 0 impacts of sea level rise, and evaluating the Great Lakes area, the waters within 17. Section 923.33 is amended by te=niques for, mitigating, controlling or the territorial jurisdiction of the United revising paragraph (c)(1) introductory restoring areas adversely affected by States consisting of the Great Lakes, erosion. I their connecting waters, harbors, text to read as follows: (2) There must be an identification roadsteads, and estuary-type areas such J 923.33 Excluded lands. and description of enforceable policies, as bays, shallows and marshes, and legal authorities, funding techniques (H) in other areas. those waters, and other techniques that will be used adjacent to shorelines, which contain a W General comments. W The to manage the effects of erosion. measurable quantity or percentage of sea exclusion of Federal lands does not including potential impacts of sea level water, including but not limited to, remove Federal agencies from the rise, as the state's planning process sounds, ba s, lagoons, bayous, ponds obligation of complying with the y consistency provisions of section 307 of indicates is necessary. and estuaries. the Act when Federal actions on these Subpart D-Boundaries 15. Section 923.31 is amended by excluded lands have spillover impacts revising paragraphs (a)(1) and (b)(2) and that affect any land or water use or 14. Section 923.30 is amended by (2) to read as follows: natural resource of the coastal zone revising paragraphs (a) and (c) to read as J 923.31 Inland boundarle&. within the purview of a state's follows: (a) " * * management program. Therefore, states 923.30 General. (1) Those areas the management of should consider mapping the following (a) This subpart deals in full with which is necessar Iy to control uses types of excluded Federal lands: subsection 306(d)(2)(A) of the Act- which have direct and significant * * Boundaries of the Coastal Zone. impacts on coastal waters, or are likely Subpart E-Authorities and 0 to be affected by or vulnerable to sea organizations W ;s required by subsection level rise, pursuant to section 923.11 of 306(d)(2)(A), before approving a these regulations. 18. Section 923.40 is amended by management program submitted by a revising the second, fifth and sixth coastal state, the Secretary shall find (b) sentences of paragraph (b), and that the management program includes (1) Watersheds-A state may paragraphs (c) and (d) to read as follows: an identification of the boundaries of determine some uses within entire the coastal zone subject to the watersheds which have direct and 9 923.40 General. management program. significant impact on coastal water's or (1) As required by subsection 304(1), are likely to be affected by or vulnerable (b) They may be the state the term "coastal zone" means the to sea level rise. In such cases it may be agency designated pursuant to section coastal waters (including the lands appropriate to define the coastal zone as 306(d)(6) of the Act. other state therein and thereunder), and the including these watersheds. agencies, regional or interstate bodies, adjacent shorelands (including the (2) Areas of tidal influence that and local governments. * * * This waters therein and thereunder), strongly extend further inland than waters under demonstration will be in the context of influenced by each other in proximity to saline influence; particularly in one or a combination of the three the shorelines of the several coastal estuaries, deltas and rivers where uses control techniques specified in section states, and'includes islands, transitional inland could have direct and significant 306(d)(1i) of the Act. The requirements and intertidal areas, salt marshes, impacts on coastal waters or areas that related to section 306(d)(12) are 1 '1 n Vol. 59, No. 103 Tuesday, May 3r, 1994 / Rules and Regulations 27979 Federal Ri described in §§ 923.42 through 923.44 Of condemnation or other means when (2) ,Ljji@s subch necessary to achieve conformance with (i) It will be sufficient if any of apter. . the following can act to ensure W,,In determining the adequacy of the the management program. L rities and organization of a state's (b) * * * compliance: The state agency programs, the Assistant Administrator (1) Identify relevant state designated pursuant to subsection will review and evaluate authorities and constitutional provisions, statutes, 306(d)(6) of the Act. the state's Attorney organizational arrangements in light-of regulations. case law and such other General, another state agency, a local the requirements of this subpart and the legal instruments (including executive government. or a citizen. finding of section 302(h) of the Act. orders and interagency agreements) that which provides: will be used to carry out the state's 22. Section 923.44 is amended by to light of competing demands and the management program. revising paragraph (a) to read as follows: urgent need to protect and to give high 12) This identification will include the priority to natural systems in the coastal authorities pursuant to sections J 923.44 State review on a case-by-case zone. present state and local institutional 306(d)(10) and 306(d)(11) of the Act basis of actions affecting land and water arrangements for planning and regulating which require a state to have the ability us" subject to the management program.- land and water uses in such areas are to: Technique C. inadequate. (a) As required by subsection (d) The authorities requirements of 20. Section 923.42 is amended by 306(d)(11), before approving a the Act dealt with in this subpart are revising paragraphs (a) and (b) management. progmm submitt6d by a those contai coastal state, the Secretary shall rind ned in subsections introductory text to read as follows. 306(d)(2)(M-Mearis of Control. that the management program provides 306(d)(10)"Authorities; 306(d)(10)(A)- S 923-42 State establishment of criteria for any one or a combination of general Control Development and Resolve and standards for local Implemenation- techniques for control of land and water Conflicts; 306.(.d)(10)(M-Powers of Technique A. uses within the coastal zone. The third Acquisition; 306(d)(W-Techniques of (a) As required by subsection such control technique, at subsection control; and 307(f)-Air and Water 306(d)(11). before approving a 306(d)(21)(C), is state administrative Quality Control Requirements. The management program submitted by a review for consistency with the organization requirements of the Act coastal state. the Secretary shall rind management program of all. dealt with in this subpart are those that the management program provides development plans. projects. or land contained in iectibris 306(d)(2)(F)---: for any one or a combination of general and water use regulations, including techniques for control of land uses and exceptions and variances thereto, Organizational Structure, 3w(d)(6)- water uses within the coastal zone. The, proposed by any state or local authority Designated State Agency: and first such control technique, at or private developer, with power to #1d g7@@_@@rganization. 9 a ded b approve or disapprove after public "23.4 i amen y subsection 306(d)(11)(A). is state '. on ' s establishment of criteria and standards sin aragraph a) (b)(1) and (b)(2) notice and an opportunity for hearings. tro ctory xt t as follows. * - . * - d te o read for local implementation, subject to administrative review and enforcement. 23. Section 923.45 is amended by §923.41 Identification of authorities. (b) There are 5 principal requirements revising paragraph (a), by removing (a)(1) As required by subsection associated with use of the control paragraph (b)(2). by redesignating 306(d)(2)(D). before approving a technique at subsection 306(d)(11)(A). paragraph (b)(3) as paragraph (b)(2) and management program submitted by a They are that: revising it to read as follows: coastal state, the Secretary shall find * . * that the management program includes 21. Section 923.43 is amended by 9923.45'Air and water pollution control an identification of the means by which revising paragraph (a), the first sentence requirements. the state proposes to exert control over of paragraph (b) introductory text and (a) As required by subsection 307(f), the land uses and water uses referred to the second sentence of paragraph notwithstanding any other provision of in pamgraph (B). including a listing of (c)(21(i) to read as follows: the title. nothing in the title shall in any relevant state constitutional provisions, way affect an requirement: laws. regulations, and judicial § 023.43 Direct state land and water use (1) EstablisKed by the Federal Water decisions. planning and regulation.-Technique B. Pollution Control Act, as amended, or (2) As required by subsection (a) As required by subsection the Clean Air Act. as amended. or 306(d)(10). before approving a 3o6(d)(n), before approving a . (2) Established by the Federal management program submitted by a Government or byany state or local management program submitted by a coastal state. the Secretary shall find coastal state, the Secretary shall find government pursuant to such Acts. Such that the state, acting through its chosen that the management program provides requirements shall be incorporated in agency or agencies (including local for any one or a combination of general any program developed pursuant to this governments, area-wide agencies. techniques for control of land and water title and shall be the water pollution regional agencies,.or interstate agencies) uses within the coastal zone. The control and air pollution control has authority for the management of the second such control technique. at requirements applicable to such coastal zone. Such authority shall subsection 306(d)(1 1)(B), is direct state program. include power- land and water use planning and (b) General comments. (i) To administer land use and water retlation. (2) Water quality standards are use regulations to control development ) Control technique subsection established by EPA promulgation. or to ensure compliance with the 306(d)(11)(B) of the Act allows for direct approval of state standards, taking into. A"pgement program, and to resolve state control of land and water uses consideration public'water supplies. icts among competing uses, and subject to the management program on protection and propagation of fish, WTTo acquire fee simple and less the basis of direct state authority. shellfish and wildlife, recreation. than fee simple interests in land, w.aters, agriculture, industry and navigation. and other Property through (c) EPA itself develops standards on 13 1 27980 Federal Register / Vol. 59. No. 103 / Tuesday, May 31, 1994 / Rules and Regulations affluent limitations, new source by adding paragraphs(b)(4)and(b)(5)to and of regional agencies in the performance standards,pre-treatment read as follows: development and implementation of standards and toxic pollutant discharge coastal management programs: standards. 923.50 General. (4)The management of coastal * * * * * * * (a)As required by Section 303,the development to improve,safeguard, 24.Section 923.46 is amended by Congress finds and declares that it is the restore coastal water quality:and resivising paragraphs (a),(c)(1)(2) national policy: (5)The study and development of to read as follows: (1)To preserve,protect,develop,and, plans for addressing the adverse effec where possible,to restore or enhance of land subsidence and sea level rise. 923.46 Organizational structure. the resources of the Nation's coastal * * * * * * (a)(1)As required by subsection zone for this and succeeding (d)***This subpart address in 306(d)(2)(F),before approving a generations: requirements of the following management program submittd by a (2)To encourage and assist the states subsections of the Act:306(d)(1) coastal state,the Secretary shall find to exercise effectively their Opportunity for full participation: that the management program includes responsibilities in the coastal zone 306(d)(3)(A)-Plan Coordination: a description of the organizational through the development and 306(d)(3)(B)-Continued State-Local structure propsed to implement such implementation of management Consultation;306(d)(4)-Public management program,including the programs to achieve wise use of the land Hearings:305(d)(8)-Consideration of responsibilities and interrelationships of and water resources of the coastal zone, the Natioal Interest in Facilities: local,areawide,state,regional and giving full consideration to ecological, 307(b)-Federal Consultation:and interstate agencies i the management cultural,historic,and esthetic values as 307(h)-Mediation. process. well as to needs for compatible 27.Section 923.51 is amended by (2)As required by subsection economic development: revising paragraph (a).the first sentence 306(d)(7),before approving (3)To encourage the preparation of of paragraph (b).Paragraph (d) management program submitted by special area management plans which introductory text and (d)(5)(vii)to read a coastal state, the secretary shall find protecting significant natural resources. that the state is organized to implement reasonable coastal-dependent economic 923.51 Federal-state consultation the management program. growth,improved protection of life and (a)(1)As required by subsection * * * * * property in hazardous areas,including 306(d)(1),before approving a (c)Requirements. (1)States must those areas likely to be affected by land management program submitted by a describe the organizational structure subsidence,sea level rise,or fluctuating coastal state, the Secretary shall find that will be used to implement and water levels of the Great Lakes, and that the state has developed and administer the management program improved predictability in adopted a management program for its including a discussion of those state and governmental decisionmaking: coastal zone with the opportunity of full other agencies,including local (4)To encourage the participation and participation by relevant Federal governments,that will have cooperation of the public,state and agencies. responsiblity for administering, local governments,and interstate and (2)As required by section 307(b),the enforcing and/or monitoring those other regional agencies,as well as of the Secretary shall not approve the authorities or techniques required Federal agencies having programs management program submitted by a pursuant to the following subsections of affecting the coastal zone,in carrying state pursuant to section 305 unless the the Act:306(d)(3)(B):306(d)(10): out the purposes of this Act: views of Federal agencies principally 306(d)(10)(A)and(B):306(d)(:1)and (5)To encourage coordination and affected by such program have been (12):and 307(f). cooperation with and among the adequately considered. (2)States must describe the appropriate Federal,state,and local (b)The requirements of subsections relationship of these administering agencies,and international 306(d)(1)and 307(b)of the Act and agencies to the state agency designated organizations where appropriate, in those of subsections 307(c)and (d) pursuant to subsection 306(d)(6) of the collection,analysis,synthesis,and establish reciprocal State-Federal Act. dissemination of coastal management relationship.* * * * 25. Section 923.47(a)is amended by information,research results,and * * * * * revising paragraph(a)to read as follows technical assistance,to support state (d)Requirements. In order to address and Federal regulation of land use that portion of subsection 306(d)(1)of 923.47 Designated state agency. practices affecting the coastal and ocean the Act that deals with Federal agency (a)As required by subsection resources of the United States: and participation,each state must: 306(d)(6),before approving a (6)To respond to changing * * * * management program submitted by a circumstances affecting the coastal ( 5)* * * coastal state,the Secretary shall find environment and coastal resource (vii)Federally developed or assisted that the Governor of the state has management by encouraging states to plans that must be coordinated with the designated a single state agency to consider such issues as ocean uses management program pursuant to receive and administer the grants for potentially affecting the coastal zone. subsection 306(d)(3)of the Act. implementing the management program. (b)* * * * * * * * * * * * * * * * (2)The achievement of wise use of 28.Section 923.52 is amended by SUBPART F--COORDINATION, coastal land and water resources with revising paragraphs (a)and(b)(3)to read PUBLIC INVOLVEMENT AND full consideration for ecological, as follows: NATIONAL INTEREST cultural,historic,and aesthetic values and needs for compatible economic 923.52 Consideration of the national 25.Section 923.50 is amended by development: interest in facilites. revising paragraphs(a),(b)(2),(b)(3)and (3)The involvement of the public, of (a)As required by subsection the third sentence of paragraph (d) and Federal,state and local governments 306(d)(8),the management program 132 Federal Register Vol. 59. No. 103 Tue,;dav Mav 3-1 '1.194 1 Rules and Rpplations 27981 vides for adequate consideration of §923.55 Full participation by state and coastal zone to assure the full 'c - ational interest involved in local govemmqnts, Interested parties and participation of those local governments 1, the general public. and agencies in carrying out the 4&n, ing for. and managing the coastal zone. including the siting of facilities (a) As required by subsection purposes of this title: except that the such as energy facilities which are of 306(d)(1), before approving a Secretary shall not find any mechanism greater than local significance. In the management program submitted by a to be effective for purposes of this case of energy facilities, the Secretary coastal state. the Secretary shall find paragraph unless it requires that: shall find that the state has given that the state has developed and (1) the management agency, before consideration to any applicable national adopted a management program for its implementing any management program or%interstate energy plan or program. coastal zone with the opportunity Of full decision which would conflict with any participation by state agencies, local local zoning ordinance. decision, or 0 (b) governments, regional organizations. other action, shall send a notice of the (3) Indicate how and where the port authorities, and other interested managgment program decision to any consideration of the national interest is public and private parties. local government whose zoning reflected in the substance of the (b) Requirements. In addition to authority is affected; management program. In the case of consultation with Federal agencies, (2) within the 30-day period energy facilities in which there is a subsection 306(d)(1) of the A6 requires commencing on the date of receipt of national interest. the program must that the opportunity for full that notice, the local government may indicate the consideration given any participation in program development submit to the management agency national or interstate energy plans or be provided state agencies. local written comments on the management programs which are applicable to or governments. regional commissions and program decision. and any affect a state's coastal zone. organizations. and other interested recommendation for alternatives-, and public and private parties. (3) such management agency, if any comments are submitted to it, within @9. Section 92;.53 is' amended by 32. *Sectio*n 923.56 is amended by the 30-day period, by any local revising par-agraph (a)(1) to read as revising paragraphs (a) and (b)(1) to read government: follows: as follows: U) shall consider the comments: 923.53 Feder.al consistency procedures. § 923.56 Plan coordination. (ii) may, in its discretion. hold a public hearing on the comments; and (a) (a) As required by subsection (iii) may not take any action within 306(d)(3)(A). before approving a the 30-day period to implement the (i) An ndication of whether the state o management program submitted by a management program decision. WY designated pursuant to coastal state. the Secretary shall rind Ict I ion 306(d)(6) of the Act or a that the state has coordinated its (b) Requirements. (1) Establish a ,le other agency will handle program with local. areawide. and mechanism or mechanisms which will consistency review (see 15 CFR 9j0-18)-. provide for continuing consultation and interstate plans applicable to areas coordination after program approval within the coastal zone- between local governments, regional. (1) existing on January 1 ofthe year areawide. multi-state and other state '0.'Section 923.54 is amended by in which the state's management revising paragraph (d) to read as program is submitted to the Secretary: agencies with activities in the coastal follolvs: zone and the state agency designated and purs .uant to subsection 306(d)(6) of the 923.54 Mediation. (2) which have been developed by a Act. - local government, an areawide agency, a (2) regional agency, or an interstate agency. id) If a serious disagreement persis*ts. c o 0) "Management agency" refers to the (b) * * * the Secretary or other head of a relevant (1) Identify local governments, state agency designated to the Governor Federal aoency, or the Govemor or the areawide agencies and regional or pursuant to subsection 306(d)(6) of the head of thoe state agency designated by interstate agencies which have plans Act and to any other state agency o the Governor as administratively affecting the coastal zone in effect on responsible for implementing a managemen responsible for program development (if January I of the year in which the t program decision; a state still is receiving section 305 management program is submitted-, Prn"Warn development. grants) or for (iv) "Local government" refers to progam implementatAon (if a state is 33. Section 923-57 is amended by these defined in section 304(11) of the ri-teiving section 306 program revising paragraphs ',a), (b)(1). (b)(2)(i) Act which have some form of zoning iTrPlementation grants) may notify the and (b)(2)(iv) to read as follows: authoritv. ,%,Titing of the existence of SOcret a ry in, a serious disagreement, and may request 51323.57 Continuing consultation. 34. Section 923.58 is amended by that the Secretary seek to mediate the '(a) As required by subsection revising paragraph (a) to read as follows- serious disagreement. A copy of the 306(d)(3)(B). before approving a writlen request must be sent to the management program submitted by a § 923.58 Public hearings. agency with which the requesting coastal state, the Secretary shall find (a) As required by subsections 3@E-rr that the state has established an 306(d)(1) and 306(d)(4), before y disagrees and to the Assistant o Administrator. effective mechanism for continuing approving a management program consultation and coordination between submitted by a coastal state, the the management agency designated Secretary shall find that the state has 0SIL-ctio'n 923*.55 is amended by pursuant to paragraph (6) of section developed and adopted a management Paragraph (a) and the tirst ;jut)(d) and with local goverriments. program for its coastal zone after notice. %enterce of paragraph (b) to read as interstate agencies, regiundl dgencies, and with the opportunity of full and areawide acencies within the participation by relevant Federal 133 27982 Federal Register / Vol. 59, No. 103 / Tuesday, May 31, 1994 / Rules and Regulations agencies, state agencies, local (3) A succinct description of the program to the Assistant Administrator. governments, regional organizations, environment to be affected by program Because the review process involves port authorities, and other interested implementation; preparation and dissemination of draft parties and individuals, public and (4) A description and discussion of and final environmental impact private, which is adequate to carry out the major alternatives which were statements and lengthy Federal agency the purposes of the Act and is consistent considered by the state in developing review; states should at least anticipate with the policy declared in section 303; the coastal management program; that it normally will take 7 months and shall find that the state has held (5) A discussion of the environmental between the time a state first submits a public hearings in the development of impacts of implementing the program; draft management program to OCRM for the management program. (6) A listing of agencies or persons threshold review and the point at which * * * * * * consulted in determining the impacts of the Assistant Administrator makes a 35.Subpart G is revised to read as the management program. final decision on whether to approve the follows: (b)General comments,OCRM will management program. Certain factors independently evaluate the state's will contribute to lengthening or Subpart G-Environmental Review environmental assessment and use as shortening this time table; these factors much as possible in developing an EIS are discussed in the sections that follow. 923.60 Environmental assessment. on the management program. An EIS This subpart also provides guidance on (a) Requirement All state will be produced for all state programs a recommended format for the program management program submissions must submitted for 306 approval. The timing document submitted to the Assistant contain an environmental assessment at and review procedure for the EIS are Administrator for review and approval. the time of submission of the discussed in 923.72. 37. Section 923.72 is amended by management program to OCRM for 36. Section 923.70 is revised to read revising Table 2 in paragraph (b) and threshold review. In accordance with as follows: paragraph (c)(4)(i)through(vi),and the Council on Environmental Quality removing paragraph (d)to read as regulations, 40 CFR 1506.5 (a) and (b). Subpart H--Review Approval follows: state environmental assessments shall Procedures contain the following information: 923.71 Recommended format for (1) A summary of the state's 923.70 General program submission. management program; The purpose of this subpart is to * * * * * (2) A brief discussion of the need for describe the process of state program the state's participation in the Federal review and approval following (b)* * * program: submission of a state's management TABLE 2. CHART-FINDINGS NECESSARY FOR SECTION 306 APPROVAL Associated Section of the act sectqion(s) of these regulations Section 306(d) which includes: 306(d)(2)(A): Boundaries 923.31-923.34 306(d)(2)(B): Uses subject to management 923.11 306(d)(2)(C): Areas of particular concern 923.21-923.23 306(d)(2)(D): Means of control . . ... . .. . . . . ... . .......... 923.41 306(d)(2)(E): Guidelines on priorities of uses . . . . ......... 923.21 306(d)(2)(F): Organizational structure 923.46 306(d)(2)(G): Shorefront planning process 923.24 306(d)(2)(H): Energy facility planning process 923.13 306(d)(2)(1): Erosion planning process 923.25 306(d)(1): Notice: full participation; consistent with sec. 303 923.3,923.51, 923.55, & 923.58 306(d)(3)(A): Plan coordination 923.56 - 306(d)(3)(B): Continuing consultation mechanisms . . ............. . .923.57 306(d)(4): Public hearings . . . ... . .. . .. . ........... . .... 923.58 306(d)(5): Gubernatorial review and approval ............ .......... ...... 923.48 305(d)(6): Designation of recipient agency ....... 923.47 306(d)(7): Organization - - ------- . . . . ........... . . ... . .. . . 923.46 306(d)(10): Authorities . . . .......................... .. . ......... . 923.41 306(d)(8): Adequate consideration of national interest .................................................. . ........ ... . 923.52 306(d)(9): Areas for preservation/restoration ................. ------ 923.22 306(d)(10)(A): Administer regulations, control development; resolve conflicts 923.41 306(d)(10)(B): Powers of acquisition, if necessary . . . . . . ......... . . ........ . ........... . . . . .923.41 306(d)(11): Technique of control .. . . . .... . . ........... . .. . ...... . . . ........... . . ... . . .... . . ....... . ..... 923.42-923.44 306(d)(12); Uses of regional benefit . ....... . .... 923.12 Section 307 which includes: 307(b): Adequate consideration of Federal agency views . . . . .... . .............................. . .... 923.51 307(f): Incorporation of air and water quality requirements ....... . ............... . ....... . . . .. . . ................................. 923.45 (i) Boundaries. The requirements of addressed. States may want to indicate (c) subsection 306(d)(2)(A) of the Act and here, or as part of the EIA, major (4) Subpart D of these regulations should be boundary alternatives considered. 134 Federal Register / Vol. 59, No. 103 / Tuesday, May 11,'1994 / Rules and Regulations 27983 Ceneral maps of the management - considerations; what procedures the Secretary received the proposed boundaries and of excluded Federal state will use to implement the Federal amendment The Secretary may extend lands, if provided. an recommended for consistency provisions of the Act. and this period only as necessary to meet the inclusion in this section (or if more. what mechanisms will be used to insure requirements of the National easily handled as a separate appendix. continued governmental consultation Environmental Policy Act of 1969 (42 their location in the appendix should be and public participation after prograln U.S.C 4321 at seq.). If the Secretary indicated in this section). approval. Detailed documentation does not notify thelcoastal state that the (1i) Uses subject to management. The regarding a num of the requirements Secretary approves or disapproves the requirements of subsections addressed in this section can be amendment within that period. then the 306(d)(2)(B). 306(d)(2)(H). and reserved for appendices. amendment shall be conclusively 306(d)(12) of the Act and related (vi) Msceflaneous. Normally. states . presumed as approved. sections 923.11 through 923.23 of these will address the requirements of (3)(i) Except as provided in paragraph regulations should be addressed. subsection 306(d)(5) and related section (3)(1i). a coastal state may not Jill) Special management areas. The 923.48 in the gubernatorial transmittal implement any amendment, requirements of subsections that will accompany the program modification. or other change as part of 306(d)(2)(C). 306(d)(2)(E). 306(d)(2(G), submission. its approved management program . 306(d)(2)(1). and k6(cl)(9) and the . 38. Section 923.73 is revised-to read unless the amendment, modification, or associated requirements of Sub@art C of as follows: other change is approved by the these regulations should be addressed. Secretary under this paragraph. states are encouraged to include § 923.73 Miscellaneous. Jil) The Secretary. after determining generalized maps located designated The timellnes laid out in S 923.72 may on a preliminary basis. that an Amu of Particular Concern. be shortened if reduction of the time amendment. modification or other (iv) Authorities and organization. The allotted to review environmental impact change which has been submitted for' requirements of subsections statements is proposed consistent with approval under subsection 306(e) is 306(d)(2)(D). 306(d)(2)(F). 306(d)(6). applicable procedures and guidelines of likely to meet the program approval' 306(d)(10). 306(d)(11). and 307(f) of the CEQ and their concurrence is requested. standards, may permit the state to Act and the associated requirements of Reductions in review time normally are expend funds awarded under subsection Subpart E of these regulations should be limited to emergency circumstances or 306(e) to begin implementing the addressed. This should include a conditions which would result in proposed amendment. modification. or discussion of the administrative and impaired program effectiveness. change. This preliminary approval shall legal bases that will be used to not extend for more than 6 months and implement and insure enforcement of JS 923.74, 2=75, 9=76 lRemoved) may not be itnewed. A proposed ' ' and compliance with the policies of the 39. Sections 923.74, 923.75 and amendment. modification, or change management program. This section 923.76 are removed. which has been given preliminary should include, as applicable, 40. Section 923-80 is amended by approval and is not finally approved discussion of six types of legal redesignating paragraph (c) as pangraph under this paragraph shall not be authorities: state legislation. state (d). revising paragraph (b), and adding considered an enforceable policy for agency regulations, gubernatorial a new paragraph. (c) to read as follows: u oses of subsection 307 of the Act. executive orders, interagency P (Jc As required by subsection 312(d). agreements, significant judicial Subpart I-Amendments to and the Secretary shall withdraw approval decisions and significant constitutional Termination of Approved Management of the management program of any provisions. With respect to the Programs coastal state and shall withdraw organization structure that will be used S 923.80 General. financial assistance available to that to implement the management program. state under this title as well as any this section should include a discussion unexpencled portion of such assistance, of the toles and responsibilities during (b) As required by subsection 306(e), if the Secretary determines that the the program implementation of the state any coastal state may amend or modify coastal state has failed to take the agency designated pursuant to a management program which it has subsection 306(d)(6) of the Act and of submitted and which has been approved actions referred to in subsection 312(c)(2)(A). other state, local or regional agencies by the Secretary under this subsection. that will be involved in carrying out the subject to the following conditions: 41. Section 923.81 is amended by management program. The relationship (1) The state shall promptly notify the revising paragraphs (a) and (b)(3)(i) to of the designated state agency to these Secretary of any proposed amendment, igencies also should be described. modification, or other program change other, mad as follows: M Consultation, participation and and submit it for the Secretary's §923.81 Requests for amendments. nntional interests. The requirements of approval. The Secretary may suspend (a) Requirement. Requests for ulbsections 306 (d)(i) through (d)(4), all or part of any grant made under this amendments shaU be submitted to the 306(d)(8) and 307(b) of the Act and the subsection pending state submission of Assistant Administrator by the Governor relaled requirements of Subpart F of the proposed amendment. modification of a coastal state with an approved these regulations should be addressed. or other program change. management progriun or by the head of Included herein should be a summary of - (2) Within 30 days after the date the the state agency (designated pursuant to consultation efforts with rele;vant Secretary receives any proposed subsection 306(d)(6)) if the Governor Federal and state agencies, local amendment, the-Secretary shall notify had delegated this responsibility and governments. regional, areawide and/or the state whether the Secretary approves such delegation is part of the approved in'surstate entities- A summary of public or disapproves the amendment, or management program. Onformation and participation during whether the Secretary finds it is M - - * P"14ram development should be necessary to extend the review of the (3) * * * included. Also included herein should proposed amendment for a period not to M At least one public hearing must be be discussions of national interest exceed 120 days after the date the held on the proposed amendment. 135 27984 Federal Register / Vol. 59 No. 103/ Tuesday, May-31,1994/ Rules and Regulations pursuent to subsection 306(d)(4) of the Act have been met, the Assistant 923.92 Allocation Act. Administrator will then determine, (a) Subsections 303(4),306(d)(3)(B) pursuant-to the National Environmental and 306(d)(10) foster intergovernmental 42. Section 923.82 is amended by Policy Act of 1969, as amended, cooperation in that a state, in revising paragraphs (a)(1)(i)(A). whether an environmental impact accordance with its coastal zone (a)(1)(v)(D). (a)(2), (b) and (c) to read as statement (EIS) is required. * * * management program, may allocate its follows. 43. Section 923.83 is amended by coastal zone management revising the first sentence of paragraph responsibilities to several agencies, 923.82 Amendment reviews/approval (b) to read as follows: including local governments, areawide procedures. agencies, regional agencies and (a) * * * 923.83 Mediation of amendments. (1) * * * interstate agencies. Such allocations (i) * * * provide for continuing consultation and (A) Areas the management of which is (b) Mediation may be requested by a more effective participation and necessary to control uses with direct Governor or head of a state agency cooperation among state and local and significant impacts an coastal designated pursuant to subsection governments, interstate, regional and 306(d)(6) or by the head of a relevant areawide agencies. waters or areas likely to be affected by Federal agency. or vulnerable to sea level rise; * * * 44. Section 923.90 is amended by q 923.93,923.98[Removed] (v) * * * revising paragraphs (e) and (f) to read as 47. In Subpart J, sections 923.93 and (D) In the case of energy facilities, follows: 923.98 are removed and sections 923.94, consideration of any applicable 923.95, 923.96, 923.97 923.99 and interstate energy plan or program (see Subpart J-Applications for Program 923.100 are redesignated as sections 923.52(c)(3)). Development or Implementation 923.93. 923.94, 923.95, 923.96, 923.97 (2) The procedural requirements of Grants and 923.98, respectively. section 306(d) of the Act have been met. 48. Section 923.93 is amended by These procedural requirements are that: 923.90 General. revising paragraph (c)(2)(i) and the first (i)The state has developed the sentence of paragraphs (d) and (f) to amendment with the opportunity for (e) For purposes of this subpart. the read as follows: full participation by relevant Federal term "development grant" means a agencies, state agencies, local grant awarded pursuant to subsection 923.93 Eligible implementation costs. governments, regional organizations, 305(a) of the Act."Administrative port authorities, and other interested grant" and "implementation grant" are (C)* * * public and private parties(subsection used interchangeably and mean grants (2)* * * 306(d)(1)); awarded pursuant to subsection 306(a) (i) Prevent or mitigate loss of life and (ii) The state has coordinated the of the Act. property in such coastal hazard areas as amendment with local, area-wide and interstate plans applicable to areas (f) All application and preapplication floodplains, erosion-prone areas, areas within the coastal zone affected by the forms are to be requested from and subject to subsidence, saltwater amendment and existing an Januaryl of submitted to: National Oceanic and intrusion, or sea level rise; the year in which the amendment Atmospheric Administration, Office of request is submitted (subsection Ocean and Coastal Resource (d) Implementation funding may be 306(d)(3)(A)); Management, 1305 East-West Highway, applied to the management of (iii) Notice has been provided and a l1th Floor, Silver Spring, MD 20910. designated areas of particular concern, public hearing held on the proposed 45. Section 923.91 is amended by especially areas designated for amendment (subsections 306(d)(1), revising paragraphs (a) and (b) to read preservation or restoration purposes 306(d)(3) and 306(d)(4)); and as follows: pursuant to section 306(d)(9) of the Act. (iv) The Governor or the head of the 923.91 State responsibility. (e) * * * state agency, designated pursuant to (a) Applications for program grants (f) Equipment purchases by the subsection 306(d)(6), has reviewed and shall be submitted by the Governor of a grantee of more than five thousand approved the proposed amendment participating state or by the head of the (5,000) dollars per item require NOAA (subsection 306(d)(5)). (b) If the Assistant Administrator, as state entity designated by the Governor approval prior to purchase. a preliminary matter, determines that pursuant to subsection 306(d)(6) of the * * * the management program, if changed, Act. 49. Section 923.95 is amended by would no longer constitute an (b) In the case of a section 305 grant, revising paragraph (a)(4) to read as approvable program, or if any of the the application shall designate a single follows: procedural requirements of section state agency or entity to receive 306(d) of the Act have not been met, the development grants and to be 923.95 Applications for subsequent Assistant Administrator shall advise the responsible for development of the program development grants. state in writing of the reasons why the state's coastal management program. (a) * * * amendment request cannot be The designee need not be,that entity (4) Indicate when the state will designated by the Governor pursuant to submit a management program to the considered. (c) If the Assistant Administrator, as subsection 306(d(6) of the Act as a Assistant Administrator for review and preliminary matter, determines that single agency to receive and administer final approval pursuant to section 306 of the management program, if changed, implementation grants. the Act. would still constitute an approvable program and that the procedural 46. Section 923.92 is amended by 50. Section 923.98 is amended by requirements of section 306(d) of the revising paragraph (a) to read as follows: revising paragraph (a) to read as follows: 136 Federal Register / Vol. 59. No. 103 / Tuesday, May 31 1994 Rules and Regulations 27985 923.98 Grant amendments. PART 927--ALLOCATION OF SECTION with the provisions of Section 312(c) (a) Actions which require an 306 PROGRAM ADMINISTRATION and (d). amendment to a grant award such as a GRANTS * * * * * request for additional Federal funds, (FR Doc. 94-11715 Filed 5-27-94; 8:45 am) changes in the amount of the non- 56. Section 927.1 is amended by BILLING CODE 3510-08 P-M Federal share, changes in the approved revising paragraphs (a),(b) and (f) to project budget as specified in OMB read as follows: Circular A-102, or extension of the grant period must be submitted to the 927.1 Allocation formula. DEPARTMENT OF HEALTH AND HUMAN SERVICES Assistant Administrator and approved (a) As required by subsection 306(a), in writing by him/her and the NOAA the Secretary may make grants to any Social Security Administration Grants Officer prior to initiation of the coastal state for the purpose of contemplated change. Such requests administering that state's management 20 CFR Part 416 should be submitted at least 30 days prior to the proposed effective date of program,if the state matches any such (Regulations No. 16) grant according to e following ratios of the change and, if appropriate, Federal-to-state contributions for the RIN 0960-AD1O accompanied by evidence of compliance applicable fiscal year: with E.O. 12372 requirements. (1) For those states for which Supplemental Security Income for the Aged, Blind, and Disabled; Financial programs were approved prior to 51. In 15 CFR part 923. subpart K is Institution Account Policy in th removed. enactment of the Coastal Zone Act Supplemental Security Income Reauthorization Amendments of 1990. 1 923.1, 923.47, 923.62,923.70,923.71, to 1 for any fiscal year. Program 923.72,923.81, 923.82,923.84,923.93 (2) For programs approved after AGENCY: Social Security Administration. [Amended] enactment of the Coastal Zone Act HHS. 52. In addition to the amendments set Reauthorization Amendments of 1990,4 ACTION: Final rules. forth above, in 15 CFR part 923, remove to 1 for the first fiscal year, 2.3 to 2 for the word "OCZM" and add, in its place, the second fiscal year, 1.5 to 1 for SUMMARY: We are codifying in the word "OCRM" in the following third fiscal year, and 1 to 1 for each regulations, certain procedures which places: fiscal year thereafter. currently appear in our internal a. Section 923.1(d)(5); operating instructions regarding how we b. Section 923.47(b)(3) and (c(1); (3) As required by subsection 306(b), attribute ownership of financial c. Section 923.70; the Secretary may make a grant to a institution accounts for purposes of d. Section 973.71 (a) and (c); coastal state under subsection 306(a) determining eligibility for supplemental e. Section 923.72(a); only if the Secretary finds that the security income (SSI). Existing f. Section 923.81(b)(4)(i); management program of the coastal state regulations do not contain the rules we g. Section 923.82(a) introductory text meets all applicable requirements of this use to determine ownership of financial and (c)(1) introductory text; title and has been approved in institution account funds. h. Section 923.84 (b) (1) introductory accordance with subsection 306(d). EFFECTIVE DATES: These final regulations text. (b)(2)(i), (b)(1)(ii), (b)(2) are effective May 31, 1994. (4) As required by subsection 306(c). introductory text, (b)(2)(i)(B), grants under this section shall b (b)(2)(i)(C), (b)(3), (b)(4) introductory FOR FURTHER INFORMATION CONTACT: text. (b)(4)(i)(A), and (b)(5); allocated to coastal states under Henry D. Lerner, Legal Assistant, Office i. Section 923.90(a); and approved programs based on rules and of Regulations, Social Security j. Section 923.93(e)(4)(ii) and (g). regulations promulgated by the Administration, 6401 Security 53. Section 923.1(d)(5) is amended by Secretary which shall take into account Boulevard, Baltimore, MD 21235 (410) removing the words "Office of Coastal the extent and nature of the shoreline 965-1762. Zone Management" and adding, in their and area covered by the program. SUPPLEMENTARY INFORMATION: These place, the words "Office of Ocean and population of the area, and other regulations codify present SSI Coastal Resource Management". relevant factors. The Secretary shall procedures with respect to attributing 54. Section 923.90(f) is revised to read establish, after consulting with the ownership of financial institution as follows: coastal states, maximum and minimum account funds for SSI eligibility 923.90 General. grants for any fiscal year to promote purposes. These procedures appear in equity between coastal states and our operating instructions. Title XVI of effective coastal management. the Social Security Act and existing (f) All application and preappication (b) Minimum/maximum allocations. regulations are silent on the issue of forms are to be requested from and The Assistant Administrator shall submitted to: National Oceanic and how funds in financial institution establish minimum and maximum state accounts are attributed for SSI resource Atmospheric Administration. Office of allocations annually, after consultation eligibility purposes. Regulations at Ocean and Coastal Resource with the coastal states. § 416.1201 define resources as "cash or Management, Coastal Program Division. (c)* * * 130S East-West Highway (N/ORM3), other liquid assets or any real or Silver Spring, MD 20910. (d)* * * personal property that an individual (or (e)* * * spouse, if any) owns and could convert PART 926--COASTAL ZONE to cash to be used for his or her support MANAGEMENT PROGRAM (f)Calculation of financial assistance and maintenance." The term "bank DEVELOPMENT GRANTS, award levels. Actual financial assistance account" as used in 416.1201(b) has ALLOCATION OF FUNDS TO STATES award levels will be set from base level been replaced by the term "financial 55, Part 926 is removed and reserved. allocations, any adjustments under institution account" because in the paragraph (e) above, and in accordance past, the use of the term "bank" has 137 Pt. 923 15 CFR Ch. IX (1-1-93 Edition) ciated with it is of transcendent imprtance in the nation's history and the association consequential; or (4) A birthplace, grave, or burial if it is of a historical figure of transcendent national significance and no other appropriate site, building or structure directly associated with the productive life of that person exista; or (5) A cemetery that derives its primary national significance from graves if persons of transcentent importance, or from an exceptionally distinctive design or from an exceptionally significant event; or (6) A reconstructed building or ensemble of building of extraordinary national significance when accurately executed in a suitable environment and presented in a dignified manner as part of a restoration master plan, and when no other buildings or structures with the same association have survived; or (7) A property primarily commemorative in intent if design, age, tradition, or symbolic value has invested it with its own national historical significance; or (8) A property achieving national significance within the past 50 years if it is of extraordinary national imprtance. Table 2: Criteria for inclusion of cultural properties on the work heritage list (1) A monument, group of buildings, or site which have been nominated for includsion on the World Heritage List will be considered to be of outstanding universal value for the purposes of the World Heritage Convention when the World Heritage Committee finds that it meets one or more of the following criteria and the test of authenticity. Each property nominated should therefore: (i) Represent a unique artistic achievement, a masterpiece of the creative genius; or (ii) Have exerted great influence, over a span of time or within a cultural area of the world, on developments in architecture, monumental arts or townplanning and landscaping; or (iii) Bear a unique or at least exceptional testimony to a civilization whcih has disappeared; or (iv) Be an outstanding example of a type of structure which illuminates a significant stage in history; or (v) Be an outstanding example of a traditional human settlement which is representative of a culture and which has become vulnerable under the impact of irreversible change; or (vi) Be directly or tangibly associated with events or with ideas or beliefs of outstanding universal significance. (The Committee considered that this criterion should justify inclusion in the List only in exceptional circumstances or in conjunction with other criteria); and In addiont, the property must meet the test of authenticity in design, materials, workmanship, or setting. (2) The following additional factors will be kept in mindy by the Committee in deciding on the eligibility of a cultural property for inclusion on the List; (i) The state of preservation of the property should be evaluated relatively,, that is, it should be compared with that of other property of the same type dating from the same period, both inside and outside the country's borders; and (ii) Nominations of immovable property which is likely to become movable will not be considered. Part 923--COASTAL ZONE MANAGEMENT PROGRAM DEVELOPMENT AND APPROVAL REGULATIONS Subpart A--General Sec. 923.1 Purpose. 923.2 Definitions. 923.3 General requirements. Subpart B--Uses Subject to Management 923.10 General 923.11 Uses of subject to management. 923.12 Uses of regional benefit. 923.13 Energy facility planning process. Subpart C--Special Management Areas 923.20 General 923.21 Areas of particular concern. 923.22 Areas for preservation or restoration. 923.23 Other areas of particular concern. 923.24 Shortfront access and protection planning. 923.25 Shoreline erosion/mitigation planning. Subpart D--Boundaries 923.30 General. 923.31 Inland boundaries. 923.32 Seaward boundaries. 923.33 Exculded lands. 923.34 Interstate boundaries. Subpart E--Authorities and Organization 923.40 General. 923.41 Identification of authorities. 923.42 State establishment of criteria and standards for local implementation--Technique A. 138 § 923.1 15 CFK Ch. IX (1-1-93 Edition)- Act are dealt with under one of these amendments (15 CPR part 923) pub- groupings. but not necessarily in the lished in the F)WERAT RzGzsT= on De- order in which they appear in the Act. cember 30, 1976. dealing with subsec- (c) In summary. the requirements tions 306(cX2XB), 306(g), and 312 of for program approval are that a State the Act having to do with a continuing develop a manx ement program that: state-local consultation mechanism. (1) Identifies and evaluates those changes to approved management pro- coastal resources recognized in the Act grams, and termination and withdraw- as requiring management or protec- al of funding of approved it tion by the State; programs: (2) Reexitmines existing policies or (4) Final Coastal Zone Management develops new policies to manage these Program Approval regulations amend- resources. These Policies must be spe- ment (15 CPR part 923) published in cific. comprehensive. and enforceable: the FwzRAL RzGzsT= on November 2. (3) Determines specific use and spe- 1976, dealing with subsection 306(h) of cial geographic areas that are to be the Act having to do with 1-sland seg- subJect to the man ement program, ments; based on the nature of Identified (5) The "Threshold Papers," infor- coastal concerns; mal guidance papers issued by Office (4) Identifies the inland and seaward of Coastal Zone Management (OCZM) areas subJect to the man ement pro- in December 1975, but never published gra= in the P==AL RzGxsT= (5) Provides for the consideration of (6) Interim Coastal Zone Manage- the national interest in the planning ment Federal-State Consultation regu- for and siting of facilities that meet lations (15 CFR part 925) published In more than local requirements; and the F==AL RzrisT= on February 2. (6) Includes sufficient legal authori- 1975. dealing with subsections 307 (b) ties and organizational arrangements and (h) of the Act which deal with to implement the program and to federal consultation. review and ap- ensure conformance to it In arriving proval procedures. and mediation at these elements of the man ement during program development and pre- program. States are obliged to follow liminary approval; and an open process which involves provid- (7) Final Coastal Zone Management ing Information to and considering the Program Approval regulations (15 interests of the general public. special CFR part 923) published in the F)CDER- interest groups, local governments, AL RzGzsT= on January 9. 1975, deal- and regionaL State. interstate. and ing with section 306 program approval Federal agencies. requirementa. (d) These regulations revise. consoll- (e) FAch subpart of the regulations date. and supersede the following sets is organized as follows: of existing regulations and guidance (1) An introductory section describ- related to management program devel- ing which subsections of the Act are opment and approval: addressed in the subpart; (1) Interim-FInal Program Develop- (2) Relevant statutory citations; ment and Approval regulations pub- (3) The requirement& Where com- lished March 1. 1978 (15 CFR part ments are included among the require- 923) published in the F@mmLAL RzGis- ments, they are clearly distinguished T= on March 1. 1978. dealing with all by label and type face from the re- sections 305 and 306 program develop- quirements. Comments on individual ment and approval requirements; requirements are Included for the pur- (2) Final Coastal Zone Management pose of providing a clearer under- Program Development regulations (15 standIng of acceptable or recommend- C& part 920) published in the Pmzit- ed ways to meet the requirement; and AL RzataTm on April 29. 1977, dealin (4) G@enerai commentary applicable with section 305 program develop- to all the requirements. ment, preliminary approval and grant (f) While states must meet the re- applications; quirements of these regulations, their (3) Proposed Coastal Zone Manage- presentation-either to the Assistant ment Program Approval regulations Administrator or to the public-need 139 National Oceanic and Atmospheric Adm., Commerce § 923.2 not be in the order or terminology Department of Health. Education. and Wel- used herein. (See 1923.71 for further fare; discussion of the program submission Department of Housing and Urban Develop. format.) ment. Department of the Interior. § 923.2 Definition& Department of Transportation: (a) The term Act means the Coastal Environmental Protection Agencr. Zone Management Act of 1972, as Federal Energy Regulatory Commi ion; General Services Administration: amended. Nuclear Regulatory CommissiorL (b) The term Secretary means the Secretary of Commerce and his/her (e) The term Federal agencies prin. designee. With the exception of the cipally affected shall mean the same mediation functions discussed in as "relevant Federal agencies." The § 923.54, all functions of the Act have Assistant Administrator may expand been vested in the Assistant Adminis- upon the term for purposes of review- trator for Coastal Zone Management Ing the management Program and en. based on duly executed delegations of vironmental impact statemenL authority from the Secretary to the (f) The term Coastal State means a Administrator of the National Oceanic State of the United States in, or bor-- and Atmospheric Administration dering on. the Atlantic, Pacific. or (NOAA) by Department of Commerce Arctic Ocean. the Gulf of Mexico, Organi tional Order 25-5A. and from Long Island Sound. or one or more of the Administrator to the Assistant Ad- the Great Lakes. Pursuant to section ministrator for Coastal Zone Manaff- 304(3) of the Act. the term also in. ment by NOAA Circular 78-14. cludes Puerto Rico, the Virgin Islands, (c) The term Assistant Administra- Guam. and American Samoa. Pursu- tor means the Assistant Admirlistrator ant to section 703 of the Covenant to for Costal Zone Management. Nation- Establish a Commonwealth of the al Oceanic and Atmospheric Aelmini - Northern Marianst Islands in Political tration. U.S. Department of Com- Union with the United States of Amer- merce. ica, the term also includes the North- (d)(1) The term relevant Federal ern Marianas. agencies means those Federal agencies (g) The term management program with programs, activities. projecM reg- includes, but is not limited to, a com- ulatory, financing, or other assistance prehensive statement in words, maps. responsibilities in the following fields illustrations. or other media of com- which could impact or affect a State's munication. prepared and adopted by coastal zone: the State in accordance with the pro- (1) Energy production or transmi3- visions of this title. setting forth ob- sion. Jectives, Policies. and - standards to (ii) Recreation of a more than local guide public and private uses of lands nature. and waters in the coasW zone. The (11i) Transportation. man ement program shall include an (iv) Production of food and fiber. articulation of enforceable policies and (v) Preservation of life and property. citation of authorities providing this (vi) National defense. enforceability. (vil) Historic. cultural. aesthetic, and (h) The following terms, as used in conservation values. these regulations, have the same defi- (vill) Mineral resources and extrac. nition as provided in section 304 of the tion. and Act: Ux) Pollution abatement and con:- (1) Coastal zone, trol. (2) Coastal watem (2) The following are defined as rele- (3) Efftuary. vant Federal agencies: (4) Tand use. Department of Agriculture; (1) The term grant means a financial Department of Commerce. assistance instrumment and refers to Department of Defensc both grants and cooperative agree- Department of Enerffr. ments. 14 C, 923.3 923.3 General requirements. (a) Statutory Citations, Subsection 306(c)(1): . Prior to granting approval of a management program submitted by a coastal state, the Secretary shall find that: (1) the State had developed and adopted a management program for its coastal zone * * * which is adequate to carry out the purposes of this title and is consistent with the policy declared in section 303 of this title. Section 302: The Congress finds that-- (a) There is a national interest in the effective management, beeneficial use, protection, and development of the coastal zone. (b) The coastal zone is rich in a variety of natural, comercial, recreational, industrial, and aesthetic resources of immediate and potential value to the present and future well-being of the Nation; (c) The increasing and competing demands upon the lands and waters of our coastal zone occasioned by population growth and economic development, including requirements for industry, commerce, residential development, recreation, extraction of mineral resources and fossil fuels, transportation and navigation, waste disposal, and harvesting of fish, shellfish, and other living marine resources, have resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent, and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion; (d) The coastal zone, and the fish, shellfish, other living marine resources, and wildlife therein, are ecologically fragile and consequently extremely vulnerable to destruction by man's alterations; (e) Important ecological, cultural, hostoric, and aesthetic values in the coastal zone which are essential to the well-being of all citizens are being irretrievably damaged or lost; (f) Special natural and scenic characteristics are being damaged by ill-planned development that threatens these values; (g) In light of competing demands and the urgent need to protect and to give high priority to natural systems in the coastal zone, present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate; and (h) The key to more effective protecion and use or the land and water resources of the coastal zone is to encourage the states to exercise their full authority over the lands and waters in the coastal zone by assisting the states in cooperation with ferderal and local governments and other vitally affected interests in developing land and water use programs for the coastal zone including unified polices, criteria, standards, methods, and proicesses for dealing with land and water use decisions of more than local significance. (i) The national objective of attaining a greater degree of energy self-sufficiency would be advanced by providing federal financila assistance to meet state and local needs resulting from new or expanded energy activity in or affecting the coastal zone. Section 303: The Congress finds and declares that it is the national policy (a) to preserve, protect, develop, and where possible, to restore or enhance the resources of the Nation's coastal zone for this and suceeding generations; (b) to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone giving full consideration to ecological, cultural, historic, and aesthetic values as well as to needs for economic development. (c) for all Federal agencies engaged in programs affecting the coastal zone to cooperate and participate with State and local governments and regional agencies in effectuating the purposes of this title, and (d) to encourage the participation of the public, of Federal, state and local governments and of regional agencies in the development of coastal zone management programs, it is the national policy to encourage cooperation among the various state and regional agencies including establishment of interstate and regional agreements, cooperative procedures, and joint action particularly regarding environmental problems (b) Requirements. The approvability of any state program will be determined by the Assistant Administrator in accordance with the following general requirements: (1) The management program must provide for the management of those land and water uses having a direct and significant impact on coastal waters and must take steps to assure the appropriate protection of those significant resources and areas, such as wetlands, beaches and dunes, and barrier islands, that meke the state's coastal zone a unique, vulnerable, or valuable area; (2) The management program ust contain three broad classes of policeis, consistent with the findings of section § 923.12 15 CFR CH. IX (1-1-93 Edition) velopment activities and are not sub- (b) Requirement. In order to meet ject to the Federal consistency re- the requirements of subsection quirements of section 307(c)(1)): 306(e)(2) of the Act, States must: (iii) Recreational facilities such as (1) Identify what constitute uses of beaches, amusement parks. marinas regional benefit. and other boating facilities; (2) Identify and utilize any one or a (iv) Public facilities and public works combination of methods, consistent such as schools, hospitals, government with the control techniques employed buildings, dams and water treatment by the State, to assure local land and facilities; and water use regulations do not unreason- (v) Transportation facilities such as ably restrict or exclude uses of region- highways, railroads, airports, ports al benefit. and harbors. (3) States should utilize the follow- 923.13 Energy facility planning process. ing types of analyses: (i) Capability and suitability of re- (a) Statutory Citation Subsection sources to support existing or project- 305(bX8): ed uses; The management program for each coast- (ii) Environmental impacts on coast- al state shall Include (8) A planning al resources. process for energy facilities likely to be lo- (iii) Compatability of various uses cated in, or which may significantly affect, with adjacent uses or resources; the coastal zone, including. but not limited (iv) Evaluation of inland and other to, a process anticipating and managing the location alternatives; impacts from such facilities (v) Water dependency of various (b) Requirements. States must devel- uses and other social and economic op a planning process which is capa- considerations. ble, at a minimum, of anticipating and (4) Since management of uses must managinig the impacts from energy fa- take into account the full range of considerations called for in sections cilities in or affecting a State's coastal 302, 303 and 307(f) of the Act. exami- zone. This process must include the .nation of the following representative following elements: factors is suggested: (1) Identification of energy facilities (i) Air and water quality. which are likely to locate in, or which (ii) Historic, cultural and aesthetic may signfficantly affect, a State's resources where coastal development coastal zone: resources is likely to affect these re- (i) In determining energy facilities sources; which may significantly affect the (iii) Open space or recreational uses coastal zone. States must consider, at a of the shoreline where increased minimum, those facilities listed in sub- access to the shorefront is a particu- section 304(5) of the Act. larly important concern; (ii) At a minimum "significantly (iv) Floral and faunal communities affect", shall be defined in terms of where loss of living marine resources substantial or potentially substantial or threats to endangered or threat- changes in coastal zone resources ened coastal species are particularly which could be affected by a proposed important concerns. energy facility. These include changes (44 FR 18595, Mar. 28. 1979, as amended at in land, air, water, mineral. flora, 50 FR 35213, Aug. 30, 1985) fauna, noise, and objects of historic, cultural, archeological or aesthetic sig- § 923.12 Uses of regional benefit nificance. (a) Statutory Citation. Subsection (2) Procedures for assessing the suit- 308(e)(2): ability of sites for such facilities. This assessment procedure shall be de- Prior to granting approval the Secretary signed to evaluate, to the extent prac- shall also find that the program provides ticable, the costs and benefits of pro- for a method of assuring that local posed and alternative sites in terms of and water use requlations within the coastal zone do not unreasonable restrict or exclude State and national interests as well as land and water uses of regional benefit. local concerns. 142 National Oceanic and Atmospheric Adm., Commerce § 923.11 302 of the Act. that are related to re- D). This subpart deals in full with the source protection. management of requirements of subsections coastal development, and simplifica- 305(b)(2)-Uses Subject to Manage- tion of governmental processes. ment. 305(b)(8)-Energy Facility Plan- (1) Within these three broad cl ning. and 306(e)(2)-Uses of Regional states must include specific Policies Benefit. that provide the framework for the exercise of various managernen tech- § 923.11 Us" subject to numagement. niques and authorities governing (a) Statutory Citation. Subsection coastal resources. usm and areas- 305(b)(2): al) As part of these three broad classes of policies. the management The management program for each coast- program must include policies that ad. &I state shall include ' * * A definition of dress uses of or impacts on wetlands 'hat shall constitute permissible land uses and floodplains within the State's and water uses within the coastal zone which have a direct and significant impact coastal zone. These particular Policies on the coastal water. shall minimize the destruction. loss or degradation of wetlands and preserve (b) Requirement& (1) States must and enhance their natural values in identify those land and water uses accordance with the purposes of Presi- that will be subject to the term of the dential Executive Order 11990, per- management program. These uses taining to wetlands. These policies also shall be those with direct and signifi- shall reduce risks of flood loss. mini- cant impacts on coastal watem mize the impact of floods on human (2) The management program must safety. health and welfare. and Pre- explain how those uses identified in serve the natural. beneficial values paragraph (b)(1) of this section will be served by floodplains. in accordance managed. The management program with the purposes of Presidential Ex- must contain those enforceable poli- ecutive Order 11988. pertaining to cies. legal authorities, performance floodplains. - standards or other techniques or pro- (3) The policies in the program must cedures that will govern whether and be appropriate to the nature and how uses will be &UowecL conditioned. degree of management needed for modified, encouraged or prohibited. uses, areas. and resources identified as (c) General comment& (1) In identi- subject to the program. fying uses and their appropriate man- (4) The policies. standards. obJec- agement, States should analyze the tives. criteria. and procedures by quality, location. distribution and which program decisions will be made demand for the natural and man-made must provide (i) a clear understanding resources of their coastal zone. of the content of the program espe- (2) States also should consider po- cially in identifying who will be affect- tential individual and cumulative im- ed by the program and how, and (H) a pacts of uses on coastal waters includ- clear sense of direction and ing. but not limited to the following predictability for decisionmakers who UM& must take actions pursuant to or con- W Residential and commercial devel- sistent with the management PrOgranL opments such as subdivisions. highrise apartments or hotels, trailer parks and Subpart 5--Usos Subject to second-home developments, and shop- Management ping centers: (U) Industrial developments. such &a § 923.10 General. tanir farms and reflnerim power This subpart deals with land and plants. manufacturing complexes, in- water uses which. because of their dustrial parks, onshore and offshore direct and significant impacts on port facilitim mineral and sand ex- coastal waters, are subject to the traction operations, Uquifted natural terms of the man ement program gas (LNG) facilities. petrochemical Determin ti n of these umm will assist planta. and Outer Continental Shelf in determining the appropriate coastal, (OCS) development (OCS oil and gas man ement bound&ry (see subpart lease -sale activities do not involve de- 143 National Ocoanic and Atmosphoric Adm., Comm*rce § 923.13 (3) Articulation and identification of (iii) Identifying potential coastal im. enforceable State policies, authorities pacts; and and techniques for managing energy Uv) Determining site suitability of facWties and their impacts; alternative locations for particular fa- (1) States must identify any condi- cUlties. tions that may be attached to State (2) In developing this planning proc. energy facility. planning and siting ess. States should address several procedures; common problems having to do with an States must list relevant consti- weak policy and planning linkages tutional provisions. laws. regulations, and. relatedly, fragmented and over- judicial decisions and other appropri- lapping jurisdiction& ate official documents or actions that (I) Often there is no comprehensive are specifically related to planning for. planning process. While one state anticipating and managing energy fa. agency may develop energy Plans or cilities or impacts. including licensing Policy regarding energy facilities. or permitting procedures. other state or local agencies may have (4) Identification of how interested the responsibility for issuing rece3sory and affected public and private parties siting and operating permits. Often will be involved In the planning proc- these other agencies operate independ- ess. ently of and without regard to state M States must identify the organiza- energy or coastal management poli- tion and structure and procedure cies. means by which energy facility plan- (ii) Relatedly. the responsibility for ning and siting decisions are carried permitting of facilities is diffuse. out in the State. Often several permits are required (ii) States must address the respec- from several different agencies at dif- tive roles of relevant State agencies ferent levels of government. and their relationship to the lead Qll) Additionally, there frequently agency and to the management pro. are differing permitting processes for gram's requirements as well as the re- different types of energy facilities spective roles and opportunity for par- (e.g.. oil and gas facilities as distinct ticipation by Federal agencies, local from electric power plants). This may governments. other interested and af- result in a lack of standardized proce- fected public and private parties. (iii) States must integrate into this dures as well as inconsistent applica- planning process the procedures by tion of coastal management policies. which the national interest in the (3) In order to address these prob- planning for and siting of energy fa- lems and to assure th e full integration cilities, Identified pursuant to of coastal management considerations § 923.52(c) can continue to be consid- with the energy facility planning proc- ered after program approval. ess, States should consider the follow- (c) General commentL (1) States are ing-* encouraged to develop the elements (I) Establishment of the designated required in paragraph (b) in consult&. State coastal man gement agency as tion and cooperation with other State. the lead agency in revewing: and local and Federal agencies. General m%Lking decWons related to siting and consultation requirements for pro- conditions of development for energy gram development, of which this con- facilities located in or significantly af- sultation should be considered a part, fecting the coastal zone; are discussed more fully in J 923.51. M In states where siting authority Depending on the approach taken to is vested in an agency other than the energy facilities man ement. this coastal management agency. establish. consultation and coordination should ment of a formal means to assure -the include, but need not be limited. to input and consideration of the coastal procedures for. man ement agency's views an Part of (I) Assessing need/dern-nd ProJec- the decision-mairin process; tiona: (W) Establishment of a procedure (U) Allocating these needs among whereby the management program coastal and InUnd locations; policies are incorporated Into location- 144 § 923.20 15 CFR Ch. IX (1-1-93 Edition) al or developmental decisions (e.g., li- The management program for each coast- censes, permits, zoning approvals). al state shall include (a) an inventory and designation of areas Subpart C Special Management of particular concern within the coastal zone. Areas Subsection 305(b)(5): § 923.20 General. The management program for each coast- (a) This subpart deals with areas al state shall include that are of particular concern because (b) broad guidelines an priorities of uses of their coastal-related values or char- in particular areas including specifically acteristics. or because they may face those uses of lowest priority. pressures which require detailed atten- (b) Requirements. (1) Inventory and tion beyond the general planning and designate geographic areas that are of regulatory system which is part of the particular concern, on a generic (ie., management program. As a result, by type of areas, such as all wetlands or these areas require special manage- port areas) or site-specific basis, or ment attention within the terms of both; the State's overall coastal program. (i) In developing criteria for inven- This special mangement may include torying and designating areas of par- regulatory or permit requirements ap- ticular concern. States shall consider plicable only to the area of particular whether the following represent areas concern. It also may include increased of concern requiring special manage- intergovernmental coordination, tech- ment: nical assistance, enhanced public ex- (A) Areas of unique, scarce, fragile penditures, or additional public serv- or vulnerable natural habitat; unique ices and maintenance to a designated or fragile, physical figuration (as, for area. This subpart deals with the fol- example. Niagara Falls); historical sig- lowing subsections of the Act: nificance, cultural value or scenic im- 305(b)(3)--Geographic Areas of Par- portance (including resources on or de- ticular Concern; 305(b)(5)--Guidelines termined to be eligible for the Nation- on Priorities of Uses; 305(b)(7)--Shore- al Register of Historic Places.); front Access and Protection Planning: (B) Areas of high natural productivi- 305(b)(9)-Areas for Preservation and ty or essential habitat for living re- Restoration. sources, including fish, wildlife, and (b) The importance of designating endangered species and the various areas of particular concern for man- trophic levels in the food web critical agement purposes and the number and to their well-being; type of areas that should be designat- (C) Areas of substantial recreational ed is directly related to the degree of value and/or opportunity. comprehensive controls applied (D) Areas where developments and throughout a State's coastal zone. facilities are dependent upon the utili- Where a State's general coastal man- zation of, or access to, coastal waters: agement policies and authorities ad- (E) Areas of unique hydrologic, geo- dress state and national concerns com- logic or topographic significance for prehensively and are specific with re- industrial or commercial development spect to particular resources and uses, or for dredge spoil disposal: relatively less emphasis need be placed (F) Areas or urban concentration on designation of areas of particular where shoreline utilization and water concern. Where these policies are lim- uses are highly Competitive; ited and non-specific, greater emphasis (G) Areas where, if development should be placed on areas of particular were permitted, it might be subject to concern to assure effective manage- significant hazard due to storms, ment and an adequate degree of pro- slides, floods, erosion, settlement, and gram specificity. salt water intrion; 923.21 Areas of partucular concern. (H) Areas needed to protect, main- tain or replenish coastal lands or re- (a) Statutory Citations Subsection sources including coastal flood plains, 305(b)(3): aquifers and their recharge areas, es- 145 National Oceanic and Atmospheric Adm., Comm*rce § M24 tuaries. sand dunes. coral and other 0 923.23 Other areas of particular con. reefs, beaches, offshore sand deposits cern. and mangrove stands. (a) States must meet the require- M Where states will involve local ments of j 923.21(b) in order to receive governmenta, other state agencies. f ed- program apProval. Beyond this, States eral agencies and/or the public in the have the option of designating specific process of designating areas of particu- areas known to require additional or lar concern. States must provide guide- special management. but for which ad. lines to those who Will be involved in ditional man gement techniques have the designation process. These guide- not been developed or necessary au. lines shall contain the purposes. crite- thorities have not been established at ria. and procedures for nominating the time Of Program ILPProval. Where areas of particular concern. States exercise this option, they must (2) Identify areas by location (if site meet the requirements of Paragraph specific) or category of coastal re- (b) of this sectiorL sources (if generic) in sufficient detail (b) Requiremena (1) The basis for that affected landowners. governmen- designation of these additional special tal entities and the public can deter. management areas must be clearly mine with reasonable certainty if a stated; given area is or is not designated. (2) A reasonable time frame and pro- (3) Describe the nature of the con. cedures mu t be established for devel- cern and the basis on which designa- oping and implementing appropriate tions are made in order to: M Indicate management techniques. These proce. why areas or types of areas have been dure3 must provide for the develop. selected for special management atten. ment of those items required in tion, and M provide a basis for appro- 923.21(b); - priate management policies and use (3) An agency (or agencies) capable guidelines. of formulating the necessary manage. (4) Describe how the management ment policies and techniques must be program addresses and resolves the identified. concerns for which areas axe designat- (c) States must meet the require- ed: and ments of I 923.22(b) for having Proce- .(5) Provide guidelines regarding Pri- dures; for designating areas for preser- orities of uses in these areas, inclUding vation or restoration. Beyond this, guidelines on uses of lowest prioritY. States have the option of including procedures for designating areas of 923.22 Areas for preservation or restora- particular concern for other than pres- tion. ervation or restoration purposes after (a) Statutory Citation. Subsection program approv&L*Where States exer- 306(c)(9): cise this option. they must meet the requirements of paragraph (d) of this Prior to granting approval of a manage- section. ment program submitted by coastal state. (d) Requtrement& (1) The criteria by the Secretary shall find that * 0 The man. agement program makes provisions for pro- which designations of additional areas cedures whereby speWic areas may be de*- of particular concern will be made iznated for the Purpoise of preserving or re- must be included in the management storing them for their conservation. recre- Program; and ationaL ecological or aesthetic values. (2) The procedures by which such (b) RequirementL (1) The criteria by designations will be made must be in- which desi-nations, will be made must cluded in the mansk ement Program. be included in the management pro- 0 923.24 Shorefront access asul protection gram. Designations may be made for ptannin& the purposes of preserving or restoring areas for their conservation. recre- (a) Statutory Citation. Subsection ational. ecological, or aesthetic values. 305(bX7): (2) The procedures by which desig- The mAnaamerit procram for each co*At- nations wiU be made must be included &I a h - I I Weludle . . . (a) a deftaition, of the in the management program term"beach" and a pl-nin procem for the 146 § 923.25 15 CFK Ch. IX (1-1-93 Edition) protection to. and access to. public beaches ant to 1923.21 or as areas for preserva- and other public coastal areas of environ- tion or restoration pursuant to mental. recreatonal. historical. esthetic. ec- 923.22. ological or cultural value. (c) Requirements. (1) The manage- (b) The basic purpose in focusing ment program must include a method special planning attention on shore- for assessing the effects of shoreline front and protection is to pro- erosion and evaluating techniques for vide public beaches and other public mitigating, controlling or restoring coastal areas of environmental. recre- areas adversely affected by erosion. ational. historic. esthetic. ecological or (2) There must be an identification cultural value with special manage- and description of enforceable policies ment attention within the purview of legal, authorities, funding techniques the State's management program. and other techniques that will be used This special management attention to manage the effects of erosion as the may be achieved by designating public States planning process indicates is shorefront areas requiring additional necessary. access or protection as areas of par- ticular concern pursuant to 923.21 or Subpart D-Boundaries areas for preservation or restoration pursuant to 923.22. 923.30 General (c) Requirements. (1) The manage- ment program must contain a proce- (a) This subpart deals in full with dure for assessing public beaches and subsection 305(b)(1) of the Act- other public areas. Including State Boundaries of the Coastal Zone. owned lands. tidelands and bottom (b) There are four elements to a lands. which require access or protec. State's boundary'. The Inland bounda. tion. and a description of appropriate ry. the seaward boundary. areas ex- types of access and protection. cluded from the boundary, and. in (2) There must be a definition of the most cases, interstate boundaries. Spe. term "beach" that is the broadest defi- cific requirements with respect to pro- nition allowable under state law or cedures for determining and identify- constitutional provisions. and an Iden- ing these boundaries are discussed in tification of public areas meeting that the sections of this subpart that definition. follow. (3) There must be an Identification (c) Statutory Citations, Subsection and description of enforceable Policies. 305(b)(1): legal authorities. funding programs The management program for each coast- and other techniques that will be used al state shall include *** 1 (1) An identifica- to provide such shorefront access and tion of the boundaries of the coastal zone protection that the State's planning subject to the management program process indicates is necessary. Subsection 304(l): 923.25 Shoreline erosion/mitigation The term "coastal zone" means the coast- planning. al waters (including the lands therein and (a) Statutory Citation. Section thereunder). and the adjacent shorelands 305(b)(9): (including the waters therein and thereun- der). strongly influenced by each other in The management program for each coast- proximity to the shorelines of the several al state shall include *** A plannin proc- coastal states and includes islands, transi- ess for (a)assessing the effects of shoreline itional and intertidal areas. salt marshes, erosion (however caused), and (B) studying wetlands and beaches. The zone extends,in and evaluating ways to control. or lessen the Great Lake waters. to the international impact of, such erosion. and to restore areas boundary between the United States and adversely affected by such erosion. Canada and, in other areas seaward to the (b) The basic purpose in developing outer limit of the United States territorial sea. The zone extends inland from the this planning process is to give special shorelines, only to the extent necessary to attention to erosion issue. This spe- control shorelines, the uses of which have a cial management attention may be direct and significant Impact on the coastal achieved by designating erosion areas waters. Excluded from the coastal zone are as areas of particular concern pursu- lands the use of which is by law subject 147 Nationai Octunic and Atmosphoric Adm., Commerco § 923.32 solely to the discretion of or which is held ment area. States must be able to in trust by the Pederal Government, its offi- advise interested parties whether they cersor agents. are subject to the terms of the man- Subsection 304(2): agement program within, at a maxi- The term "coastal waters" means (A) in mum. 30 days of receipt of an inquiry. the Great Lakes area. the waters within the An inland coastal zone boundary de. territorial Jurisdiction of the United States fined in terms of 11011tical Jurisdiction consisting of the Great Lakes. their con- (eg.. county, township or municipal necting waters. harbom roadsteads. estu- lines) cultural features (e.g.. highways, ary-type areas such as bays. shallows and railroads). planning areas (e.g., region- marshes, and (B) in other areas. those al agency Jurisdictions, census enu- waters adjacent to shorelines which contain meration districts), or a uniform set- a measurable quantity or percentage of sea- back line is acceptable so long as it in- water. including but not limited to. sounds. bays, lagoons. bayous. ponds and estuarie& cludes the areas Identified. M Beyond those areas required by § 923.31 Inland boundariec paragraph (a) of this section above (a) Requirements. The inland bound- States have the option of including ary of a State's coastal management the following within the coastal zone area must include: boundaries: (1) Those areas the management of (1) Watersheds-A State may deter- which is necessary to control uses mine some uses within entire water- which have direct and significant im- sheds have direct and significant pacts on coastal waters, pursuant to impact on coastal waters. In such cases 1923.11 of these regulations; it may be appropriate to define the (2) Those special management areas coastal zone as Including these water- identified pursuant to § 923.21: sheds. (3) Waters under saline Influence- (2) Areas of tidal influence that Waters containing a significant quan- extend further inland than waters tity of seawater. as defined by and uni- under saline influence; particularly in formly applied by the State; estuaxies, deltas and rivers where uses (4) Salt marshes and wetlands- inland could have direct and signifi- Areas subject to regular inundation of cant impacts on coastal waters. tidal salt (or Great Lakes) waters (3) Indian lands not held in trust by which contain marsh flom typical of the Federal Government. the region. (c) GenercU comments. Urban areas: (5) Beaches-The area affected by In mAny urban areas or where the wave action directly from the sea. Ex- shoreline has been modified extensive- amples are sandy beaches and rocky ly, natural system relationships be- areas usually to the vegetation line., tween land and water may be extreme- (6) Transitional and intertidal ly difficult, if not. impossible, to define areas-Areas subject to coastal storm in terms of direct and significant im- surge. and areas containing vegetation pacta. Two activities that States that is salt tolerant and survives be- should consider as causing direct and cause of conditions associated with significant impacts on coastal waters proximity to coastal waters. Tmnsi- in urban areas am sewage discharges tional and intertidal areas also include and urban runoff. In addition. States dunes and rocky shores to the point of should consider dependency of uses on upland vegetation: (7) T-glands-Bodies of land surround- water access and visual relationships ed by water on all sides. Islands must as factors appropriate for the determl- be included in their entirety. except nJLtion of the Inland boundary In when uses of interior portions of is. histaY urbanized areas. lands do not cause direct and AgnW. cant impacts. I 92L32 Seaward boundaries. (8) The ln',Lnd bouncbu7 must be (a) RequirementL (1) For States ad- presented in a manner that Is clear Joining the Great Lakes. the waward and exact enough to permit determi- boundary is the International bound&- nation of whether property or an ac. ry with Canada or the boundAxies with tivity Is located within the mana e- adjacwt States. For all other StAtes 148 923.33 15 CFR Ch. IX (1-1-93 Edition) participating in the program, the sea- visions of section 307 of the Act when ward boundary is the outer limit of Federal actions on these excluded the United States territorial sea. lands have spillover impacts that sig- (2)The requirement for defining the nificantly affect coastal zone areas. seaward boundary of a State's coastal uses or resourcews within the purview zone can be met by a simple restate- of a State's management program. ment of the limits defined in this sec- Therefore, States should consider tion, unless there are water areas mapping the following types of ex- which require a more exact delinea- cluded Federal lands: tion because of site specific policies as- (i) Large-scale holdings (of 100 or sociated with these areas. more acres),especially those on which Where states have site specific poli- Federal activities may have spillover cies for particular water areas, these effects; shall be mapped,described or refer- (ii)Lands near special managemnent enced so that their location can be de- areas;and termined reasonably easily by any (iii)Lands that may be declared sur- party affected by the policies. plus or excess in the near future, espe- (b) General comments. The seaward cially those for which the State has limits, as defined in this section, are reuse priorities or policies. for purposes of this program only and (2)In excluding Federal lands from represent the area within which the a State's coastal zone for the purposes State's management program may be of this Act, a State does not impair authorized and finance. These limits any rights or authoroitites that it may are irrespective of any other claims have over Federal lands that exist sep- States may have by virtue of the Sub- arate from this program. merged Lnads Act or any chages that may occur as a result of the Fisheries 923.34 Conservation and Management Act of Requirement. States must document 1976. that there has been consultation and 923.33Excluded lands. coordinatin with adjoining coastal (a) Requirement. States must ex- States regarding delineation of adja- clude form thier coastal management cent inland and lateral seaward bound- zone those lands owned, leased, held in aries. trust or whose use is otherwise by law subject solely to the discretion of the Subpart E-Authorities and Federal Government, its officers or Organizations agents. To meet this requirement, States must describe, list or map lands 923.40 General or types of lands owned, leased, held (a) The authorities and organiza- in trust or otherwise used solely be tional structure on which a State will Federal agencies. rely to administer its management (b) Indian lands. Tribal participa- program are the crucial underpinnings tion in coastal manangement efforts for enforcing the polices which guide may be supported and encouraged the management of the uses and areas through a State's program provided identified according to the previous that: subparts. There is a direct relationship (1) Tribal lands are not held in trust between the adequancy of authorities by the Federal Government or other- and the adequacy of the overall pro- wies excluded from the coastal zone; gram. The authorities need to be and broad enough in both geographic (2) Such efforts are compatible with scope and subject matter to ensure im- a State's coastal management polices plementation of the State's enforcea- and are in furtherance of the national ble polices. These enforceable polices polices of section 303 of the Act. must be sufficiently comprehensive (c) General comments. (1) The exclu- and specific to regulate land and water sion of Federal lands does not remove uses, control development, and resolve Federal agencies from the obligation conflicts among competing uses in of complying with the consistency pro- order to assure wise use of the coastal 149 National Oceanic and Atmospheric Adm., Commerce 923.41 zone. (Issues relatine to the adequate 923.41 Identification of authorities. scope of the program are dealt with in 923.3.) (a) Statutory Citations, Subsection (b) The entity or entitles which will 305(b)(4): exercise the program's authorities is a matter of State determination. They The management program for each coast- may be the States agency designated al state shall include...(4) An idenifica- pursuant to section 306(c)(5) of the tion of the means by which the state pro- Act, other State agencies, regional or poses to exert control over the land uses interstate bodies, and local govern- and water uses referred to in paragraph (2), ments. The major approval criterion is including a listing of relevant constituional a determination that such entity or provisions, laws,regualtions,and judicial de- entitles are required to exercise their cisions. authorities in conformance with the polcies of the management program. Subsection 306(c)(7): Accordingly, the essential requirement is that the State demonstrate that Prior to granting approval of a manage- there is a means of one or a combination ment program submitted by a coastal state. the three control techniques specified the Secretary shall find that***(7) The in the section 306(e)(1) of the Act. The re- state has the authorities necessary to imple- quirements related to section 306(e)(2) ment the program, including the authority are described in 923.42 through required under subsection (d) of this sec- 923.44 of this subchapter. tion. (c) In determining the adequacy of the autorities and organization of a Subsection 306(d): State's program, the Assistant Admin- istrator will review and evaluate au- Prior to granting approval of the manage- thorities and organizational arrange- ment program, the Secretary shall find that ments in light of the requirements of the state, acting through its chosen agency this subpart and the finding of section or agencies, including local governmets, 302(g) of the Act, which provides: areawide agencies designated under section 204 of the Demonstration Cities and Metro- In light of competing demands and the politan Development Act of 1966, regional urgent need to protect and to give high pri- agencies, or interstae agencies, has author- ority to natural systems in the coastal zone, ity for the management of the coastal zone, present State and local institutional ar- in accordance with the management pro- rangements for planning and regulating gram. Such authority shall include power. land and water uses in such areas are inad- (1) To administer land and water use regu- equate. lations, control development in order to ensure compliance wiht the management (d) The authorities requirements of program, and to resolve conflicts among the Act dealt wiht in this subpart are competing uses; and those contained in subsection (2) To acquire fee simple and less than fee 305(b)(4)--Means of control; simple interests in lands, waters, and other 306(c)(7)--Authorities; 306(d)(1)--Con- property through condemnation or other trol Development and Resolve Con- means when necessary to achieve conform- flicts; 306(d)(2)-Powers of acquisi- ance with the management program. tion; 306 (e)(1)-Technidques of Control; (b) Requirements. In order to meet and 307 (f)--Air and Water Quality the requirements of the preceding sub- Control Requirements. The organiza- sections of the Act, States must: tional requirements of the Act dealt (1) Identify relevant constituional with in this subpart are those con- provisions,statutes, regulations, case tained in subsections 305(b)(6)--Orga- law and such other legal instruments nizational Structure; 306(c)(6)--Or- (including executive orders and inter- ganization. agency agreements) that will be used to carry out the State's management program. (2) This identification will include the authorities pursuant to sections 306(d) and 306(e) of the Act which re- quire a Stae have the ability to: (1) Administer land and water use regulations in conformance with the polices of the management program: § 923.42 It IS CFR Ch. IX (1-1-93 Edition) (ii) Control such development as is (5) The State has the ability to necessary to ensure Compliance with assure local compliance with its pro- the management program: and gram once approved. (111) Resolve conflicts among compet- ing uses: More detailed and specific require- Ov) Acquire appropriate interest in ments for each of these general items lands. waters or other property as nec- are contained in paragraph (c) of this essary to achieve management objec- section. * tives. Where acquisition will be a nec. (c) RequirementL (1) The State must essary technique for accomplishing -have developed and have in effect -at particular program policies and objec- the time of program approval enforce. tives. the management program must able policies that meet the require. indicate for what purpose acquisition ments of § 923.3. These Policies must will be used (Le., what policies or ob- serve as the standards and criteria for jectives will be accomplished): the local program development or the type of acquisition (e.g.. fee simple, State must have separate standards purchase of easements. condemna- and criteria. related to these enforcea- tion); and what agency (or agencies) of ble policies. that will guide local pro- government have the authority for gram development. the specified type of acquisition. (2) During the period while local programs are being developed, a State § 923.42 State establishment of criteria must have sufficient authority to and standards for local implementa. assure that land and water use deci- tion-Technique A. sions subject to the managment pro. (a) Statutory Citation. Subsection gram will comply with the program's 306(e)(1)(A): enforceable Policies.. The adequacy of these authorities wil be judged on the Prior to granting approval. the Secretary same basis as specified for direct State shall also find that the program provides: controls or case-by-case reviews. (1) Por anyone or a combination of the (3) A State must be able to ensure following general techniques for control of land and water uses within the coastal zone. that coastal programs will be devel- (A) State establishment of criteria and oped pursuant to the State's standards standards for local Implementation. subject and criteria. or failing this, that the to administrative review and enforcement of management program can be imple- compliance * 0 -9 mented directly by the State. This re- (b) Control technique subsection quirement can be met if a State can 306(e)(1)(A) of the Act aJaows for exercis se any one of the following tech- State establishment of criteria and aiQues: standards for local implementation, U) Direct State enforcement of its subject to administrative review and standards and criteria in which case a enforcement of compliance. There are State would need to meet the require- 5 principal requirements associated ments of this section which address with use of this control technique. the direct State control technique; They are that: (U) Preparation of a local program (1) The State have in place adequate by a State agency which the local gov- standards and criteria to guide local ernment then would Implement To program development; use this technique the State must (2) During the period while local have (A) statutory authority to pre- programs are being developed. the pare and adopt a program for a local State has sufficient authority to government, and (B) a mechanism by assure compliance with the manage- which the State can cause the local ment program's enforceable policies; government to enforce the State-cre- (3) The Sta can ensure that local ated ProgranL VVhere the mechILMAM. coastal programs will be developed to assure local enforcement will be Ju- pursuant to its standards and criterW dicial relief. the program must include (4) The State review and approve the authority under which judicial local coastal programs to asmire their rellef can be sought; conformance to State standards and (iU) State preparation and enforce- criterW and ment of a program on behalf of a local 151 National Ocoanic and Atmosphoric Adm., Camm*rce § 923.43 government. Here the State must have (1) Establish a monitoring system the authority to (A) Prepare and which defines what constitutes and de- adopt a plan. regulations. and ordi- tects patterns of non-compliance. In nances for the local government and the case of uses of regional benefit (B) enforce such plans. regulations and facilities in which there is a na- and ordinances; tional interest, the monitoring system (iv) State review of local government muit be capable of detecting single in. actions on a case-by-case basis or on stances Of local actions affecting such appeal. and prevention of actions in- uses or facilities in a manner contrary consistent with the standards and cri- to the management program teria. Under this technique. when a (2) Be capable of assuring compli. local government falls to adopt an ap- ance when a p&ttem of deviation is de. provable program. the State must tected or when a facility involving have the ability to review activities In identified national interests or a use of the coastal zone subJect to the MAn- regional benefit is affected in a agement program and the power to manner contrary to the program,s prohibit, modify or condition those ac- policie& when State action is required tivities based on the policies. standards because of failure by a local govern. and criteria of the management pro. ment to enforce its program the State gram: or must be able to do one or a combina-' M If a locality falls to adopt a man. tion of the following.- agement program. the State may uti. W Directly enforce the entire local lize a procedure whereby the responsi- progra= bility for preparing a program shifts (it) Directly enforce that Portion of to an intermediate level govemment@ the local program that is being en. such as a county. If this intermediate forced improperly. State intervention level of government fails to produce a would be necessary only in those local program. then the State must have governmen activities that are violat- the ability to take one of the actions ing the policies, standards or criteria. described above. This alternative (ifl) Seek Judicial relief against local cannot be used where the intermediate government for failure to properly en- level of government lacks the legal au- force; thority to adopt and implement regu- (ir) Review local government actions lations necessary to implement State on a case-by-case basis or on appeal policies, standards and criteria. and have the power to prevent those (4) A State must have a procedure actions inconsistent with the policies whereby it reviews and certifies the and standards. local program's compliance with State M Provide a procedure whereby the standards and criteria. This procedure responsibility for enforcing a program mu t include provisions for. shifts to an intermediate level of gov- W Opportunity for the public and ernment. assuming statutory author- governmental entities (including Fed- Ity exists to enable the immediate of eral agencies) to participate in the de- government to &mime this responsibil- velopment of local programs; and ity. M Opportunity for the public and governmental entities (including Fed- 6 923.43 Direct State land and water use eral agencies) to make their views planning and regulation-Technique EL known (through public hearings or other means) to the State agency prior (a) Statutory Citation, Subsection to approval of local programs; and 30&eXlXB): (W) Review by the State of the ade- Prior to granting approval. the 8ecretary quacy of local programs consideration shall LIM find that the I)rogMM provideC of facilities identified in a State's man- (1) Flor any one or a combination of the agement program in which there is a following general techniques for control of national interest land and water umes within the coastal (A) A State must be able to assure 0 0 " Direct xt&W lamd and water use plan- implementation and enforcement of a aina regulation. Ioca.l program once approvedL To ac- (b) Control technique subsection complish this a State muLsV 306(eXIXB) of the Act allows for 152 § 923.44 15 CFR Ch. IX (1-1-93 EdMen) direct state control of land and water their operating rules and regulations, uses subject to the management pro- then any proposed revisions to such gram on the basis of direct State au- rules and regulations which would en- thority. This authority can take the hance or facWtate implementation form of: need not be accomplished prior to pro- (i) Comprehensive legislation: A gram approval. Where State agencies single piece of comprehensive legisla- cannot enforce coastal policies without tion specific to coastal management first revising their rules and regula- and the requirements of this Act. tions. then these revisions must be (2) Networking. The utilization of made prior to approval of the State's authorities which are compatible with program by the Assistant Adminiftra. and applied on the basis of coastal tor. management Policies developed pursu- ant to 1923.3 1923.44 State review on a case-by-case (c) Reauirements. In order to apply basis of actions affecting land and the networking concept, State must: water uses subject to the management (1) Demonstrate that. taken togeth- program.-Technique C. er, existing authorities can and will be (a) Statutory Citation; Subsection used to implement the full range Of 306(eXlXC): Policies and Anagement techniques Prior to granting approvaL the Secret4uT identified as necessary for coastal -shall find that the program provides: management purposes; and (1) Por my one or a combination of the (2) Bind each party which exercises following general techniques for control of statutory authority that is part of the land and water u within the coastal zone: man ement program to conformance State adiministrative review for consisten- with relevant enforceable policies and cy with the management program of an de. management techniques. Parties may velopment plarm projects. or land and water be bound to conformance through an use regulations. including exceptions and executive order. administrative direc- variances thereta@ proposed by any 3tate or tive or a memorandum of understand- local authority or private developer. with ing provided that: power to approve or disapprove after public M The management program auth_ notice and an opportunity for hearinCL orites provide grounds for taking (b) Under case-by-case review, States action to ensure compliance of have the power to review individual networked agencies with the program. development plans. projects or land It will be sufficient if any of the fol- and water use regulations (including lowing can act to ensure compliance: variances and exceptions thereto) pro- The State agency designated pursuant posed by any State or local authority to subsection 306(cX5) of the Act, the or private developer which have been State's Attorney Gener&L another identifled In the management program State agency. a local government, or a as being subject to review for consist- cittwn. ency with the management program M The executive order. administra- This control technique requires the tive directive or memorandum of un- greatest degree of policy specificity be- derstanding establishes conformance cause compliance with the program requirements of other State agency ac- will not require my priou actions on tivities or authorities to mans, ement the part of anyone affected by the program policies. program. Specificity also.is needed to (3) A gubernatorial executive order avoid challenges that decisions (made will be in acceptable instrument to pursuant to the management pro- meet the requirements of paragraph gram) are unfounded. arbitrary or ca- (c)(2) of this section in those States Pricious. where networked. State agency heads (c) Requirement& To use this control are directly responsible to the Gover- technique States musc nor. (1) Identify the plans. projects or (4) Where networked State agencies regulations subject to review. based on can enforce the man ement program their significance in terms of impacts policies at the time of section 306 ap- on coastal resources. potential for in- ProvL1 without first having to revise compatibility with the State's coastal 153 National Oceanic and Atmospheric Adm., Commerce § 923.45 management Program and having Act or by the Environmental Protec- greater than local significance: tion Agency (EPA) pursuant to provi- (2) Identify the State agency that sions of the CAA. and applies uniform- will conduct this review; ly in all areas of the country. The (3) Include the criteria by which second category of requirements is identified plans, projects and regula- based on the nature of air quality tions will be approved or disapproved; problems that exist or are forecast in (4) Have the power to approve or dis- coastal areas, in locations where emis- approve identifed plans, projects or sion sources may affect air quality in regulations that are inconsitent with coastal areas. and in other areas of a the management program, or the State. The majority of the second cat- power to seek court review thereof; egory of requirements will be included and in the State Implementation Plans (5) Provide public notice of reviews (SIPs) required by the Clean Air Act. and the opportunity for public hearing prior to rendering a decision, on each TABLE--CLEAN AIR ACT REQUIREMENTS case-by-case review. 923.45 Air and water pollution control requirements. Uniform, nationwide require- Nonuniform, nationwide re- (a) Statutory Citation, Subsection ments. quirements (SIPs) 307(f); National ambient air quality New source review. Notwithstanding any other provision of standards. Motor vehicle emission Emissions or air quality standards (except where standards more stringent this title, nothing in this title shall in any States have been granted than Federal standaerds. way affect any requirement (1) established a waver by EPA). by the Federal Water Pollution Act as New source performance Prevention of significant de- or (2) established by the Federal Govern- Standards tertoration. ment or any state or local government pur- National emissions standards Attainment and maintanence suant to such Acts. Such requirements shall for hazardous air polluants. of national ambiemt air quality standards. Other at- be incorporated in any program developed tainment or maintenance pursuant to this title and shall be the water measures such as trans- pollution control and air pollution control portation control measures. requirements applicable to such program. (b) General Comments. (1) Incorpo- (3) Water quality standards am es- ration of the air and water quality re- tablished by EPA promulgation or ap- quirements pursuant to the Clean proval of State standards, taking into Water Act, as amended (CWA) and consideration public water supplies, Clean Air Act (CAA), as amended, Protection and propagation of fish, should involve their consideration shellfish and wildlife, recreation, agri- during program development, especial- culture, industry and navigation, EPA ly with respect to use determinations itself develops standards on effluent and designation of areas for special limitations, new source preformance management. In addition, this incor- standards, pre-treatment standards poration will prove to be more mean- and toxic pollutant discharge stand- ingful if close coordination and work- ards. ing relationships between the State (c) Requirements. (1) States must in- agency and the air and water quality corporate into their program, by refer- agencies are developed and maintained ence or otherwise, requirements estab- throughout the program development lished pursuant to the Clean Water process and after program approval. Act (CWA), as amended, and the (2) Following is a table of the most Clean Air Act (CAA) as amended. Important Clean Air Act requirements. (2) It more stringent standards are These requirements are categorized as developed: by a State or locality pursu- either uniform, nationwide require- ant to the CWA or CAA, and where ments or non-uniform requirements such standards can be enforced under applicable to a specific State or local State authorities, they must be incor- area. The first cateogry of require- porated, by reference or otherwise, ments is established in the Clean Air into the State's managemen program 54 § 923.46 15 CFR Ch. IX (1-1-93 Edifion) 1923.46 Organizational structure. (2) This entity must have the fiscal (a) Statutory Citation. Subsection and legal capability to accept and ad- 305(b)(6): minister grant funds, to make con- The management program for each coast- tracts or other arrangements (such as Passthrough grants) with participating &I state shall Include A description of agencies for the purpose of carrying the o structure proposed to im- out specific agement tasks and to plement such management Program Lnclud- account for the expenditure of the lin- ing the responsibilities and interrelation- ships of local. areawide. state regional and Plementation funds of my recipient of interstate agencies In the management proc- such monies. and em (3) This entity must have the admin- Subsection 306(cX6): istmtive capability to monitor and evaluate the management of the Prior to grant approval of management State's coastal resources by the vari- progTUM submitted by a coastal state, the ous agencies and/or local governments Secretary shall find that 4 0 0 the State is with specified responsibilities under organized to implement the management the anagement program (irrespec. program required under paragraph (1) of tive of whether such entities receive this subsection. section 306 funds); to make Periodic (b) The main purpose of this re- reports to OC2W, the Governor. or quirement is to provide a clear under- the State legislature, as appropriate, standing of the entities that have re- regarding the performance of all agen- sponsibility for administering various cies involved in the program The aspects of the management program entity must be capable of presenting and the interrelationship of these en- evidence of adherence to the manage- tities. ment program or Justification for devi- (c) Requirement& (1) States must de- ation as part of the review of State scribe the organizational structure performance required by section 312 that will be used to implement and ad- of the Act. minister the management program in- (c) General comment.L (1) The 306 cluding a discussion of those State and agency designated is designed to estab. other agencies, including local govern. lish a single point of accountability for ments, that will have responsibility for prudent use of administrative funds in administering. enforcing and/or moni. the furtherance of the madagement toring those authorities or techniques and for monitoring of management ac- required pursuant to the following tivities. l3esignation does not imply subsections of the Act: 306(c) (B);. that this single agency need be a 306(c)(7): 306(d) (1) and (2): 306(e) (1) d4super agency" or the principal imple- and (2) and 307(f) mentation vehicle. -It is however, the (2) States must describe the relation- focal point for proper ariminl1tration ship of these administering agencies to and evaluation of the State's program the State agency designated pursuant and the ent4ty to which OCZM will to subsection 306(cX5) of the Act. look when monitoring and reevaluat- ing a State's program during program § 923.47 Designated State agency. implementation. (a) Statutory Citation. Subsection (2) The requirements for the single 306(cX5): designated agency contained herein Prior to granting approval of a manage- need not be viewed as confining or ment program submitted by a coastal state. otherwise'limiting the role and respon- the Secretary &hall find that ... The gibilities which may be assigned to this Governor of the state has designated a agency. It In up to the State to decide single agency to receive and administer the in what numner and to wh" extent grants for Implementing the management the design ted State agency will be in- program required under paragraph (1) of volved in actual prograln implement&- this section. tion or enforcement. In determining (b) RequirementL-Q) The Governor the extent to which this agency must designate a single State enUty to should be Involved In program imple- receive and administer section 306 mentation. or enforcement. specific granta. factors should be conAidered. such 155 National Oceanic and Atmospheric Adm., Commerce § 923.50 the manner in which local and region- al zone for this and succeeding generations. al authorities are involved in program (b) to encourage and assist the states to ex- implementation, the administrative ercise effectively their responsibilities in the structure of the State, the authorities coastal zone through the development and to be relied upon and the agencies ad- implementation of management programs ministering such authorities. Because to achieve wise use of the land and water re- the designated State agency may be sources of the coastal zone giving full con- viewed as the best vehicle for increas- sideration to ecological, cultural, historic, and esthetic values as well as to needs for ing the unity and efficiency of a man- economic development,(c) for all Federal agement program, the State may want agencies engaged in programs affecting the to consider the following in arriving at coastal zone to cooperate and participate a designation: with state and local governments and re- (i) Whether the designated State gional agencies In effectuating the purposes entity has a legislative mandate to co- of this title, and (d) to encourage the par- ticipation of the public, of Federal state ordinate other State or local pro- and local governments and of regional agen- grams, plans and/or policies within cies in the development of coastal zone man- the coastal zone; agement programs. With respect to imple- (ii) To what extent linkages already mentation of such management programs. it exist between the entity, other agen- is the national policy to encourage coopera- cies, and local governments; tion among the various state and regional (iii) To what extent management or agencies including establishment of inter- regulatory authorities affecting the state and regional agreements, cooperative coastal zone presently are adminis- procedures, and joint, action particularly re- tered by the agency: and garding environmental problems. (iv) Whether the agency is equipped (b) Coordination with governmental to handle monitoring, evaluation and agencies having interests and responsi- enforcement responsibilities. bilities affecting the coastal zone, and involvement Of interest groups as well § 923.48 Documentation. as the general public is essential to the (a) Requirement. Documentation in development and administration of the form of a transmittal letter signed State coastal management programs. by the Governor, accompanying the The coordination requirements of this management program submittal. is re- subpart are intended to achieve a quired to the effect that the Gover- proper balancing of diverse interests nor in the coastal zone. The policies of sec- (1) Has reviewed and approved as tion 303 of the Act require that there State policy, the management pro- be a balancing of varying. sometimes gram, and any changes thereto, sub- conflicting interests. including: mitted for the approval of the Assist- (1) The preservation, protection, de- ant Administrator. velopment and, where possible, the (2) Has designated a single State restoration or enhancement of coastal agency to receive and administer im- resources. plementation grants: (2) The achievement of wise use of (3) Attests to the fact that the State coastal land and water resources with has the authorities necessary to imple. full consideration for ecological, cul- ment the management program; and tural, historic, and esthetic values and (4) Attests to the fact that the State needs for economic development; and is organized to implement the manage- (3) The involvement of the public, of ment program. Federal, State and local governments and of regional agencies in the devel- Subpart F--Coordination, Public opment and implementation of coastal Involvement and National Interest management programs. 923.50 General. (c) In order to be meaningful, coordi- nation with and participation by vari- (a) Statutory Citation. Section 303: ous units and levels of government in- The Cogress finds and declares that it is cluding regional commissions, interest the national policy (a) to preserve, protect, groups, and the general public should develop, and, where possible, to restore or begin early in the process of program enhance the resources of the Nation's coast- development and should continue 156 § 9=51 15 CFR Ch. IX (1-1-93 Edition) throughout on a timely basis to assure those of subsections 307 (c) and (d) es- that such efforts will result in sub- tablish reciprocal State-Federal rela. stantive inputs into a State's manage- tionships. In exchange for providing ment Program. State efforts should be relevant Federal agencies with the op- devoted not only to obtaining informa- portunity for full participation during tion necessary for developing the man- program development and for ade- agement program but also to obtaining quately considering the views of such reactions and recomrn ridations re- agencies. States can effectuate the garding the content of the manage- Federal consistency provisions of sub. ment program and to responding to sections 307 (c) and (d) of the Act once concerns by interested parties. The re- their programs are approved. (See 15 quirements for intergovernmental co- CPR part 930 for a full discussion of operation and public participation the Federal consistency provisions of continue after program approval. the Act.) (d) This subpart deals with require- W In addition to the consideration ments for coord1nation with govern- of relevant Federal agency views re- mental entities. Interest groups and quired during program development, the general public to assure that their Federal agencies have the opportunity interests are fully expressed and con- to provide further comment during sidered during the program develop- the program review and approval proc- ment process and that procedures are ess. (See subpart H for details on this created to insure continued consider- process.) Moreover. in the event of a ation of their views during program serious disagreement between a rele- implementation. In addition. this sub- vant Federal agency and designated put deals with mediation Procedures State agency during program develop- for serious disagreements between ment or during program implement&- States and Federal agencies that occur tion. the mediation provisions of sub- during program development and im- section 307(h) of the Act are avallable. plementation. This subpart addresses (See 1923.54 for details on mediation.) the requirements of the following sub- (d) RequirementL In order to ad- sections of the Act: 306(c)(D--Oppor, dress that portion of subsection tunity for Full Participation: 306(c)(1) of the Act that deals with 306(c)(2)(A)-Plan Coordination; Federal agency. participation. each 306(c)(2)(B)--Continued State-Lacal State must: Consultation: 306(c)(3)-PubUc Hear- (1) Contact each relevant Federal ing3; 306(c)(W-Consideration of the Agency listed in I 923.2(d) and such National Interest in Facilities; 307(b)-- other Federal agencies as may be rele- Federal Consultation: and 307(h)-Me- vant@ owing to a State's particular cir- diation. cumstances, early in the development § 923.51 Federal-State consultatiom of Its management program. The Pur- (a) statutory citations, Subsection pose of such contact Is to develop 306(c)(1): mutual arrangements or Understand- ings regarding that &gencra participa- Prior to granting approval of a manage- tion during program development; ment program submitted by a coastal state. (2) Provide for Federal agency Input the Secretary shall find that The Sta has on a timely basis as the Program is de" developed and adopted a management pro- veloped. Such input shall be related gram for its coastal zone * * * with the op* both to information required to devel. portunity for full participation by relevant Federal agencies. op the management program and to evaluation of and recommendations Subsection 307(b): concerning various elements of the The Secretary shall not approve the man- M"nagelneut PrOgrs= agement program submitted by a Stale pru- (3) solicit statements from the head Silent to Section 306 unless the views of Ped- of Federal agencies Identified irr Table erLl agencies principally affected by such 1 of I 923.52(cX D an to their interPr46- program have been adequately considered. tation of the national Interest in the (b) The requirements of subsections Plannin for and atting of facilities 306(cXD and 307(b) of the Act and which are more than local in nature; 157 National Oceanic and Atmospheric Adm., Commerce § 923.53 (4) Summarize the nature, frequent- given such considerations to any applicable cy: and timing of contacts with rele- interstate energy plan or program. vant Federal agencies; (b) The Primary Purpose of this re- (5) Evaluate Federal comments re- quirement is to assure adequate con- ceived during the program develop- sideration by States of the national in- ment process and, where appropriate terest involved In the planning for and lit the opinion of the State, accommo- siting of facilities (which are necessary date the substance of pertinent com- to meet other than local require- ments in the management program. ments) during (1) the development of States must consider and evaluate rel- the State's management program. (2) evant Federal agency views or com- the review and approval of the pro- ments about the following: gram by the Assistant Administrator, (i) Management of coastal resources and (3) the implementation of the pro- for preservation, conservation, devel- gram as such facilities are proposed. opment, enhancement or restoration (c) Requirements. States must: purposes; (1) Describe the national interest in (ii) Statements of the national, Inter- the Planning for and siting of facilities est in the planning for or siting of fa- considered during program develop- cilities, which are more than local In ment. nature; (iii) Uses which are subJect to the (2) Indicate the sources relied upon management program; for a description of the national inter. (iv) Areas which are of particular est in the planning for and siting of concern to the management Program; the facilities. (v) Boundary determinations; (3) Indicate how and where the con- (vi) Shorefront access and protecting sideration of the national Interest is planning, energy facility planning and reflected in the substance of the man- erosion planning processes; and agement program. In the case of (vii) Federally developed or assisted energy facilities in which there is a na- Plans that must be coordinated with tional interest, the program must indi- the management program pursuant to cate the consideration given my Inter- subsection 306(c)(2)(A) of the Act. state energy plans or Programs, devel- (6) Indicate the nature of major oped pursuant to section 309 of the comments by Federal agencies provid- Act, which are applicable to or affect a ed during program development State's coastal zone. (either by including copies of com- (4) Describe the process for contin- ments or by summarizing comments) ued consideration of the national in- and discuss any major differences or terest in the planning for and siting of conflicts between the management facilities during program implementa- program and Federal views that have tion, including a clear and detailed de- not been resolved at the time of Pro- scription of the administrative proce- gram submission. dures and decisions points where such interest will be considered. 923.52 Consideration of the national In- terest in facilities. § 923.53 Federal consistency procedures. (a) Statutory Citation, Subsection (a) Requirements. States shall in- 306(c)(8): clude in their management program Prior to granting approval of a manage- submission, as part of the body of the ment program submitted by a coastal state submission an appendix or an attach- the Secretary shall find that *** The man- ment, the procedures they will use to agement program provides for adequate implement the Federal consistency re- consideration of the national interest in- quirements of subsections 307 (c) and volved in planning for, and In the sitting of, (d) of the Act, At a minimum, the fol- facilities (including energy facilities In, or lowing shall be included: which significantly affect, such states's (1) An indication of whether the coastal zone) which are necessary to meet state agency designated pursuant to requirements which are other than local in subsection 306(c)(5) of the Act or a nature. In the case of such energy facilitie, single other state agency will handle the Secretary shall find that the state has 158 § 923-S4 15 CFR Ch. IX (1-1-93 Edition) consistency review (see 15 CPR implementation of a management pro- 930.18); gram. In certain cases. mediation by (2) A list of Federal license and the Secretary or his/her designee, permit activities that will be subject to with the assistance of the Executive review (see 15 CPR 930.53): Office of the President, may be an ap. (3) For States anticipating coastal propriate forum for conflict resolu- zone effects from Outer Continental tion. This section describes the condi- Shelf (OCS) activities, the license and tions of and processes for mediation of permit list also must include OCS serious disagreements that may arise plans which describe in detail Federal during program development or imple- license and permit activities (see 15 mentation. CPR 930.74): and (c) State-Federal differences should (4) The public notice Procedures to be addressed initially by the parties in- be used for certifications submitted volved. Whenever a serious dis-4gree- for Federal License and permit activi- ment cannot be resolved between the ties and. where appropriate. for OCS parties concerned. either party may plans (see 15 CPR 930-61 through request the informal assistance of the 930-62 and 930.78). Assistant trator in resolving (b) Beyond the minimum requiM- the disagreement. This request shall ments contained in paragraph (a) of be in writing. stating the points of fts@ this section. States have the option of agreement and the reason therefor. A including the following in their man- copy of the request shall be sent to agement programs: the other party to the disagreemenL (1) A list of Federal activities, Includ- (d) If a serious disagreement per- ing development projects, which in the sists, the Secretary or other head of a opinion of the State agency are likely relevant Federal agency, or the Gover. to significantly affect the coastal zone nor or the head of the State agency and thereby will require a Federal designated by the Governor as admin- agency consistency determination (see istratively responsible for program de- 15 CPR 930.35); and velopment (if a state still is receiving (2) A description of the types of in. section 305 program development or formation and data necessary to __- reliminary approval grants) or for the consistency of Federal license and program implementation (if a Btate is permit activities and. where appropri- receiving section 306 program imple- ate. those described in detail in OCS mentation grants) may notify the sec- plans (see 15 CPR 930.56 and 930.75). retaxy in writing of the existence of a § 923.54 Mediation. serious disagreement. and may request that the Secretary seek to mediate the (a) Statutory Citation. Subsection serious disagreement. A copy of the 307(h): written request must be sent to the In the case of serious dim@ent be- ageny with which the requesting tween any Flederal agency and a coastal agency disagrees and to the Assistant State: tor. (1) in the development or the initial im- (e) Within 15 days following receipt plementation of a management program of a request for mediation. the dis- under section 305; or agreeing agency shall transmit a writ, (3) in the administration of a -n- ement ten response to the Secretary, the program approved under section 306; the agency requesting mediation and to Secretary, with the cooperation of the Exec- utive Office of the President. shall seek to the Assistant Administrator indicating mediate the differences Involved In such dis- whether it wishes to participate in the agreement. The process of such mediation mediation proces& If the disagreeing zhAlL with respect to any Igo !ment de- agency declines the offer to enter into -scribed in paragraph (3). Include public mediation efforts, the basis for refusal hearings which shall be conducted In the must be Indicated. Upon receipt of a local area concerned- refusal to participate in mediation ef-; (b) The Act provides for the media- forts. the SecretiLry othall seek to re- tion of "serious disagreements" be- solve the basis for refusal and per- tween any Federal agency and a coast- suade the ciisagreeing agency to recon- al State during the development and sider its decision and enter into media- 159 National Oc*anic and Atmosphoric Adm., Comm*rco § 923-S4 tion efforts. The Secretary will not be excluded at the discretion of the provide mediation assistance unless all hearing officer. In the event of such parties to the serious disagreement exclusion. the party may provide the agree to participate. hearing officer with a written submis. (f) In the case of a serious disagree- sion of the proposed oral presentgtion. ment that occurs during Program de- Hearings will be recorded and the velopment, if all parties agree to medi- hearing officer shall provide tran. ation. the Secretary shall schedule a scripta and copies of written Informa. mediation conference to be attended tion offered at the hearing to the Fed. by representatives from the Office of eral and State agency Parties. The the Secretary. and the disagreeing public may inspect and copy the tr&n- Federal and State agencies. The Secre- scripts and written information pro. tary shall provide the parties at least vided to these agencies. Following the lo days notice of the time and place close of the hearing. the hearing offi- set for the mediation conference. cer shall transmit the hearing record Notice also shall be Placed in the F4M@- to the Secretary. Upon receipt of the =AL RzrisT= to allow other parties an opportunity to make known to the hearing record. the Secretary shall Secretary In writing their interest in schedule a mediation conference to be the disagreement. attended by representatives from the (g) If the mediation efforts do not Office of the Secretary, the disagree. resolve the dUagreement. the Assist- Ing. Federal and State agencies, and ant Administrator shall determine other interested parties whose partici. whether inclusion in the management pation is deemed necessary by the Sec- program of the State agency's position retary. The Secretary shall provide in the disgreement affects the Assist- the parties at least 10 days notice of ant Administratoes ability to approve the time and Place set for the media- the State's management Program The tion conference. Assistant Administrator sball commu- (1) Secretarial mediation efforts nicate his/her determination in writ- shall last only so long as the parties ing. with the reason(s) therefor, the agree to participate. The Secretary parties to the disagreement. shall confer with the Executive Office . (h) In the case of a serious disagree- of the President. as necessary, during ment that occurs during Program izn- the mediation process. plementation. if the parties agree to (j) Mediation shall terrainate: (1) At the mediation process, the Secretary say time the parties agree to a resolu- shall appoint a hearing officer who tion of the serious disagreement. (2) if shall schedule a hearing in the local one of the parties withdraws from me- area concerned. The hearing officer diation. (3) In the event thd parties shall give the parties at least 30 days notice of the time and place set'for the fail to resch a resolution of the serious hearing. Notice of the hearing also disagreement within 15 days following shall be placed in the IP=zRAL Rzcvi@- _1143,ecretarial. mediation efforts, and the Tm At the time public notice is pm parties do not agree to extend media- videcL the Federal and State agencies tion beyond that period. or (4) for shall provide the public convenient other good cause. access to public data and information (k) The availability of the mediation related to the serious disagreement. services provided in this section Is not Hearing shall be Informal and shall be intended expressly or implicitly th conducted by the hearing officerwith limit the parties* use of alternate the objective of securing. in a timely forums to resolve disputes. Specifical- fashion. information related to the ly. judicial review where otherwise disagreement. The Federal and'State available by law ma be sought by any agencies, as well as other Interested party to a serious disagreement with- parties, may offer information at the out first havine exhausted the media- hearing subject to the hearing offi- tion process provided herein. cer's supervision as to the extent and manner of presentation. Unduly long 0 or repetitious orld vresent&tlOns may 160 § 923-55 15 CFR Ch. IX (1-1-93 EdMon) 9923M Full participation by State and applicable to areas within the coastal zone local governments. interested parties. existing on January I of the year in which and the general public. the state's management Program in submit- ted to the Secretary. which plam have been (a) Statutory Citation, Subsection developed by a local government. and 306(cXD: areswide agency designated pursuant to reg- Prior to granting approval of a manage- ulatlons established under section 204 of the ment program submitted by & coastal s"te. Demonstration Cities and Metropolitan De. the Secretary shall find that: the state has veloPment Act of IM. a regional agency. or developed and adopted a management pro- an Inter3taU agency 0 0 a gram for its coastal zone 0 10 0 with the op- (b) Requirement& States must insure portunity of full Participation by 0 0 0 state that the contents of their manage- Agencies. local governments. regional orga. nizations. part authorities. and other inter- ment program have been coordinated ested parties, public and private " 0 0 with locaL areawide and interstate (b) RequirementL In addition to con- plans applicable to areas within the sultation with Federal agencies. 'sub- coastal zone existing on January 1 of section 306(CXI) of the Act requires the year in which the State's mana e- that the opportunity for full ParticiPa- ment Program Is submitted to the As- tion in program development be pro- sistsint Administrator for approvaL To vided State agencies, local govern- document this coordination. the man- ments, regional commissions and or9jL_ agement program must nizations, port authorities, and other (1) Identify local governm interested public or private parties. To areawide agencies designated pursuant meet this requirement with respect to to regulations established under sec- governmental entities (other than tion 204 of the Demonstration Cities Federal) and other public or private and Metropol.1tan Development Act of parties States must: 1966, and regional or interstate agen- (1) Develops and make available gen- cies which have plans affecting the eral information regarding the pro- coastal zone in effect on January 1 of gram design. its content and its status the year in which the management throughout program development; program is submitted; (2) Provide a listing. as comprehen- (2) Ust or provide a summary of con- sive as possible. of all governmental tacts with these entities for the pur- agencies. regional organizations, port pose of coordin ting the mana ement authorities and public and private or- program with plans adopted by a gov- ganizations likely to be affected by or ernmental entity as of January 1 of to have a direct interest in the devel. the year in which the man ement opment and implementation of the program is submitted. At a minimum. management program; the following plans. affecting a State (3) Indicate the nature of major coastal zone, shall be reviewed: land comments received from interested or use plans prepared purstlant to section affected Parties, identified in Para- 701 of the Hou-sin and Urban Devel- graph (b)(2) of this section. and the opment Act of I.M. as amended; State nature of the State's response to these and areawide waste treatment facility comments; and or mana ement plans prepared pursu- (4) Hold public meeting= workshops, ant to sections 201 and 208 of the etc.. during the course of program de. Clean Water Act., as amended; plans velopment at accessible locations and and designations made pursuant to convenient times, with reasonable the Flood Insurance Act of 1974; any notice and availability of materials appUcable interstate energy plaw or programs developed pursuant to sec- § 923.S6 Plan coordination. tion 309 of the Act; regional and inter- (a) Statutory Citation. Subsection state highway pla= Plans developed 306(c)(2)(A): by Regional Action Planning Commis- Prior to granting approval to a manage- sion; and fishery management plans ment program submitted by a coastal state. developed pursuant to the Fisheries the Secretw7 shall find thu 0 0 0 Conservation and Management AcL. The State haw coorrUnated Its program (3) Identify conflicts with those with locsl. Lreswide. and interstate plana plans of a regulatory nature that are 161 National Oceanic and Atmoshperic Adm.,Commerce § 923.57 unresolved at the time of program ignated Pursuant to subsection submission and the means that can be 306(c)(5) of the Act; used to resolve these conflicts. (2) Establish a procedure whereby local governments with zoning author- § 923.57 Continuing consultation. ity are notified of State management (a) Statutory Citation. Subsection program decisions which would con- 306(c)(B): flict with any local zoning ordinance decision. Prior to granting approval to a manage- (i)"Management agency" refers to ment program submitted by a coastal state, the State agency designated by the the Secretary shall find that *** Governor pursuant to subsection The state has *** established an effec- 306(c) of the Act and to any other tive mechanism for continuing consultaion State agency responsible for imple. and coordination between the management menting a management program deci. agency designated pursuant to paragraph sion: (5) of this section and with local govern- ments, interstate agencies, regional agen- (ii) "Management program decision," cies, and areawide agencies within the coast- refers to any major, discretionary al zone to assure the full participation of policy decisions on the part of a man- such local governments and agencies in car- agement agency, such as the determi- rying out the purposes of this title; except nation of permissible land and water that the Secretary shall not find any mech- anism to be "effective" for purposes of this uses, the designation of areas or par- subparagraph unless it includes each of the ticular concern or areas for preserva- following requirements: tion or restoration. or the decision to (1) Such management agency In required. acquire Property for Public uses. Regu. before implementing my management pro- latory actions which are taken pursu- gram decision which would conflict with ant to these major decisions are not any local zoning ordinance, decision, or subject to the State-local consultation other action, to send a notice of such man- mechanisms; agement program decision to any local gov- (iii) A State management program ernment whose zoning authority Is affected decision shall be considered to be in thereby. conflict with a local zoning ordinance (ii) Any such notice shall provide that such local government may within the 30- if the decision Is contradictory to that day period commencing on the date of re- ordinance. A State management pro- ceipt of such notice, submit to the manage- gram decision that consists of addi- ment agency written comments on such tional but not contradictory require- management program decision, and any rec- ments shall not be considered to be in ommendation for alternatives thereto. If no conflict with a local zoning ordinance, action is taken during such period which decision or other action; would conflict, or interfere with such man- (iv) "Local government" refers to agement program decision unless such local government waives its rights to comment. those defined in section 304(10) of the (iii) Such management agency, if any such Act which have some form of zoning comments am submitted to it, within such authority. 30-day period, by any local government: (v) "Local zoning ordinance. decision (I) Is required to consider any such com- or other action" refers to any local ments. government land or water use action (II) is authorized, in its discretion, to hold which regulates or restricts the con- a public hearing on such comments, and struction. alteration of use of land. (III) may not take Lay action within such water or structures thereon or there- 30-day period to implement the manage- under. These actions Include zoning ment program decision, whether or not ordinances, master plans and official modified on the basis of such comments. maps. A local government has the (b) Requirements, (1) Establish a right to comment on a State manage- mechanism or mechanisms which will ment program decision when such de- provide for continuing consultation cision conflicts with the above speci- and coordination after program ap- fied actions; proval between local governments, re- (vi) Notification must be in writing gional areawide, multistate and other and must inform the local government State agencies with activities in the of its right to submit comments to the coastal zone and the State agency des- State management agency in the event 162 § 923-58 15 CFR Ch. IX (1-1-93 Edition) the proposed State management pro- Prior to granting approval of a manage- gram decision conflicts with a local ment program submitted by a coastal state. zoning ordinance, decision or other the Secretary shall find that: actiorL The effect of providing such The state has developed and adopted a nuum9ement Program for Its coastal zone notice is to stay State action to imple- after notAce ment its management decision for at least a 30-day period unless the local Subsection 306(cX3): government waives its right to com- Prior to granting approval of a matuge. ment. ment program submitted by a coastal state. (vil) "Waiver" of the right of local the Secretary shall find that ... -government to comment (thereby per- The gate has held public hearings in the mitting & State agency to proceed Im- development of the management program mediately with implementation of the Section 311: management Program decision) shall All Public hearings required under this result: title must be announced at least thirty days (A) Following State agency receipt prior to the hearing date. At the time of the of a written statement from a local announcement. all agency materials perti- government indicating that It either. nent to the hearinim including documents. (1) Waives its right to comment; or studies, and other data. must be made avail- (2) Concurs with the management able to the public for review and study. As program decision: or simil materials are subsequently devel- (3) Intends to take action which con- oped. they -thall be made available to the flicts or interferes with the manage- Public an they become available. to the ment program decision; or agency. (B) Following a public statement by M Requirement& States shall: a local government to the same effect (1) Hold a minimum of two public as paragraph M=vil)(A) of this sec- hearings during the course of program tion: or development, at least one of which will (C) Following an action by a local be on the total scope of the coastal government that conflicts or inter- management program- Hearings on feres with the management program the total management program do not decison. have to be held on the actual docu- (viii) The management program ment submitted to the Assistant Ad- shall include procedures to be followed ministrator for section 306 approval. by a management agency in consider- However, such hearing(s) must cover ing a local government's comments. the substance and content of the pro- These procedures shall include, at a posed man ement program in such a minimum. circumstances under which manner that the general public. and the agency will exercise Its discretion particularly affected parties, have a to hold -a public hearing. Where public reasonable opportunity to understand hearings will be held. the program the impacts of the management pro- must set forth notice and other hear- granL U the hearing(s) are not on the ing procedures that will be followed. management document per se, all re- Following State agency consideration quests for such document must be of local comments (when a discretion- honored and comments on the docu- ary public hearing is not held) or fol- ment received prior to submission of lowing public hearing. the manage- the document to the Assistant Admin- ment agency shall provide a written istrator must be considered; response to the affected local govern- (2) Provide a minimum of 30 days ment, affected local government. public notice of hearing dates and lo- within a reasonable period of time and cations; prior to implementation of the man- (3) Make available for pubUc review. agement program decision. on the re- at the time of public notice. all agenc:y sults of the agency's consideration of materials pertinent to the hearings; public comments. (4) Include a transcript or summary of the public heazing(s) with the I 923M Publk hearinvL State's program document or submit (a) Statutory Citations. Subsection same within thirty (30) days following 306(cXD: submittal of the procram to the As- 163 National Oceanic and AtVn0sPh*rlc Adm. Commerce § M62 SiStant Administrator. At the same the Assistant Admini trator as early as time this transcript or summary is practicable. stating the reasons for submitted to the Assistant AdMinistra- segmenting the program and request- tor. it must be made available, upon ing the Assistant Administrators ap. request, to the public. proval. Upon receipt of the Assistant Administrator's approvaL the segment Subpart G-Miscellanoaus submission shall Include: (1) A geographic area. on both sides 1923.60 General. of the coastal land/water interface; . .The purposes of this -subpart are to (2) A timetable and budget for the provide guidance on meeting the re- timely completion of the remaining quirements of subsection 306(h) of the segment(s)-, gLud Act dealing with segmented manage- (3) The man Ment boundary for ment programs and fulfilling the re- the entire coastal zone throughout the quirements for an environmental state as part of the segment submis_ impact assessment which all manage- sion. ment program submissions, whether -(4) Documentation of how the re- for a State's total coastal zone or for a quirements of subparts A through F segment, must contain. are met for the segment. 9 923.61 Segmentation. 1923.62 Envtronmental asseument. (a) Statutory Citation. Section (a) Requirement& All State manage. 306(h): ment Program submissions must con- At the discretion of the state and with the tain an envtronmental assessment at approval of the Secretary. a management the time of submission of the mim e. program May be developed and adopted in segments so that immediate attention may ment Program to OC2W for threshold be devoted to those areas within the coastal review. In accordance with the Council zone which most urgently need manage- on Environmental Quality regulations ment progr&mx Provided. that the state (FMZML RZGLsmm Vol. 43, No. 230, adequately provides for the ultimate coordi- Nov. 29, 1978) 1 1506.5(a) and (b), state nation of the various segments of the man- environmental assessments shall con- agement program into a single. unified pro' tain the following information: -gram. and that the unified program will be completed as soon as reasonably practicable. (1) A summary of the state's man- (b) This section of the Act reflects a agement program; recognition that It may be desirable (2) A brief discussion of the need for the State's participation in the Feder- for a State to develop and adopt its 8.1 progra= management - program in segments (3) A succindt description of the en- rather thin all at once because of a vironment to be affected by program relatively long coastUne,'developmen- implementation; tal pressures or public support In spe- (4) A description and discussion of cific areas, or earlier regional man ei. the major alternatives which were ment programs already developed and considered by the State in developing adopted. It is important to note, how- the coastal management Program: ever. that the ultimate objective of segmentation is completion of a man- (5) A discussion of the eavironmen- agement program for the coastal zone tal impacts of implementing the pro- of the entire State in a timely fashion.. grL= (c) A segmented management pro- (6) A Wrtim of agencies or persons gram shall not be developed solely for consulted in determining the impacts the purpose of protecttng or control- of the management program ling a single coastal*resource or-use. (b) Geneml cammmtL OC23k will (d) Segmentation is at the State's independently evaluate the State's en- option. but requires the approval of vironmental assessment and use as the Assistant Administrator. much an Possible in developing an E28 (e) Requirements. If a State intends on the management program An EIS to adopt its management Program In will be produced for. all state programs two or more segments. It shall advise submitted for 306 approval- The 164 § 923.80 15 CFR Ch. 1X (1-1-93 Edition) tion, until the Secretary approves such amendment or modification timing and review procedures for the Subsection 312(b): EIS are discussed in $923.72. The Secretary shall have the authority to terminate any financial assistance extended under section 306 and to withdraw any un- expanded portion of such assistance if (1) Subpart H - Review/Approval he determines that the state is failing to Procedures adhere to and is not justified in deviating from the program approved by the Secre- (Omitted from this booklet. tary, and (2) the state has been given notice of the proposed termination and withdrawal Alaska already has an approved and given an opportunity to present evi- program.) dence of adherence or Justification for alter- ing its program (c) For purposes of this subpart, amendments are defined as substantial changes in,or substantial changes to enforceable policies or authorities re- lated to: (1) Boundaries; (2) Uses subject to the management pragram; (3) Criteria or procedures for desig- nating or managing areas or particular Concern or areas for Preservation or restoration; and (4) Consideration of the national in- terest involved in the planning for and in the siting of,facilities which are necessary to meet requirements which are other than local in nature. § 923.81 Requests for amendments. (a) Requirement. Requests for amendments,shall be submitted to the Subpart I-Amendments to and Ter- Assistant Administrator by the Gover- mination of Appoved Manage- nor of a coastal State with an ap- ment Programs proved management program or by the head of the State agency (desig- $923.80 General. nated pursuant to section 306(cx5)) if (a) This subpart establishes the cri- the Governor has delegated this re- teria and procedures by which amend- sponsibility and such delegation is ments to approved man ement pro- part of the approved management pro- grams may be made. This subpart also gram. establishes the conditions and proce- (b) Requirements. Amendment re- dures by which adminitrative funding quests shall contain the following: may be terminated for programmatic (1) Description of the proposed reasons. change.Including specific pages and (b) Statutory Citations, Subsection text of the management program that 306(g): will be changed if the amendment is approved by the Assistant Administra- Any coastal state may amend or modify tor; the management program which It has sub- mitted and which has been approved by the 2) Explanation of why the change is Secretary under this section, pursuant to necessary and appropriate, including a the required procedures described in subsec- discussion of the following factors, as tion (c) ***(N]o grant shall be made relevant: Changes in coastal zone under this section to any coastal state after needs,problems, issues,or priorties. the date of such amendment of modifica- This discussion also shall identify 165 National Oc*cnic and Atmosph*ric Adm., commorce § 923.82 which findings. if any. made by the request, still will constitute an approv- Assistant Administrator in approving able program. the management program may need to (I) For amendments affecting man- be modified if. the amendment is aP- agement program boundaries. this will proved: involve a determination that the pro- (3) Copy of public notice(s) announc- gram if changed. will continue to in- ing the public hearing(s) on the pro- clude the following areas (as defined posed amendments: in 1923.3 1(&)) within the State's coast- (I) At least one public hearing must al zone: be held on the proposed amendment. (A) Areas the management of which Pursuant to 'section 306(cX3) Of the is necessary to control uses with direct Act: and significant impacts on coastal (Ii) Pursuant to section 311 of the waters; Act. notice of such public hearing(s) (B) 7tansitional and Intertidal areas, must be announced at least 30 days (C) Sat marshes and wetlands: prior to the hearing date. e- (D) Islands; (III) At the time of the announc M Beaches: and ment, relevant agency materials Perti- M Waters under tidal influence. nent to the hearing must be made (it) Por amendments affecting uses available to the public'. subject to the management program. (4) Sununary of the hearing(s) com- this will involve a determination that ment3: the Program if changed, will continue (I) Where OCZM is Providing Feder- to: al agency review concurrent with the (A) Identify which uses are subject notice period for the State's public to the mann ement program (see hearing. this summary of hearing(s) I 923.10(b)(1)): comments may be submitted to the As- (B) Assure that policies and authori- sistant Administrator within 60 days ties governing the management of after the hearing. es are these uses . incorporate a sufficient 01) Where hearing(s) summari submitted as a supplement to the range of considerations to address the amendment request (as in the case de- findings and Policies of sections 302 scribed in paragraph (b)(1) of this sec- and 303 of the Act (see § 923.3(b)(1) tion), the Assistant Administrator will and (2)); not take final action to approve or dis- (C) Assure that Policies and authori- approve an amendment request until ties related to use mana ement are ca- the hearing(s) summaries have been Pable of effective implementation at received and reviewed: the time of amendment approval (see (5) Documentation of -opportunities 923.10 (bX2)): and provided relevant FlederaL State, re- (D) Identify uses considered by the gional and local agencies, port authori- State to be of regional benefit and a ties and other Interested public and method (or methods) of assuring local private parties to participate in the de- regulations do not unreasonably re- velopment and approval at the State strict or exclude such uses (see level of the proposed ean ndment. I 923.12(b)). (c) RequesU for amendments should (III) Amendments affecting criteria be sumitted to the Assistant Adminis- for designating or managing areas of trator whenever possible prior to final Particular concern. this will involve a State action * to implement a major determin tion that the man ement progra= progr&M if changed. will continue to provide for. 9 923.82 Anuadment riview/approval pro- (A) Criteria for designatiow (see cedureiL I 923M(bXD): (a) Upon submission by a State of Its (B) Designation-of areas on a generic amendment request, OCZK will review or aite-specific basis (see I 923.21(bXl) the request to determine preliminarily and (2)): if: (C) Description of how the manage- (1) The management program Lf ment program addresses- and resolves changed according to the amendment the management concerns for which 166 § 923.82 15 CFR Ch. IX (1-1-93 Edition) areas are designated (see j 923.21(b)(3) (tit) Notice has been provided and a and M); and public hearing held on the proposed (D) Guidelines regarding priority of amendment (section 306(c)(1) and uses. including uses of lowest priority (c)(3); and (see I 923.21(b)(5)). Qv) The Governor or the head of the (tv) For amendments affecting crite- State agency. designated pursuant to ria for designating or managing areas section 306(cm, has reviewed and ap- for Prewmation. or restoration. this proved the proposed amendment (seo- will involve a determination that the tion 306(cX4)). manaffern nt Program. if changed, will (b) U the Assistant Administrator. as continue to provide for criteria and a preliminary matter. determines that procedures for designations that are the Lt program. if changed. for the Purposes Of Preserving or re- would no longer constitute an approv. storing areas for their conservation. able program. or If my of the proce. recreationaL ecological or esthetic dural requirements of section 306(c) of values (see I 923.22(b)). the Act have not been met., the Assist- (v) Fbr amendments affecting proce- ant r shall advise the dures for considering the national In- S In writing of the reasons why terest In particular facilities, this will the t request cannot be con- involve a determination that the man- sidered. agement Program. if changed. will con- (1) Where problems exist with re- tinue to provide for., spect to the procedural requirements, (A) A description of the national in- States may redress these and resubmit terest in the planning for and siting of Its amendment request. the facilities which is taken into ac- (2) Where problems exist with re- count by the consideration procedures spect to basic program approvability. (see I 923.52(c)(1)); States also may modify their amend- (B) The sources relied upon for such ment request to redress the deficien- consideration (see § 923.52(CX2)); cies with repect to approvability and (C) A clear and detailed description thereafter may resubmit their amend- of the administrative procedures and ment request. decisions points where this - interest (3) Where a State acts to implement will be considered (see I 923.52(c)(4)): and the t request despite the (D) In the case of energy facilities. Assistant Admin' trator's notification consideration of any applicable inter. that such amendment would render state energy, plan or program devel- the managment program unapprova- oped pursuant to section 309 of the ble. that State may be subJect to with- Act (see I 923.52(c)(3)). drawal of program approval and with- (2) The procedural requirements of drawal of administrative funding. (See section 306(c) of the Act have been 15 CPR 928.5(b).) met. These procedural requirements (c) If the Assistant Administrator. as are that: a preliminary matter. determines that (I) The State has developed the the rnimagement program. if changed. amendment with the opportunity for would still constitute an approvable full participation by relevant Flederal Program and that the procedural re- agencies. State agencies. local govern- quirements of section 306(c) of the Act ments. regional organizations. port au- have been met. the Assistant Adminis- thorities, and other interested public trator will then determine. pursuant and private parties (section 306(cXD to the National Environmental Policy of the Act): Act of 1969, as amended. whether an (it) The State has coordinated the environmental Impact statement (EIS) amendment with loc&L am-wide and is requiredL interstate plans applicable to areas (1) U an EMS is appropriate. OCZM within the coastal zone affected by the will prepare and distribute a DEIS and amendment and existing on January 1 FTIS consistent with CEQ guide"n of the year in which. the amendment and NOAA procedures. request is submitted (section M Pollowine review of comments on 306(c)(2)): the FEM the Amdatant AAministxator 167 National Oceanic and Atmospheric Adm, Commerce § 923.84 will take final action to approve or dis- 923.84 Routine program implementation. approve the amendment request. (a) Further detailing of a State's (ii) Notice of the Assistant Adminis- program that is the result of imple- trator's decision will be given in the menting provisions approved as part of FERDERAL REGISTER. If the Assistant Ad- a State's approved management pro- ministrator's decision is to approve the gram that does not result in the type amendment, the notice also shall indi- of action described in 923.80(c), will cate that Federal consistency applies be considered routine program imple- as of the time of the Assistant Admin- mentation. Routine implementation is istrator's approval. not subject to the amendment proce- (2) If an EIS is not required pursu- dures contained in 923.81 through ant to CEQ guidelines and regulations. 923.82. It is subject to mediation provi- notice will be published in the FEDERAL sions of 923.83. REGISTER of the Assistant Administra- (b) Requirements. (1) States shall tor's intent to approve the amendment notify OCZM of routine program im- request. plementation actions in order that (i) This notice will Include the con- OCZM may review the action to tent of the proposed amendment; the ensure it does not constititute an basis for determining an EIS is not re- amendment. quired; and a specified comment (i) States have the option of notify- period of not less than 30 days. ing OCZM of routine implementation (ii) if no serious disagreement is on a case-by-case basis, periodically raised by the head of a Federal agency throughout the year, or annually. (see 923.83) during the comment (ii) In determining when and how period and after taking into account often to notify OCZM of such actions, all comments received, the Assistant States should be aware that Federal Administrator will make a final deci- consistency will apply only after the sion on whether to approve the pro- notice required by paragraph (b)(4) of posed amendment and issue notice this section has been provided. thereof in the FEDERAL REGISTER. (2) Concurrent with notifying [44 FR 18595, Mar. 28, 1979, as amended at OCZM States shall provide notice to 47 FR 21024, May 17.1982] the general public and affected par- ties, including local governments, 923.83 Mediation of amendments. other State agencies and regional of- (a) Section 307(hX2) of the Act pro- fices of relevant federal agencies of vides for mediation of "serious dis- the notification given OCZM. agreements" between a Federal agency (i) This notice shall: and a coastal State during administra- (A) Describe the nature of the rou- tion of an approved management pro- tine program implementation; gram. Accordingly mediation is avail- (B) Indicate that the State considers able to states or federal agencies when it routine program implementation a serious disagreement regarding & and has requested OCZM's concur- proposed amendment aries. rence in that determination; and (b) Mediation may be requested by a (C) Indicate that any comments on Governor or head of a State agency whether or not the action does or does designated pursuant to section no constitute routine program imple- 306(c)(5) or by the head of a relevant mentation may be submitted to 0CZM Federal agency. Mediation is a volun- within 3 weeks of the date Of issuance tary process in which the Secretary of of the notice. Commerce attempts to Mediate be- (ii) Where relevant Federal agencies tween disagreeing parties over major do not maintain regional offices, problems. notice must be provided to the head- (c) The specific mediation proce- quarters office. dures to be followed when there are (3) Within. 4 weeks of receipt of serious disagreements over amend- notice from a State, OCZM shall ments are the same as those utilized inform the State whether it concurs for serious disagreements during pro- that the actions constitutes routine gram implementation. (See 923.54). program implemantation. Failure to 168 § 923.90 15 CFR Ch. IX (1-1-93 Edition) notify a State in writing within 4 (b) Grants awarded to a State must weeks of receipt of notice shall be con- be expended for the development or sidered concurrence. administration, as appropriate, of a (4) Where OCZM concurs, a State management program that meets the then must provide notice of this fact requirements of the Act. to the general public and affected Par- (c) All applications for funding ties, including local governments, under section 305 or 306 of the Act, in- other State agencies and relevant Fed- cluding proposed work programs, eral agencies. funding priorities and allocations are (i) This notice shall: subject to the administrative discre- (A) Indicate the date on which the tion of the Assistant Asministrator. State received concurrence from (d) Grants shall not exceed eighty OCZM that the action constitutes rou- tine program implementation; per cent of the annual total cost of the (B) Reference the earlier notice (re- program. quired in paragraph (b)(2) of this sec- (e) For Purposes of this subpart, the term development grant means a grant tion) for a description of the content awarded pursuant to subsection 305(a) of the implementation action; and of the Act. " Administrative grant" and (C) Indicate if Federal consistency "implementation grant" are used applies as of the date of the notice Interchangeably and mean grants called for is this paragraph. awarded pursuant to subsection 306(a) (ii) Federal consistency shall not be or (h) of the Act. required until this notice has been (f) All application and preapplica- (5) Where OCZM does not concur, a tion forms are to be requested from State will be advised to submit the and submitted to: action as an amendment, subject to National Oceanic and Atmospheric Adminis- the provisions of 923.81 through tration. Office of Coastal Zone Manage- 923.82. ment, Grants and Loans Operations Staff, 3300 Whittehaven Street, NW., Washing- Subpart J- Applications for Program ton. DC 20235. Development or Implemation 921.91 State responsibility. Grants (a) Applications for program grants 923.90 General shall be submitted by the Governor of (a) The primary purpose of develop- a participating State or by the head of the State entity designated by the Governor pursuant to subsection 306(c)(5) of the Act. (b)In the case of section 305 grant, hensive coastal managment programs the application shall designate a single that can be approved by the Assistant State agency or entity to receive devel- Adminstrator. The primary purpose of implementation grants made pursuant opment grants and to be responsible to section 306 of the Act is to assist for development of the State's coastal coastal States in implementing coastal management program. The designee managment programs following their need not be that entity designated by approval. The purpose of the guide- the Governor pursuant to subsection lines in this subpart is to define the 306(c)(5)of the Act as the single procedures by which grantees apply agency to receive and administer im- for and administer grants under the plementation grants. Act. These guidelines shall be used (c)One State application will cover and interpreted in conjunction with all program activities for which funds the Office of Management and Budget under this Act and matching State Circular A-102, Administrative Re- funds are provided, irrespective of quirements for Grants-in-Aid to State whether these activities will be carried and local governments, and other out by State agencies, areawide of re- directives from the NOAA and OCZM gional agencies, local governments. or grants offices. Interstate entities. 169 National Oceanic and Atmospheric Adm., Commerce § 923.93 (d) The designated State entity is local activities or one-time projects, fiscally responsible for all expendi- again subject to adequate State over- tures made under the grant, including view, then a proportional amount of expenditures by subgrantees and con- administrative grant funds can be allo- tractors. cated to local governments. (3) Areawide agencies. Should the 923.92 Allocation. State wish to allocate a portion of its (a) Statutory Citations. Subsections program development grant to an 305(g): areawide/regional agency under the With the approval of the Secretary. any provisions of subsection 305(g) of the coastal state may allocate to any local gov- Act, and in the absent of State law to ernment, to any areawide agency designated the contrary, preference shall be given under section 204 of the Demonstration to those agencies recognized c desig- Cities and Metropolitan Development Act of nated as areawide/regional compre- 1966, to my regional agency, or to any hensive planning and development interstate agency, a portion of any grant re- agencies under the provisions of sec- ceived by it under this section for the pur- tion 204 of the Demonstration Cities pose of carrying out the provisions of this and Metropolitan Development Act of section. 1966 or Title IV of the Intergovern- Subsection 306(f): mental Cooperative Act of 1968. With the approval of the Secretary, a (4) Indian Tribes. In furtherance of state may allocate to a local government, an the policy enunciated in 923.33(b)(2), areawide agency designated under section individual tribes or groups of tribes 204 Demonstration Cities and Metropolitan may be considered regional agencies Development Act of 1966, a regional agency and may be allocated a portion of a or an interstate agency, a portion of the State's grant for the development of grant under this section for the purpose of independent tribal coastal manage- carrying out the provisions of this section: Provided that such allocation shall not re- ment programs or the implementation 1ive the state of the responsibility of ensur- of specific management projects Pro- ing that any funds so allocated are applied vided that: in furtherance of such state's approved (i) The State certifies that such management program. tribal programs or projects are com- (b) A State may allocate a portion or patible with its approved coastal man- portions of its grant to other State agement policies; and agencies, local governments, areawide (ii) On excluded tribal lands, the or regional agencies, interstate enti- State demonstrates that the tribal ties, of Indian tribes. If the work to program or project would or could di- result from such allocation(s),contrib- rectly affect the State's coastal zone. utes to the effective development or (Executive Order 12372, July 14, 1982(47 implementation of the State's manage- FR 30959), as amended April 8,1983 (48 FR ment program: 15587); sec 401. Intergovernmental Coop- (1) Local governments. Should a eration Act of 1968, as amended (31 U.S.C. State desire to allocate a portion of its 6506); sec 204 Demonstration Cities and grant to a local government, units of Metropolitan Development Act of 1966 as general-purpose local government are amended (42 U.S.C. 3334)). preferred over special-purpose units of [44 FR 18595, Mar. 28, 1979, as amended at local government. 48 FR 29136, June 24, 1983] (2) Local governments. Where a State will be relying on direct State 923.93 Geographic segments. controls as provided for in subsection (a) Application procedures for a 306(e)(1)(B) of the Act, pass-throughs grant to be awarded pursuant to sub- to local governments for local plan- section 306(h) of the Act for a geo- ning. regulatory or administrative ef- graphic segment of a State's coastal forts under a section 306 grant cannot zone are the same as those set forth in be made, unless they are subject to this subpart for a grant to administer adequate State overview and are part the approved management program of of the approved management pro- the entire coastal zone of a State. gram. Where the approved manage- (b) When a State has a program for ment program provides for specified a geographic segment of its coastal 170 § 923.94 15 CFR Ch. IX (1-1-93 Edition) zone approved pursuant to subsection ization of urban waterfront and pro- 306(h) of the Act, that portion of a tection and restoration, where possi- State's coastal zone not awarded seg- ble, of important historic, cultural and ment approval will continue to be eli- aesthetic coastal resources. gible for section 305 grants until au- (4) Improvement in the predictabil- thorization for such funds terminates. ity and efficiency of governmental de- cisionmaking especially with respect to 923.94 Eligible implementation costs. permitting. (a) Costs claimed must be beneficial (d) Implementation funding may be and necessary to the objectives of the applied to the management of desig- grant project. As used herein the nated areas of particular concern, es- terms cost and grant project pertain to pecially areas designated for preserva- both the Federal and the matching tion or restoration purposes pursuant share. Allowability of costs will be de- to section 306(c)(9) of the Act. Within termined in accordance with the provi- areas designated for the purpose of re- sions of Federal Management Circular storing or preserving their ecological (FMC) 74-4: Cost Principles Applica- or conservation values, section 306 ble to Grants and Contracts with funds may be spent for projects involv- State and Local Governments. ing expendable materials (as for exam- (b) Federal funds awarded pursuant ple, seeds to be used as a non-structur- to section 306 of the Act may not be al erosion control technique or, for an- used for land acquisition purposes and other example, materials to restore may not be used for construction pur- lighthouses designated as areas for poses except as described in paragraph restoration). All costs associated with (d) of this section. such projects may not exceed a total (c) The primary purpose for which of $50,000 per grant, except in the case implementation funds, pursuant to of a demonstration grant which may section 306 of the Act, are to be used is be negotiated with and approved by to assure effective implementation and the Assistant Administrator. In addi- administration of the management tion the following conditions must be program, including especialiy adminis- met: trative actions to carry out and en- (1) The project must be consistent force program policies, authorities and with and fulfill the objectives of a re- other management techniques. Imple- lated policy (or policies) in the States mentation activities should be related management program; to achieving substantive results in the (2) Basic program administration re- following 4 major areas which are de- quirements discussed in paragraph (c) rived from the policies and findings of of this section are provided for; sections 302 and 303 of the Act: (3) No other sources of funding are (1) Protection of significant natural readily available; and coastal resources, and areas including, (4) An explanation is provided of as appropriate, wetlands, beaches, how the area will be maintained and dunes, barrier islands, reefs and fisher- operated once preserved or restored ies. (e) Section 306 funding in support of (2) Management of coastal develop- any of these purposes, except as limit- ment to: ed in paragraph (d) of this section, (i) Prevent or mitigate low of life may be used to fund: and property in such coastal hazard (1) Personnel costs, areas as floodplains, erosion-prone (2) Supplies and overhead, areas, areas subject to subsidence or (3) Equipment (subject to the limita- saltwater intrusion; tions in paragraph (f) of this section pendent uses such an ports, fishing fa- (4)Feasibility studies and prelimi- cilities and water-dependent energy fa- nary engineering reports. A feasibility cilities; and study is defined as a document; inde- (iii) Identify environmentally accept- pendent of a particular design solution able sites for dredge spoil disposal. for a project, which presents an analy- (3) Increase in public access for rec- sis of the economic practicality of the reational purposes, including revital- project. A preliminary engineering 171 National Oceanic and Atmospheric Adm., 6mm*rce § 923.95 report is defined as a document which will not be awarded until A-55 require- presents both engineering criteria. in ments have been completed. sufficient detail to form the basis for - M States have the option of using a the preparation of final design docu- Preapplication for Federal Assistance. ments and detailed engineering cost If used, the Preapplication must be estimates. Detailed architectural draw- submitted 120 days prior to the begin- ings and engineering specifications are ning date of the requested grant The eligible costs it Preapplication shall include documen- W They are directly related to Pres- tation. signed by the Governor, desig- ervation and restoration projects dis- nating the State office, agency. or cussed in (d) of this section; entity to apply for the administer the (ii) They are for projects which are grant, not In APC's but are directly related W Costs claimed as charges to the to the State's man ement program grant project must be beneficial and and the State can provide written doc- necessary to the objectives of the umentation to OCZM that the other grant project. As used herein. the sources of funding have been secured ternm "cost" and "grant proJect" per- to complete such Project& tain to both the Federal grant and the (f) Equipment purchases by the matching share. Allowability of costs grantee of more than one tholl-gand will be determined in accordance with (1.000) dollars per item require KOAA the provisions of FMC 74-4: Cost Ftln- approval prior to purchase. Equipment ciples Applicable to Grants and Con- purchases by sub-awardees nw be ap- tracts with State and Local Govern- proved by the grantee. Such Purchases ments. Eligible implementation costs may be deemed eligible costs if the also shall be determined in accordance State: with J 923.94 of these regulations. (1) Has examined lease, rental or (d) In Put rV-Program Narrative other non-purchase alternatives and of the Form SP-424. the applicant purchase represents an equal or I r shall describe clearly and briefly the cost alternative, and activities that will be undertaken with (2) The equipment Is essential to grant funds in support of implementa- management activities that are antici- tion and administration of the Man- pated to continue for more than 1 agement program. This description year. hall include: (g) States are encouraged to ooordi- s (1) An Identification of those ele- nate administrative funding requests ments of the approved man ement with funding possibilities pursuant to program that are to be supported in sections 308, 309. 310 and 315 of the whole or in part by' the Federal and Act. When in doubt as to the approPri- the matching share. ate section of the Act under Which to request funding. States should consult (2) A clear statement of the major with OCZM. States should consult tastrit required to implement each ele- with OCZM on technical aspects of ment@ consolidating requests into a single ip- (3) For each task: pUcation. (I) Specify how it wiR be accom- plished and by whom; § 923.95 Application for initial program (it) Identify any su"wardees (other development or implementation vrants. State agencies. local government.% in- (a) The form SF-424. and an Appli- dividuals. etc.) that will be allocated cation for Federal Assistance (Non- responsibility. for carrying out all or Construction Programs) constitutes portions of'the task. and indicate the the formal application. An original estimated co6t of the sub-awards for and two (2) copies must be submitted each allocation. Identify. if anY. that 45 days prior to the desired grant be- portion of the task that Will be Mrried ginning date. The applicstion must be out under contract with private firms accompanied by evidence of compU- or individuals. and indicate the esU- anee with ELO. 12372 requirements in- mated coat of inich contrscUs);_ cluding the resolution of any problems 011) Tndicate the estimate& total raised by the proposed proJect. Grants co6L Also indicate the esUmated total 172 § 923.96 15 CFR Ch. IX (1-1-93 Edition) person-months if any, allocated to the pursuant to subsection 305(d) of the task from the applicant's staff; Act. (iv) Indicate the percent estimated (b) In evaluating whether a State is to be completed during the grant making satisfactory progress toward period. completion of an approvable manage- (4) The sum of all task costs in para- ment program which is necessary to graph (d><3) of this section should establish eligibility for subsequent equal the total estimated grant project grants. the Assistant Administrator cost. will consider. (5) Using two categories, Profession- (1) The progress made toward meet- al and Clerical. indicate the total ing Management program goals and number of personnel in each category objectives; on the applicant's staff who will be as- (2) The progress demonstrated in signed to the grant project. Also indi- completing the past yeaes work pro- cate the number assigned full time gram: and the member assigned less than (3) The cumulative Progress toward full time in the two Categories. Addi- meeting the requirements for prelimi- tionally. indicate the number of new nary or final approval Of a coastal positions created In the two categories management program: as a result of the grant project. (4) The applicability of the proposed (Executive Order 12372, July 14. 1982 (47 work program to fulfillment of the re- FR 30959). as amended April 8,1983(48 FR quirements for final approval; and 15587): sec. 401. Intergovernmental. Coop- (5) The effectiveness of mechanisms eratioqn Act of 1968 as amended (31 U.S.C. for insuring public participation and 6506); sec 204, Domonstration Cities and consultation with affected Federal. Metropolitan Development Act of 1966 as State, regional and local agencies in amended (42 U.S.C.3334)) Stat4L, regional and local agencies in [44 FR 18595. Mar.28,1979. an amended at program development. 48 FR 29136, June 24.1983] 923.97 Applications for subsequent pro- 923.96 Applications for subsequent pro- gram implementation grants. gram development grants. (a) Second and subsequent year ap- (a) Subsequent development grants plications will follow the procedures will follow the procedures set forth in set forth in 923.95 except that: 923.95. Additionally, the program (1) The Governor's document desig- design discussed in 923.95(d) shall be nating the State agency to receive and updated to: administer the grant is not required (1) Describe the anticipated unless there has been an approved and content of the of the management rpo- gram, including the major issues the (2) Copies of the approved manage- program will address, and the politics ment program and approved changes and management techniques that will are not required. be proposed to address these issues; No award for continued funding (2) Describe how the past year's pursuant to section 306 will be made work contributed to the accomplish- until an evaluation of the State's pro- ment of the overall program design gram pursuant to section 312 of the and specifically to meeting the re- Act has been conducted and findings quirements for program approval: have been made by the Assistant Ad- (3) Examine and assess the need. If ministor. any, to modify the overall program design or the program's goals and ob- 923.98 Applications for preliminary ap- jectives or both in view of the above or proval grants. any emerging opportunities or prob- (a) The primary purposes of prelimi- lems; and nary approval grants are to assist a (4) Indicate when the State will State in insuring ultimate implemen- submit a management program to the tation of a fully developed program Asaistant Administrator for review and design and to provide for initial impleme- final approval pursuant to section 306 mentation of approved management of the Act or for preliminary approval elements. The purpose of these guide- 173 Nationai Oceanic and AtmosPhoric Adm., Commerce § 923. 100 lines is to define the procedures by and indicate the estimated cost of which grantees apply for and adminis- such contract(s)- an , d ter grants under the Act. (v) For each task. Indicate the esti- (b) The following represent allow- mated total cost. ALSO. indicate the es- able subsection 305(d) costs: timated total PersOn-MOnths, of effoM (1) Resolving section 306 deficien- if any, allocated to the task from the cies: applicant's staff. (2) Implementing those portions of a (2) The sum of all task cost in the State's coastal management Program above paragraph Should equal the for which sufficient authorities and total estimated grant project c0sL organizational structures are in place; (3) Using two categories. profesdon. (3) Updating coastal management al and ClericaL indicate the total programs if this updating would be an number of Personnel In each category allowable cost after section 306 ap- on the applicant's staff that will be as. proval. signed to the grant projecL Also indi- (c) The Form SP-424 and the Appli- cate the number assigned full time cation for Federal Assistance (Non- and the number assigned less than full Construction Programs), constitutes time In the two categories. Additional- the formal application. An original ly, indicate the number of new posi- and two (2) copies must be submitted -tions created In the two categories as-a at least 45 days prior to the desired result of the grant proJecL grant beginning date. The application (Executive Order 1237Z July 14. 1982 (47 must be accompanied by evidence of PR 30959). as amended April a. 1983 (48 PR Me compliance with E.O. 12372 require- 15587); @ 401. Intergovernmental Coop. ments including the resolution of any eration Act of 1%8. as amended (31 U.&M problems raised by the proposed 6506); 3ec 204. Demonstration Cities and project. A grant will not be awarded Metropolitan Development Act of 1M as until E.O. 12372 requirements have amended (42 U.&C. 3334)). been completed. (44 FR 19595, Mar. 28, 1979. as amended at (d) In Part M Program Narrative of 48 FR 29136. June 24.19831 the Form SP-424, the applicant should 9 923.99 Approval of applications. respond to the following requirements., (a) The application for a grant by (1) Set forth a work program de- scribing the activities to be undertak- any Coastal State which complies with en during the grant period. This work the policies and requirements of the program shall include: Act and these guidelines shall be ap- (1) A precise description of each proved by the Assistant Administrator. major task to be undertaken to resolve assuming available funding. section 306 deficiencies, and a specific (b) Should an application be found timetable for remedying these defi- deficient, the Assistant Administrator ciencies; will notify the applicant in detail of (ii) A precise description of imple- any deficiency when an application mentation activities for approved man- fails to conform to the requirements agement components. including a dem. of the Act or these regulations. Con- onstration that these implementation ferences may be held on these mat- funds will not be applied outside the ters. Corrections or adjustments to the approval coastal m" ement bound- application will provide the basis for aries; resubmittal of the application for fur- (iii) A precise description of any ther consideration and review. other tasks necessary for and allow- (c) The Assistant Administrator able under subsection 305(d); may. upon finding of e cir- Uv) For each task. identify my relating to applications for subawardees that will be allocated re- assistance, waive appropriate adynin sponsibility for carrying out all or por- traUve requirements contained in this- tions of the tasirs and indicate the es- subpart. timated cost of the subaward for each 192&100 Grant MtIL allocation. Identif y. if any. that por- tion of the task that will be carried (a) Actions which require an amend- 0 out under contract with consu.1tants ment to a grant award such as a re- 174 § 923.101 15 CFqR Ch. IX (1-1-93 Edition) quest for additional Federal funds, sidence and saltwater intrusion and by the changes in the amount of the non- destruction of natural protective features Federal share. changes in the ap. such as beaches, dunes. wetlands. and bar- proved Project budget as specified In rier islands. Attachment K of OMB Circular A- (C) Priority consideration being given to 102, or extension of the grant period coastal dependent uses and orderly process- must be submitted to the Assistant tional defense, energy, fisheries develop. Administrator and approved In writing ment, recreation, ports and transportation. by him/her and the NOAA Grants Of- awl the location. to the maximum extent ficer prior to initiation of the contem- practicable of new commercial and industri- plated change. Such requests should al developments in or adjacent to areas be submitted at least 30 days prior to where such development already exists. the Proposed effective date of the (D) Public access to the coasts for recrea- change and. if appropriate. accompa- tion purposes nied by evidence of compliance with (E) Assistance In the redevelopment of de- A-95 requirements. teriorating urban waterfronts and ports. (b) NOAA shall acknowledge receipt sensitive preservation and restoration of his- toric. cultural, and esthetic coastal features. of the grantee's request within the ten (F) The coordination and simplification of (10) working days of receipt of the cor- procedures in order to ensure expedited gov- respondence. This notification shall ernmental decisionmaking for the manage- indicate NOAA's decision regarding ment of coastal resources. the request; or indicate a time-frame (G) Continued consultation and coordina- within which a decision will be made. tion with, and the giving of adequate coqnsid, eration to the views of. affected Federal agencies. Subpart K - Improving Coastal Zone (H) The giving of timely and effective no- Management tification of and opportunites for public Authoritt: Secs. 303 and 306. Coastal and local government participation in coast- Zone Management Act and sec 5. Coastal al management decisionmaking and Zone Management Improvement Act of (I) Assistance to support comprehensive 1980. planning, conservation, and management Source: 47 FR 21019 May 17, 1982 unless for living marine resources including plan- otherwise noted. aqauaculture facilities within the coastal zone. 923.101 General. (2) Section 306(a). (a) Statutory citations: (1) Section 303(2) The Secretary may make grants to any coastal State for not more than 80 per The Congress finds and declares that it is centum of the costs of administering such the national policy -- State's management program if the Secre- tary -- (2) To encourage and asssist the States to (3) Finds. If such prgram has been ad- exercise effectively their responsibilities in ministered with financial assistance under the coastal zone through the development this section for at least one year, that the and implemenation of management pro- coastal State will expend an increasing por- grams to achieve wise use of the land and tion of each grant received under this sec- water resources of the coastal zone, giving tion (but not more than 30 per centum of full consideration to ecological cultural his- the grant unless the State chooses to toric, and esthetic values as well as to the expend a higher percentage) on activities needs for economic development which pro- that will result in achieving the coastal man- grams should at least provide for - agement objectives specified in Section (A) The protection of natural resources 303(2XA)-(I). including wetlands, floodplains, estuaries (b) States whose approved programs beaches, dunes, barrier islands, coral reefs have been administered for at least and fish and their habitat, within the coast- one year with section 306 funds must al zone. expend an "increasing proportion" of (B) The management of coastal develop- each subsequent section 306 financial ment to minimize the loss of life and proper- assistance award on activities that will ty caused by improper development in result in "significant improvement" in flood-prone, storm surge, geological hazard achieving certain national coastal and erosion-prone areas and in areas of sub- 175 National Oc*anic and Atmosph*ric Adm., Commorce § 923.103 management objectives. This subpart management requirements contained defines -significant improvement," de- in the approved program scribes the process for determining (ii) Streamlined intergovernmental which significant improvement activi. coordination and public partteipation 'ties a State may perform establishes mechanism . the formula for determining "increas- (5) The following to the extent they ing proportion." and sets forth the exceed what 13 required by an ap- consequences of failure to pursue sig- proved program. nificant Improvements. W Development of natural resource § 923.102 Significant improvement de- information critical to rnwidn in- fined. formed coastal management decisions. (U) Development and Unplementa. (a) A "significant improvement" is tion of State and local strategies, an accomplishment that addresses any project.% and management programs of the objectives of section 303(2XA) for coastal resources and uses. through (D by. (1) Substantially expanding the § 923-103 Selection and approval of activi- scope of the approved program (such ties leading to significant improve. expansion of program scope includes. menta. but is not limited to an amendment or routine program implementation). or (a) The State will take the initiative (2) Substantially strengthening the in proposing significant improvement ability of the State to implement or activities. The State's financial assist. enforce the approved program ance application will describe the man. agement activities it will Perform and (b) Significant improvements in- the significant improvements it ex- clude, but are not limited to, the fol. pects to achieve over the course of the lowing types of accomplishments: next financial assistance award period. (1) The adoption of new enforceable This description will clearly identify policies for coastal decistonmaking of specific schedules and expected Prod- the conversion of nonenforceable (en- uctjL .couragement) policies to enforceable (b) Based on the results of the con- policies. The State (or local govern- tinuing review described in 15 CFR ment) may adopt new policies by legis- Put 928, the Assistant tor lation, rulernalting. memoranda of un. will determine in consultation with derstanding, executive order or other the State if the man ement activities legally sufficient means. proposed by the State tire likely to (2) The adoption of refined enforce- result in significant, improvement in able policies for coastal decisionma-k- achieving the coastal' ent ob- ing including: Jectives of section 303(2XA) through W More specific standards for the (I). implementation of existing statutes. (c) The States and the AssistantAd- (U) Site specific management plans ministrator will negotiate an agree. for areas designated a3 Areas of Par. ment at the beginning of each finan- ticular Concern and Areas for Preser- cial assistance award period establish- vation or Restoration or other areas ing: (1) The specific sigmificant im. beyond what is required by the. ap- provement objectives to be achieved proved program. during the financial assistance award (3) The extension of existing en- period. (2) the Federal funds to be de- forceable coastal mana ement Policies voted to each task. and (3) the basis to new geographic areas beyond what for assessing the State's progress in ac, is required by the approved program complishing each significant improve- (4) Development of more effective or ment ta&IL The agreement will be in- efficient administration of the ap- cluded as part of the financial assist. proved management program includ- ance award. There is no requirement ing. that the State address each of the (i) Improved capability. of the coast- nine signi IcLnt improvement obJec- management agencies to implement tives within in individual financial as- State coastal regulatory. planning. and sistance award Period- 0 ILI 176 § 923.104 15 CFR Ch. IX (1-1-93 Edition) (d) if unforeseen circumstances arise § 923.105 Failure to agree to pursue signif- that affect the accomplishment of any icant improvement. significant improvement task. the (a) If a State chooses not to pursue State must provide the Assistant Ad- significant improvements In accord- ministrator with prompt notice and ance with this subpart. the Secretary negotiate with the Assistant Adminis- must withhold all financial assistance trator any necessary changes to the under section 306. However, a decision schedule and products before the not to award section 306 funds does scheduled completion dates. The As- not necessarily require withdrawal of sistant Administrattor shall provide the program approval. A State may con- State agency with a schedule for nego- tinue to implement and enforce its ap. tiation and a time certain when a deci- proved program with State funds. sion will be available to the State Under these circumstances, a State agency. Any such changes will be win still be able to exercise its Federal, made part of the agreement included consistency review rights under sec- in the financial assistance award. tion 307 and will remain eligible for (e) Significant improvements need CEIP funds if it meets all other eligi- not be achieved within the period Of bility requirements. one financial assistance award if there (b) A discussion of the procedures by Is specific reason to identity a longer which the Assistant Administrator will period. evaluate whether a State has failed to 923.104 Establishing the "Increasing pro- make significant improvements is con- portion". tained in 15 CFR Part 928, Review of Performance of State Coastal Manage- (a) During the first year a State is ment and Coastal Energy Impact Pro. required to make significant improve- grams. ments (its second 306 award). it must agree to expend 20 percent of the Fed- eral share of its upcoming section 306 PART 924 - MONITOR MARINE financial assistance award on activities SANCTUARY designed to lead to significant im- provements. Thereafter, the State Sec. must agree to constant incremental in- 924.1 Authority. creases of at least one percent in each 924.2 Description of the Sanctuary succeeding year. The amount to be 924.3 Activities prohibited within the Sanc- spent on significant improvements will uary. be determined by multiplying the aqp- 924.4 Penalties for commission of prohibit- plicable percentage by the amount of ed acts. Federal funds actually received. 924.5 Permitted activities. (b) In no case may a State be re- 924.6 Permit procedures and criteria. quired to expend more on significant 924.7 Certification procedures improvement activities than the incre- 924.8 Appeals of administrative action. mental increases established by this Authority: Sece 302 and 303, Pub. L. 92- section. However, States may voluntar- 532. as amended: 86 Stat. 1061 (16 U.S.C ily exceed the minimum requirement 1432 and 1433). on significant improvement expendi Source: 40 FR 21706, May 19, 1975 unless tures established by this section. The otherwise noted failure to make significant improve- ments as a result of those expendi- 924.1 Authority tures in excess of the minimum re-, The Sanctuary has been designated quirement will not result in any reduc- by the Secretary of Commerce pursu- tion in financial assistance under the ant the authority of section 302(a) provisions of 928.5(a). unless such of the Act. The following regulations failure results In an unjustified devi- are issued pursuant to the authorities ation under 928.5(b). of sections 302(f), 302(g) and 303 of the Act. 177 National Oceanic and Atmospheric Adm., Commerce § 928.2 tablish minimum and maximum State sistance award levels will be set f 0 allocations. base level allocations, any adjustrn Allocation formula factors and under paragraph (e) of thts ion. weighting. Each State eligible to re- and in accordance with the ovisions cei a financial assistance award shall of section 312(a).(c). (d). Award be ocated an amount of the total levels may fall below e one percent available Federal funding based (1) minimum share (established by 306(b) for p of implementing the Assistant Administrator) of the section 312 of the Act. total funding available for allocation (Secs. 3 and 317 of the Coastal Zone min- to elligible State coastal management ace t Act) programs plus 21021. May 17.19821 (2) A proportionate share of the re- mainder be divided as follows: (i) Sixty percent will be allocated PART 928-REVIEW OF' based on each eligible State's propor- PERFORMANCE tionate share of the length of tidal shoreline and/or Great Lake shoreline mileage of all participating States Sec. based on th most recently available 928.1 General. data from or accepted by the National 928.2 Definitions. Ocean Survey, and 928.3 Procedure for conducting continuing (ii) Forty percent will be allocated reviews of approved State CZM pro- graml. on each eligibl State's 920q&4 Public participation. share of the gate population of 920q&5 Enforcement. all coastal count contained in whole Au=onrrr. Section' 312 of the Coastal or in pwt within the designated C0913t- Zone 6Maagement Act.. as amended (16 al boundary of eligible State coast- U.S.C. 1458). al programs b on official data or SouRcc 47 6PR 21021. May 17, 1982. unless the most recent U census. otherwise notedL (3) Should any base alloca- tion exceed the m established I 921LI General. by the Assistant rator. the This pad sets -forth the require- excess amount sh" be subtracted ments for review of approved State coastal zone management (CZ8qM) pro- from the established aximum and re- ,distributed propcrti ately among grams pursuant to section 312 of the those eligible States th allocations Act (16 U.S.C. 1458). This part defines not exceeding the es blished "continuing review" and other impor- MUM. tant terms, and sets forth the proce- (d) Use of the alloca ton formul dures for. The allocation formula be used (a) Conducting continuing reviews of to establish base level tons f or approved State CZM programs; each State coastal m ement pro- (b) Providing for public participa- gram eligible to receive eral fund- tion: ing. (C) Invoking interim sanctions for (e) Adjustment for down Of non-adherence to an approved coastal Federal funding. The Assts t Admin- zone management program or a por- istrator may adjust base lev I alloca- tion of such program; and tions as necessary to impl ent a (Y Withdrawing program approval phase down of Federal finan &I sup- and 2f2qin0qanc8ql4qa2qX assistance. port. Any such adjustment s be im- plemented in a manner whic gives [57 12qP12qR 31113. July 18q4.198q926q1 some priority to recently ved § 90q220q&0q2. Definitions. State coastal management Options for Implementation (a) Continuing review means moni- down will be submitted to t S tes toring State performance an an ongo- for review and comment. ing ban's As part of the continuing (f) Calculation of ftancial t- review, evaluations of approved C24qZ24qM o ance award leveL Actual financial programs will be, conducted and writ- t W P b of ele der d ce v t ve e P io n y w 3 0 d P 'e t h (a) v e (c ow t h 0 a f t th qc e ara r w' h e s L 'Is an e dj is e 0 r t v m is ro to o L d) Award all be s one Percent under section implement ng man_ 306(b) for of section 312 of the Act 3and 317 of theC ne age tAct) qM 21021. 17.19821 J tate's imum a12p pro of h 178 § 92IL3 15 CER Ch. IX (1-1-93 Edition) ten. findings will be produced at least (g) Assistant Administrator mesm once every three years. the Assistant Administrator for Ocean (b) Adherence means to comply with Services and Coastal Zone Manage- the approved CZM program and finan- ment, or the NOAA Official responsi- cial assistance award or work program. ble for directing the Federal Coastal (c) Intertm sanction means suspen- Zone Management ProffranL sion and redirection of my pofUon of (47 PR 21021, Kay 17. 191M as amended at fimmcial assistance extended to any 57 PR 31113. July 14. 1MI coastal State under this title, If the Secretary determines that the coastal 92U pmcedure for conducting continu. State 13 failing to adhere to the man- Ing reviews of approved State CZM agement program or a State plan de- programs. veloped to manage a national estua- (a) As required by section 312(a), the rine reserve, or a portion of the pro- Secretary qh%Lll conduct a continuing gram or plan approved by the Secre- review of the performance of coastal tary. or the terms of my grant or co- States with respect to coastal manage- operative agreement funded under ment. Each review shall include a writ- this title. ten evaluation with an assessment and (d) Approved CZX program means detailed findings concerning the those elements of the program aP- extent to which the State has imple- proved by the Secretary. under 15 mented and enforced the program ap- CPR part 923 (Development and Ap- proved by the Secretary. addressed the proval Provisions), including any coastal management needs identified changes to those elements made by ap- in section 303(2XA) through M. and proved amendments and routine pro- adhered to the terms of any grant gram implementation. loan. or cooperative agreement funded (e) Financial assistance award under this title (16 U.S.C. 1451-1464). means a legal instrument that creates (b) Continuing review procedure& a relationship between the Federal (1) Each State will submit a financial government and another entity (recip- application or work pro- ient). The principal purpose of the Mistance award is the transfer of money or serv. gram. whichever is applicable. on a ices in order to accomplish a public timetable negotiated with the Assist- purpose authorized by Federal statute. ant Administrator. describing the The term "financial assistance award!' tasks to be undertaken by the StAte encompasses grants, loan , and cooper. for the purpose of imMementinc and ative agreements. The following ele- enforcing Its approved.C234 program ments constitute the award: (2) For the purpose of evaluation. (1) The work program described in the States will submit performance re- the approved application; ports as specified in the Special Award (2) The budget; Conditions. or. if the State Is not re- (3) The standard terms and condi- ceiving an award. as negotiated with tions of the award: the Assistant tor. The re- (4) Any special award conditions In- ports will address all areas identified cluded with the award; in each State's Performance Report (5) The statutes and regulations Guidelines. under which the award Is authorized; (3) The Assistant Administrator will and collect information on the State C2M (6) Applicable OM33 cost principles programs on a continuing basis. At the and administrative requirements- beginning of.each evaluation. the As- (f) Work program mews a descrip- aisunt Administrator will, analyze tion of the tasir to be undertaken by a avLil- le Information. identify infor- State f 6r a given time period for the mation gaps, and formulate any addi- purpose of implementing and enforc- tional information needs that wM be ing an approved CZM program. The the subject of a supplemental informa- work program is submitted an a Part of tion request to the State. a Federal financial assistance &VPUCIL- (4) The Assistant minixtrLtor may tion. or separately in the absence of conduct a site visit as a part of the Federal fin-n 'a' assistance. evaluation- 179 National Ocoanic and Atmasphoric Adrn., CommOrce § 928.3 (5) Draft findings of the evaluation ,will be transmitted to the State. The '@@Idrements for continuing review of aul)roved State czM pro- 'State will have a minimum of two grams. weeks from receipt of the draft find- (1) Scope Of continuing reviews. The ings to review them and provide com- continuing review of a state-s ap. ments to the Assistant Administrator. proved CZM program wM include an This review time may be extended evaluation of the extent to which the -upon request from the State. State has: (6) Within two weeks from receipt of (1) Implemented and enforced the the draft finding& a State may request program approved by the secretary-, a meeting with the Assistant Adminls- (H) Addressed the coastal manage- trator to discuss the draft findings and ment needs identified In section 303(2) the State's comments. - (A)-(K) (16 U.S.C. 1452): and (7) The Assistant Administrator will (Ui) Adhered to the terms of finan. issue final findings i@ the State CZM cial assistance awards. program manager and the head of the (2) Procedure for assessing a4V&er- State CZM agency within 120 days of ence to the approved CZM progra= (j) the last public meeting in the State. In reviewing adherence of ar State to Copies of the final findings will be its approved CZM program the Assist. sent to all persons and organizations ant r will evaluate all as- who participated in the evaluation. pects of the "approved CZM program" Participants may be asked to complete as defined in I 92&2(d). The evalua- a card or sign-in sheet provided by the tion will examine the extent to which: evaluation team indicating that they (A) The State is implementing and wish to receive the final findings. enforcing its approved C2M program; Notice of the availability of the final (B) The management agency is ef. findings will also be published in the fectively playing a leadership role in P=RAL RzrisTm coastal Issues. monitoring the actions (8) The final findings will contain a of appropriate State and local agencies section entitled "Response to Written for compliance with the approved Comments." This section will include a CZM program. and assuring the oppor- summary of all written comments re- tunity for full participation of all in- ceived during the evaluation and terested entities in CZM program im- NOAA's response to the comments. If plementation; and appropriate, NO_AA*s response will in- (C) The management agency is ef- dicate whether NOAA agrees or dis- fectively carrying out the provisions of agrees with the comment and how the Federal consistency. comment has been addressed in the (U) The findin concerning the final findings. State's adherence to its approved CZM (9) The Assistant Administrator may program will be -used in negotiating conduct issue or problem-specific eval- the next financial assistance award or uations between scheduled evaluations work program. whichever is applicable. of approved State CZM programs. (3) Procedure for assessing how the Such issue or problem-gpecific evalus- State has addressed the coastal man- tions will be conducted to follow-up on agement needs identified in section potentially serious problems or Issues 303(2) (A)-(K). The assessment of the identified In the most recent sched- extent to which the State has ad- uled evaluation or to evaluate evidence dressed the coastal management needs of potentially serious problems or Identified in section 303(2) (A)-(K) issues that mik arise during day-to- will occur as follows: day monitoring of State performance (1) The State, in it& verformance of grants tasks or other program im- report. will provide the Assistant Ad- plementation activities in the interim ministrator with a listing of all actions between scheduled evaluationa. If the it is tairin during the performance Assistant Administrator conducts an report period to address the national issue or problem specific evaluation. coastal management needs and how he/she will comply with the proce- these actions relate to conditions in dures and public participation require- the State and the objectives and prior- ments of 15 CPR 928.3 and 928.4. ities in the State CZM program- 1 so § 928.4 15 CFR Ch. IX (1-1-93 Edition) (ii) The Assistant Administrator, in (d) Requirements for continuing the evaluation findings. will assess the review of State coastal energy impact extent to which the State's actions are program. targeted to meeting identified "needs" (1) Scope of continuing review & The and the effectiveness of the actions in continuing review of State coastal addressing those needs. Based on this energy impact programs will include assessment, the Assistant Administra- the following elements: tor win make findings and recommen- (1) An evaluation of the State's ad- dations of the extent to which each herence to the terms of financial as- state is addressing the coastal man- sistance adwards. agement needs identified in section (ii) An evaluation of the relationship 303. between coastal energy impact (iii) The findings concerning how projects and the approved CZM pro- the State has addressed the coastal gram. management needs of section 303 will (iii) A description of energy activities be used by the Assistant Administra- in coastal areas and the impact result- tor in negotiating the next financial ing from these activities; and assistance award. (1v) An evaluation of the effective- (4) Procedure for assessing adher- ness of the coastal energy impact pro- ence to the terms of financial assist- gram In dealing with these conse- ance awards. (1) Adherence to finan- quences. cial and administrative terms of each (2) Procedure for assessing adher- financial assistance award will be de- ence to the terms of financial assist- termined by the NOAA Grants Office ance award. See I 928.3 (c)(4). and the Department of Commerce In- (47 FR 21021. May 17. 1982, as amended at spector General. Adherence to pro. 57 FR 31114, July 14.1992} grammatical terms of each financial as- 1928.4 Public participation. sistance award will be determined by the Assistant Administrator and the (a) As required by section 312(b) of NOAA Grants Office. These determi- the Act in evaluating a coastal State's nations will be made in accordance performance, the Secretary shall con- with the requirements outlined in duct the evaluation in an open and these regulations, the findin of a fi- public manner and provide full oppor- nancial audit of the award, and the tunity for public participation, includ- following criteria: ing holding public meetings in the (A) Compliance with the statute, State being evaluated and providing regulations, and applicable OMB cir- opportunities for the submission of culars; written and oral comments by- the (B) Submission of required reports public. The Secretary shall provide and satisfactory completion of work the public with at least 45 days notice products as described in the approved of such public meetings by placing a application and within the timeframe notice in the FEDERAL REGISTER, by specified; publication of timely notices, In news- (C) Compliance with Standard papers of general circulation within Terms and Conditions and Special the State being evaluated, and by com- Award Conditions within the specified munications with persons and organi- timeframes. zations known to be interested in the evaluation. Each evaluation shall be (D) Use of award funds only for ap- prepared in report form and shall In- proved projects; and clude written responses to the written (E) Substantive modification of ap- comments, received during the evalua- proved projects only with the prior tion process. agreement of NOAA. (b) Requirements. <1> The assistant (ii) The findings concerning adher- Administrator will publish a Notice of ence to the terms of financial assist- Intent to Evaluate in the FEDERAL REG- ance awards will be used In negotiating ISTER at least 45 days before the public the next financial assistance award. if meeting(s). The notice will include a any. Statement of the availability of the 181 National Oceanic and Atmostpheric Adm., Commerce § 928.5 State's performance report and the (B) The terms of any, grant or COOP- -supplemental information request. erative agreement funded under this (2) Each State will issue a notice of title (16 U.S.C. 1451-1464). the public meeting(s) in its evaluation (ii)Financial assistance may not be by placing a notice in the suspended under Paragraph (a)(1)(i)of newspaper(s) of largest circulation in this section unless the Secretary pro. the coastal area where the meeting(s) vides the Governor of the coastal is being held and by taking other rea- State with- sonable action to communicate with (A) Written specifications and a persons and organizations known to be schedule for the actions that should interested in the evaluation. such as be taken by the State in order that sending a notice of the meeting(s) to such suspension of financial assistance persons on its mailing list and publish- may be withdraw; and ing a notice in its newsletter at least (33) Written specifications stating 45 days before the date of the Public how those funds from the suspended meeting(s). The State will provide a financial assistance shall be expended copy of such notice to the Assistant by the coastal State to take the ac- administrator. States are encouraged tions referred to in paragraph to republish the newspaper notice at (a)(0MIXA) of this section. least 15 days before the date of the 4M The suspension of financial as public meeting(s). The State will sistance may not last for less than 6 inform the public that oral or written months or more than 36 months after comments will be accepted and that the date of on. attendance at the public meeting(s) is (2) Requirements (I) The Assistant not necessary for submission of writ- Administrator will. Identify the need for interim sanctions through the con- ten comments. tinuing review process. The Assistant (3) Notice of the availability of final Administrator will use the criteria at finding will be published in the FED- 15 CFR 928.5(a)(3) in determining ERAL REGISTER. The notice Will state when to invoke interim sanction& that copies of the final finding will be (ii) The Assistant administrator will available to the public upon written issue the State a preliminary finding request. Copies of the final finding of non-adherence with the approved will be sent to persons and organiza- CZM program, or a portion thereof, tions who participated in the evalua- and/or with a term or terms of a grant tion. in accordance with 15 CPR or cooperative agreement. This prelim- 928.3(b)(7). inary finding of non-adherence may be {41 FR 21021. May 17. 1982, as amended at contained in the draft evaluation find- 57 FR 31114. July 14.1992} tained in a preliminary notification letter to the State CZM program man- § 928.5 Enforcement. ager. If the preliminary finding is con- tained in a preliminary notification (a) Procedures and criteria for in- letter, the Assistant Administrator will voking and lifting interim sanctions. comply with the applicable public Par- (1) As required by section 312(c) of the ticipation requirements of section Act: 312(b) and NOAA's regulations. at 15 (I) The Secretary may suspend pay- CPR 928.4. The draft evaluation find- ment of any portion of financial assist- ing or preliminary notification letter ance extended to any coastal State. containing a preliminary finding of Lad may withdraw any unexpended non-adherence will explain that if the portion of such assistance, if the Sec- finding of non-adherence is issued. the retary determines that the coastal State is subject to suspension of finan- State is failing to adhere to- cial assistance and, if the State falls to (A) The management program or a take the actions specified pursuant to State plan developed to manage a na- section. 312(c) and this part, to with- tional estuarine reserve established drawal of program approval and finan- under section 315 of the Act (16 U.S.C. cial assistance. 1461), or a portion of the program or (III) The State will be given 30 days plan approved by the Secretary; or from receipt of the draft evaluation 182 § 928.5 15 CFR Ch. IX (1-1-93 Edition) findings or preliminary notification (vi) The State must respond to the letter to comment on and rebut the final evaluation findings or final noti- preliminary finding of non-adherence. fication letter by developing a pro- During this 30-day period, the State Posed work program to accomplish the may request up to 15 additional days required actions on the schedule set to respond, for a maximum of 45 days forth in the final evaluation findings from receipt of the draft evaluation or final notification letter. The State findings or preliminary notification may propose an alternative approach letter. to accomplishing the required actions (iv) After considering the State's and\or an alternative schedule. The tor will decide whether or not to issue Assistant Administrator's approval of a final finding of non-adherence. If the State's work program will signify he/she will do so in the final evalua- his\her agreement with the approach and schedule for accomplishing the ac- tions necessary to withdraw the sus- pension. tion findings issued pursuant to sec- (vii) The Assistant Administrator tion 312(b) or In a final notification will monitor State performance under letter as provided by paragraph the work program. This may involve (a)(2)(ii) of this section. The Assistant additional direction to the State Administrator may invoke interim through the grant administration sanctions provided by section 312(c) process and/or a visit to the State by immediately or at any time after issu- appropriate NOAA program staff, ing the final evaluation findings or evaluation staff and/or other experts final notification letter containing the to work, with the State on a specific finding of non-adherence, but not problem or issue. The Assistant Ad- later than the next regularly sched- ministrator will consider proposals to uled evaluation. revise the work program on a case-by- (v)If the Assistant administrator case basis, providing that the State decides to invoke interim sanctions, will still be able to accomplish the nec- he/she will do so by sending the final essary actions within a maximum of 36 evaluation findings or final notifica- months. tion letter to the Governor of the (viii) The State must document that State and the State CZM program it has taken the required actions on manager. The final evaluation find- the schedule established under this ings or final notification letter will section. The State must provide its contain the information required in documentation in writing to the As- section 312(c)(2) (A) and (B). This in- sistant Administrator. The Assistant formation will include the amount of Administrator may conduct a follow- financial assistance to be suspended up evaluation or otherwise revisit the and redirected, the actions the State State at his/her discretion. should take in order to have the sus- (ix) If the Assistant Administrator pension withdrawn. how the suspend- determines that the required actions ed funds shall be expended to take the have been taken, the Assistant Admin- required actions, and a schedule for istrator will promptly notify the Gov- taking the required actions. The final ernor and the State program manager, evaluation findings or final notifica- in writing, that NOAA has withdrawn tion letter will also contain the length the suspension of financial assistance. of the suspension, which may not last If, however, the State does not take for less than6 months or more than the required actions, then the Assist- 36 months. The Assistant Administra- ant Administrator will invoke the final tor will establish the length of the sus- sanction provisions of section 312(d) pension based on the amount of time on program termination and with- that is reasonably necessary for the drawal of all financial assistance. State to take the required actions. If (3) Criteria for invoking interim the State can take the required ac- sanctions. (i) The Assistant Adminis- tions faster than expected, the suspen- trator may consider the following indi- sion can be withdrawn early (but not cators of non-adherence to an ap- in less than six months). proved State CZM program in deter- 183 National Oceanic and AtmOsPhoric Adm., Commerce § 928-5 mining whether to invoke interim could include: Not reviewing Federal sanctions. activities. Federal licensw and per- (A) Ineffective or inconsistent imple. mits, including Offshore Oil and gas ex- mentation of legally enforceable poli- ploration and development. and Feder. cies included in the CZM program. In- al financial assistance to State and dicators of Ineffective or Inconsistent local governmen for consistency with implementation could include: evi- the approved C2W program or em- dence of non-compliance with core au- ploying review procedures that are not thorities by the regulated community. in accordance with State and NOAA Insufficient monitoring and Inspecting regulations. of coastal development to ensure that (E) Inadequate opportunity for It conforms to program requirements intergovernmental cooperation and and applicable conditions; or inad- public participation in anagement equate enforcement action when de- program implementation. Indicators velopment is found not to be In com- of inadequate opportunity could in- Pliance with the program or permit clude. not carrying out procedures nec- under which it Is authorized or Is essary to insure adequate consider- found to be an unpermitted activity. ation of the national interest In facill- In applying this indicator. NOAA will ties which are necessary to meet re- consider my available evidence of the Quirements which are other than local impacts of Ineffective or Inconsistent In nature, not Implementing effectIve. implementation on coastal resourcm ly mechanisms for continuing consul. (B) Inadequate monitoring of the ac- tation and coordination. not providing tions of State and local agencies for required- notice that a management compliance with the program. Indics- program decision would conflict with a tom of inadequate monitoring of these local zoning ordinance, decision or agencies could include: evidence- of other action pursuant to section non-compliance of networked agencies 306(dX3XBXI) and 15 CPR 923.57. or with the C2M program.- unresolved not providing opportunities for public conflicts between agencies regarding participation in permitting processes. what constitutes compliance with the consistency determinations and other program. or lack of a mechanism to similar decisions pursuant to new sec- ensure that all State agencies will tion 306(dX 14) after November 5. 1993 adhere to the program or to approved and after states have been given rea- local coastal programs pursuant to sonable opportunity to comply with NOAA's regulations at 15 CPR 923.40 NOAA's implementing guidance. (and pursuant to new section (F) Non-adherence to the terms of a 306(d)(15), after November 5. 1993 and grant or cooperative agreement. in- after states have been given reasona- cluding the schedule'-for funded activi- ble opportunity to comply with ties. The Assistant Administrator will NOAA's implementing guidance). also consider the extent to which- pri- (C) Non-compLiance of local coastal orities for expenditure of Federal programs with the approved State pro- funds reflect an appropriate priority gram Indicators of non-compliance for activities necessary to implement could include: Local permitting or and enforce core program authorities zoninc decisions that am inconsistent effectively. with State standards or criteria. wide- (0) Not submitting changes to the spread granting of variances such as to approved program for Federal approv- render a zoning program Ineffective in al on a schedule developed pursuant to meeting State standards or criteria. 15 CPR 923.81(c) and 923.84(bX1XI) or changes to local comprehensive plans developing and implementing chan es or zoning m that are inconsistent to the approved program without Ped- with State standards or criteria, or in- eral approval which are adequate monitoring and enforcement. with the Act or the approved program as described in paragraph (&X3XiXA) or which result In a reduced level of of this section. protection of coastal jr urces. (D) Ineffective Implementation of (U) The Assistant Administrator may Federal consistency authority. Indics- consider whether an indication of non- ton of ineffective Implementation adherence in of recent origin (in which 184 Pt. 929 15 CFR Ch. IX (1-1-93 Edition) case the State may be given a reasona- Federal Register and will inform the ble opportunity to correct it) or has State of its right to a public hearing. been repeatedly brought to the State's (iii) If the State does not request a attention without corrective action in public hearing or submit satisfactory determining whether to invoke inter- evidence that It has taken the actions im sanctions. specified pursuant to 15 CFR (b) Withdrawal of Program approval 928.5(a)(2) within 30 days of publica- and financial assistance (1) As re- tion of this notice, and the Assistant quired by Sections 312(d) and 312(e) of Administrator determines that the the Act: State has failed to take the actions (i) The Secretary shall withdraw aP- specified pursuant to 15 CFR proval of the management program of 928.5(a)(2), the Assistant Administra- any coastal State and shall withdraw tor will withdraw program approval financial assistance available to that and financial assistance and will notify State under this title as well as any the State In writing of the decision unexpended portion of such Assist- and the reasons for it. The notifica- ance, if the Secretary determines that tion will set forth actions that must be the coastal state has failed to take the taken by the State which would cause actions referred to in paragraph the Assistant Administrator to cancel (a)(l)(ii)(A) of this section. the withdrawal. (ii) Management program approval (iv) If the State requests a public and financial assistance may not be hearing within 30 days of publication withdrawn under paragraph (b)(1)(i) of the notice of intent to withdraw of this Section, unless the Secretary program approval and financial assist- gives the coastal State notice of the ance, the Assistant Administrator will proposed withdrawal and an opportu- publish 30 days advance notice of the nity for a public hearing on the PrO- hearing in the Federal Register and posed action. Upon the withdrawal of the newspaper(s) of largest circulation management program approval under in the State's coastal zone. The hear- paragraph (b)(1)(i) of this section, the Ing will be held in a location conven- Secretary shall provide the coastal ient to the citizens of the State's State with written specifications Of coastal zone and a record of the hear- the actions that should be taken, or ing will be maintained. Within 30 days not engaged in, by the State in order of the completion of the hearing, the that such withdrawal may be canceled agency will make the determination as by the Secretary. set forth in paragraph (b)(2)(iii) of (2) Requirements. (i) If the Assistant this section. Administrator determines that the (3) if program approval and finan- State has not taken the actions re- cial assistance are withdrawn pursuant quired In 15 CFR 928.5(a)(2), the As- to this section a notice will be placed sistant Administrator will provide the in the Federal Register and Federal Governor and the State CZM program consistency under section 307 of the manager with written notice of this Act will cease to apply to the State's finding and NOAA's obligation to CZM program. withdraw program approval and finan- cial assistance under this title. The (47 FR 21021, MAY 17, 1982, as Amended At State will be given 30 days from re- 57 FR 31114, July 14, 1992) ceipt of this notice to respond with evidence that it has taken the actions specified pursuant to 15 CFR. 928.5(a)(2). During this 30-daY Period, the State may request up to 30 addi- tional days to respond, for a maximum of 60 days from receipt of notice. (ii) If the State does not respond sat- isfactorily within the time allowed, the agency will notify the state of intent to take the proposed action. This notice will be published in the 185 National Oceanic and Atmospheric Adm., Commerce Pt. 930 See. 930.15 OCZM. 930.16 Assistant Administrator. 930.17 Federal agency. 930.18 State agency. 930.19 Management program 930.20 Coastal zone. 930.21 Associated facilities. Subpart C -- Consistency for Federal Activities 930.30 Objectives. 930.31 Federal activity. 930.32 Consistent to the maximum extent practicable. 930.33 Identifying Federal activities direct- ly affecting the coastal zone. 930.34 Federal agency consistency determi. nations. 930.35 Federal and State agency coordination. 930.36 Availability of mediation for nega- tive determination disputes. 930.37 Consistency determinations for pro- posed activities. 930.38 Consistency determinations for ac- tivities initiated prior to management NOTE:: The CZMA's federal program approval. consistency regulations, 930.39 Content of a consistency determina- 15 C.F.R. Part 930. These tion. 930.40 Multiple Federal agency particiPa- regulations are still author- 930.40 Multiple Federal agency paricipation itative to the extent that they 930.41 State agency response. are consistent with the 1990 930.42 State agency disagreement amendments to the CZMA. However, 930.43 Availability of mediation for dis- where the regulations say putes concerning proposed activities. "directly affecting the coastal 930.44 Availability of mediation for previ- zone," they should be read as ously reviewed activities. "affecting any land or water use Subpart D -- Consistency for Activities or natural resource of the Requiring a Federal License or Permit coastal zone." 930.50 Objectives. Per CZMA Sec. 307(c)(1)(A) 930.51 Federal license or permit. 930.52 Applicant. 930.53 Management program license and permit listing. 930.54 Unlisted Federal license and permit activities. PART 930 FEDERAL CONSISTENCY 930.55 Availability of mediation for license or permit disputes WITH APPROVED COASTAL MAX- 930.56 State agency guidance and assist- AGEMENT PROGRAMS ance to applicants: information require- ments. Subpart A --Objectives 930.57 Consistency certifications. Sec. 930.58 Necessary data and information. 930.59 Multiple permit review. 930.1 Overall objectives. 930.61 Public notice. 930.10 Index to definitions. 930.62 Public hearings. 930.11 Act. 930.63 State agency concurrence with a 930.12 Section. consistency certification. 930.13 Secretary. 930.64 State agency objection to a consist- 930.14 Executive office of the President. ency certification. 186 § 930.1 15 CFR Ch. IX (1-1-93 Edition) Sec. Sec. 930.65 Federal permitting agency responsi- 930.115 Termination of mediation. bility. 930.116 Judicial review. 930.66 Availability of mediation for previ- ously reviewed activities. Subpart H Secretarial Review Related to the Subpart E -- Consistency for Outer Continental Objectives or Purposes of the Act and Na- Shelf (OCS) Exploration, Development tional Security Interests and Production Activities 930.120 Objectives. 930.121 Consistent with the objectives or 930.70 Objectives. purposes of the Act. 930.71 Federal license or permit activity 930.122 Necessary in the Interest of nation- described in detail. al security. 930.72 Person. 930.123 Appellant. 930.73 OCS plan. 930.124 Informal discussions. 930.74 OCS activities subject to State 930.125 Appeals to the Secretary. agency review. 930.126 Federal and State agency re- 930.75 State agency assistance to persons; sponses to appeals. Information requirements. 930.127 Public notice: receipt of comments. 930.76 Submission of an OCS plan and con- 930.128 Dismissal of appeals. sistency certification. 930.129 Public hearings. 930.77 Necessary data and information 930.130 Secretarial review. 930.78 Commencement of State agency review; public notice. 930.131 Federal agency responsibility. 930.79 State agency concurrence or objec- 930.132 Review initiated by the Secretary. tion. 930.133 Public notice; receipt of comments; 930.80 Effect of State agency concurrence. public hearings. 930.81 Federal permitting agency responsi- 930.134 Secretarial review; Federal agency bility. responsibility. 930.82 Multiple permit review. 930.83 Amended or new OCS plans. Subpart I-Assistant Administrator Reporting 930.84 Review of amended or new OCS and Continuing Review of Federal Actions plans; public notice. Subject to the Federal Consistency Re- 930.85 Continuing State agency objections. quirements 930.86 Failure to comply substantially with an approved OCS plan. 930.140 Objectives 930.141 Notification of Federal actions be- Subpart F-Consistency for Federal Assistance lieved to be inconsistent with approved to State and Local Governments management programs. 930.142 Notification of Federal actions be- 930.90 Objectives. lieved to have been incorrectly deter- 930.91 Federal assistance. mined to be inconsistent with an ap- 930.92 Applicant agency. proved management program. 930.93 Intergovernmental review process. 930.143 Assistant Administrator reporting. 930.94 State Intergovernmental review 930.144 Assistant Administrator advisory process for consistency. statements. 930.95 Guidance provided by the State 930.145 Review of the implementation of agency. the Federal consistency provisions. 930.96 Consistency review. 930.97 Federal assisting agency responsabil- AUTHORITY. Secs. 307.316 and 317, Coastal ity. Zone Management Act of 1972, Pub. L. 92- 930.98 Federally assisted activities outside 583.86 Stat. 1280 (16 U.S.C. 1451 et seq.), as of the coastal zone or the described geo- amended by Pub. L. 94-370, 90 Stat.1013. graphic area. SOURCE 44 FR. 37143. June 25, 1979. unless 930.99 Availability of mediation for Feder- otherwise noted. al assistance disputes. 930.100 Availability of mediation for previ- Subpart A Objectives ously reviewed activities. Subpart G -- Secretarial Mediation 930.1 Overall Objectives. 930.110 Objectives. The objectives of these regulations 930.111 Information negotiations. are: 930.112 Request for mediation. (a) To describe the obligations of all 930.113 Public hearings. agencies, individuals and other parties 930.114 Secretarial mediation efforts. who are required to comply with the 187 National Oceanic and Atmospheric Adm., Commerce § 930.14 Federal consistency provisions of the the performance review of State Im- Coastal Zone Management Act: plementation of the Federal consisten- (b) To implement the Federal con- cy provisions. sistency provisions in a manner which strikes a balance between the need to Subpart B General Definitions ensure consistency for Federal actions affecting the coastal zone with ap- 930.10 Index to definitions. proved coastal management and the The following list includes all terms need to promote Federal programs; defined in Part 930 of this title keyed (c) To provide flexible procedures to the section or paragraph in which which foster Intergovernmental Coop- they are defined. eration and minimize duplicative effort and unnecessary delay. while Term making certain that the objectives of the Federal consistency provisions of Act 930.11 the Act are satisfied; Applicant 930.123 (d) To interpret significant terms in Applicant 930.52 the Federal consistancy provisions so Applicant agency 930.92 that they can be uniformly under- Assistant Administrator 930.16 stood and adhered to by all agencies. Associated facillities 930.21 individuals and other affected parties; Coastal Zone 930.29 (e)To provide procedures to make certain that all Federal agency and Consistent with the objectives or purposes of the Act 930.121 State agency consistency decisions are directly related to the objectives, poli- Development project 930.31(b) cies, standards and other criteria set Executive Office of the President 930.14 forth in, or referenced as part of, ap- Failure substantially to comply with an OCS proved coastal managementprograms; plan 930.86(d) (f)To provide procedures which the Federal activity 930.31 Federal agency 930.17 proved coastal management pro Federal assistance 930.91 (f) To provide procedures which the Federal license or permit 930.51 Secretary, in cooperation with the Ex- Federal license or permit activity described in 930.71 ecutive Office of the President, may Management program 930.19 use to mediate serious disagreements Necessary in the interest of national security 930.122 which arise between Federal and State OCS plan 930.73 agencies during the administration of OCZM 930.15 OMB A 96 process 930.93 approved Coastal management pro- Person 930.72 grams: Secretary 930.13 (g) To provide procedures which Section 930.12 permit the Secretary to review Federal State agency 930.16 license or permit activities, or Federal assistance activities, to determine whether they are consistent with the 930.11 Act. objectives or purposes of the Act, or The term Act means the Coastal are necessary in the Interest of nation- Zone Management Act of 1972, as al security; amended (16 U.S.C. 1451 et seq.). (h) To provide procedures which permit interested parties to notify the 930.12 Section. Assistant Administrator for Coastal The term Section means a section of Zone Management of Federal actions the Coastal Zone Management Act of believed to be Inconsistent with an 1972, as amended. approved coastal management programs, 0r believed to have been incorrectly 930.13 Secretary. determined to be inconsistent with an The term secretary means the Secre- approved management program; and tary of the U.S. Department of Com- (1) To provide procedures for the re- porting of any Federal actions found merce. by the Assistant Administrator for 930.14 Executive Office of the President. Coastal Zone Management to be in consistent with an approved coastal The term Executive Office of the zone management programs. and for president means the office. council, 188 § 930.15 15 CFR Ch. IX (1-1-93 Edition) board, or other entity within the Exec- review and comm nt from other State, utive Office of the President which regionaL or local government agencies. shall participate with the Secretary in Thereafter. only the State agency is seeking to mediate serious disagree- authorized to comment officially on a ments which may arise bet*een a Fed- Federal consistency determination. eral agency and a coastal State. concur with or object to a consistency 1930.15 OCZBL certification. or determine the consist- ency of a proposed Federal assistance The term OCZM means the Office of activity. Coastal Zone t, National oceanic and Atmospheric Administra- l 930.19 M&nageownt program tion. U.S. Department of Commerce. The term management progmm has 1930.16 Assistant Administrator. the same definition as provided in sec- The term Assistant Administmtor tion 304(11) of the Act, except that for means the Assistant Administrator for the purposes of this part the term is Coastal Zone Management, National limited to those management pro. Oceanic and Atmospheric Administr&- gra= adopted by & coastal State in ac' tion. U.S. Department of Commerce- cordance with the provisions of section 306 of the Act. and approved by the 1930.17 Federal agency. Assistant Administrator. The term Fedeml agency means any department. agency. board. commis- 1 M.20 Coastal zone. sion. counciL independent office or The term coastal zone has the same simil entity within the executive definition as provided in section 304(l) branch of the Federal government. or of the Act. any wholly owned Federal government corporation. 0 930.21 Associated facilities. 0 930.13 State agency. The term auociated facilities de- (a) The term State agency means the scribes all proposed facilities: agency of the State government desig- (a) Which are specifically designed. nated puzzuant to section 306(cX5) of located. constructed. operated. adapt- the Act to receive and administer ed. or otherwise used.. in full or in grants for an approved coastal man- major put. to meet the needs of a agement program, or a single designee Federal action (e.g.. activity, develop- State' agency appointed by the ment project, license. permit, or assist- 306(cx5) State agency. Any appoint- ance), and ment by the 306(cX5) State agency of (b) Without which the Federal a designee agency must be described In action. an proposed. could not be con- the State's man ement program In ducte(L the absence of such description. all All further requirements In this part consistency determinations. consisten- related to the review of and consistm- cy certifications and Federal - assist- cy for Federal activities including de- ance proposals shall be sent to and re- viewed by the 306(cX5) State agency. velopment projects (see subpart C of (b) The State agency is responsible ttds part), Federal license and permit for commenting on Federal agency activities (see subparts D and E of this consistency determin tions (see sub. part) and Federal ass' tance activities part C of this part). concurring with or (see subpart F of this part) also apply objecting to consistency'certlfica@tlons to associated facilities related to those for Federal licenses. permits. and Federal action& Therefore. the PrOPO- Outer Continental Shelf plans (we nent of a Federal action must consider subparts D and E of this part), and re. whether the Federal action and its as- viewing the consistency of Federal as- sociated facilities affect the coastal sistance activities proposed by State or zone and. if so. whether these Interre- local government agencies (see subpart lated activities satisfy the relevant F of this part). The State agency x1hall consistency requirement of the Act. be responaible for securing necessary 189 Hationai Oceanic and Atmospheric Adm., Commerce § 930.34 Subpart C-Consistency for Federal to cause substantive changes in Feder. Activities al agency decisionmaking within the context of the discretionary Powers re- 0 930.30 Objectives. siding within such agencies. Accord. The provisions of this subpart are ingly. when read together, sections provided to assure that all federally 307(c) (1) and (2) and 307(e) require conducted or supported activities In- F6deral agencies. whenever legally cluding development projects directly permissible. to consider State-nuaWe. affecting the coastal zone are under- ment program as supplemental re- taken in a Manner consistent to the quirements to be adhered to in addi. maximum extent practicable with ap- tion to existing agency mandate& proved State coastal management pro- (b) A Federal agency may deviate graras- from full consistency with an ap. Proved management Program when 9 930.31 Federal activity. such deviation is Justified because of (a) The term Fedend activity means some unforeseen circumstances arising any functions performed by or on after the approval of the management behalf of a Federal agency in the exer- program which present the Federal cise of its statutory responsibilities. agency with a substantial obstacle (b) A Federal development project is that prevents complete adherence to a Federal activity Involving the plan- the approved program. ning. construction. modification. or re- 9 930.33 Identifying Federal activities di. moval of public works, facilities, or reedy affecting the coastal zone. other structures, and the acquisition. (a) Federal agencies shall determine utilization. or disposal of land or water which of their activities directly affect resources. (c) The term "Federal activity" does the coastal zone of States with ap- not include the issuance of a Federal proved rnftn%k ement programs. license or permit to an applicant or (b) Federal agencies shall consider person (see subparts D and E of this all development projects within the put) or the granting of Federal amist. coastal zone to be activities directly af- ance to an applicant agency (see sub. fecting the coastal zone. All other pan F of this part). types of activities within. the coastal zone am subject to Federal agency § 930.32 Consistent to the maximum review to determine whether they di- extent practicable. rectly affect the coastal zone. (a) The term "consistent to the max. (cXD Federal activities outside of imum extent practicable" describes the coastal zone. as defined in section the requirement for Federal activities 304(l) of the Act. are subject to Feder- including development projects direct. &I agency review to determine whether ly affecting the coastal zone of States they directly affect the coastal zone. with approved management programs (2) OCS oil and gas lease sale activi- to be fully consistent with such pro- ties conducted pursuant to the Outer grams unless compliance is prohibited Continental Shelf Lands Act (43 based upon the requirements of exist. U.S.C. 1331 et seq.) are not Federal ac- ing law applicable to the Federal agen- tivities which directly affect the coast- cy's operation& If a Federal agency as- al zone within the meaning of section serts that compliance with the man- 307(cXD of the Act. and. therefore, agement program is prohibited, it are not subject to review under this must clearly describe to the State subpart. agency the statutory provisions. legis-. (44 1FR 37143.- June = 1979, as amended at lative history, or other legal authority 50 PR 35213. AuL 30. IM] which limits the Federal agency's dis- cretion to comply with the provisions 0 9SO 34 Federal agency conAdency deter- of the management program. minations. The duty the Act imposes upon Feder- (a) Federal agencies ah-11 provide &I agencies Is not set aside by virtue of State agencies with consistency deter. section 307(e). The Act was intended minatkma for all Federal activities di- 190 0 § 930.35 15 CFR Ch. IX (1-1-93 Edition) rectly affecting the coastal zone. The State agencies must notify Federal Federal agency may provide the State agencies within 45 days from receipt agency with this information in any of notice of the unlisted Federal activ- manner it chooses so long as the re- ty, otherwise the State agency waives quirements of this subpart are satis- its right to request a consistency de. fied. termination. The waiver does not (b) Federal agencies shall Provide apply in cases where the State agency State agencies with a consistency de- does not receive notice of the Federal termination at the earliest practicable activity (eg., for those Federal activ- time In the planning or reassessment ties which are not processed through of the activity. A consistency determi- Intergovernment Review Process es- nation should be prepared following tablied pursuant to E.O. 12372, development of sufficient information NEPA review or a similar procedure to determine reasonably the consisten- which Permits State agency monitor- cy of the activity with the State's ing). management program. but before the (c) The recommended listing and Federal agency reaches a significant monitoring procedures described in point of decisionmaking in its review paragraphs (a) and (b) of this section process. The consistency determina- are neither a substitute for nor elimi- tion shall be provided to State agen- nate Federal agency responsibility cies at least 90 days before final ap- proval of the Federal activity unless under if 930.33(b) and 930.34 to pro- both the Federal agency and the State vide State agencies with consistency agency agree to an alternative notifi- determinations for all development cation schedule. projects in the coastal zone and for all other Federal activities which the Fed- 930.35 Federal and State agency coordi- eral agency finds directly affect the nation. coastal zone. (a) State agencies should list in their (d) If a Federal agency decides that management programs Federal activi- a consistnecy determination is not re- ties which. in the opinion of the State quired for a Federal activity (1) Identi- agency. are likely to directly affect the fied by a State agency on its list or coastal zone and require a Federal through case-by-case monitoring,(2) agency consistency determination. which in the same as or similar to ac- Listed Federal activities must be de- tivities for which consistency determi- scribed in terms of the specific type of nations have been prepared in the activity involved (e.g.,Federal recla- past, or (3) for which the Federal mation projects). In the event the agency undertook a thorough consist- State agency chooses to describe Fed- ency assessment and developed initial eral activities outside of the coastal findings on the effects of the activity zone but likely to directly affect the on the coastal zone, the Federal coastal zone, it must also describe the agency shall provide the State agency geographic location of such activities with a notification at the earliest (e.g.. reclamation projects in coastal practicable time in the planning of the floodplains). activity, briefly setting forth the rea- (b) State agencies should monitor sons for its negative determination. A unlisted Federal activities (eg., by use negative determination shall be pro- of intergovernmental review process vided to the State agency at least 90 established pursuant to E.O. 12372, days before final approval of the activ- review, review of National Environ- ity. unless both the Federal agency mental Policy Act (NEPA) environ- and the State agency agree to in alter- mental impact statements. etc.) and native notification schedule. should notify Federal agencies of un- listed Federal activities which Federal Executive Order 12372, July 14,1982 (47 agencies have not subjected to a con- FR 30969),as amended April 8, 1983 (48 FR sisteny review but which in the opin- 15587); sec. 401, Intergovernmental Coop. eration Act at 1968, as amendeded (31 U.S.C. ion of the State agency, directly affect 6506); sec 204, Demonstration Cities and the coastal zone and require a Federal Metropolitan Development Act of 1966 as velopment Act of 1908qW an agency consistency determination. amended (42 U.S.C. 33341)). 191 National Oceanic and Atmospheric Adm., Commerce § 930.38 E 44 PR 37143. June 25. 1979. as amended at ency determination Will be required. 48 FR 29136. June 24. 19831 However. in cases where major Feder- 11930.36 Availability of mediation for neg- &I decisions related to a proposed de- ative determination disputes. velopment project will be made in phitses band upon developing infor. In the event of a serious disagree- mation. with each subsequent phase ment between a Federal agency and a subject to Federal agency discretion to State agency regarding a determina- implement alternative decisions based t,iOn related to whether a proposed ac- upon such information. (eg.. planning, tivity directly affects the coastal zone, siting. and design decisions). a consist- q. .ither party may seek the Secretarial, ency determination win be required mediation services provided for in sub- for each major decision. In cases of part 0. phased decisionmaking. Federa. agen- a 93o.37 Consistency determinations for cies shall ensure that the development proposed activitieL project continues to be consistent to the maximum extent practicable with (a) Federal agencies shall review the State's management prOgrazIL their proposed Federal activities which directly affect the coastal zone 1930.38 Consistency determinations for in order to develop consistency deter- activities initiated prior to manage- minations which indicate whether ment program approval. such activities will be undertaken in a (a) A consistency determination will manner consistent to the maximum be required for ongoing Federal activi- extent practicable with approved ties other than development projects ;State man ement programs- Federal (e.g.. waste disposal practices) initiated agencies we encouraged to consult prior to management program approv- with State agencies during their ef.. &L which are governed by statutory forts to aasess whether such activities authority under which the Federal will be consistent to the maximum agency ing discretion to res-g-gess extent Practicable with such pro- and modify the activity. In these cases grams. the consistency determin&Uon must be (b) in cases where Federal agencies made by the Federal agency at the win be performing repeated activity -other than a development project earliest practicable time following (e.g.. ongoing maintenance. was" dis- runagement program approvaL and posal, etc.) which cumulatively has a the State agency must be Provided direct effect upon the coastal zone, with a consistency determlin tion no the agency may develop a general con- later than 120 days after management ,sistency determination thereby avoid-' Program approval forongoing activi- .Pamte ties which. the State agency lists or ing the necessity of issuing 3e identifies through monitoring as sub- consistency determinations for each incremental action controlled by the Ject to consistency with the manage- major activity. A general consistency ment program. determin tion may only be used in sit- (b) A. consistency determination uation3 where the incremental actions shall be required for major. phased are repetitive or periodic. substantially Federal development project decisions MIDILL in nature. and do not directly described in I 930.37(c) which are affect the coastal zone when per- made following m%Ln ement program formed separately. If a Federal agency approval and are related to develop- issues a general consistency determl- ment projects initiated prior to pro- nation. it must thereafter periodically gram approval. In makin these new consult with the State agency to dis- decisions, Federal agencies %th&11 con- cuss the- manner in which the incre. sider cossW zone effects not fully mental actions are being undertaken. evaluated at the outset of the ProJecL (c) In cases where the Federal This Provision shILII not apply to agency has sufficient information to Phased. Federal decisions which Were determine the consistency Of & Pro'. specifically described. considered and posed development Project from PlAn- approved prior to management Pro- nine to completion. onIY one consist- gr&m. approval (e.c. in a final environ- 192 § 930.39 15 CFR Ch. IX (1-1-93 Edition) mental impact statement issued pursu- policies of the management Program. ant to the National Environmental However, Federal agencies need only Policy Act). give adequate consideration to man- § 930.39 Content of a consistency determi- agement program provisions which are nation. in the nature of recommendations. Fi- nally. Federal agencies do not have to (a) The consistency determinatoin evaluate. coastal zone effects for which shall include a brief statement indicat- the management program does not ing whether or not the proposed activ- contain mandatory or recommended ity will be undertaken in a manner policies because, in the absence of consistent to the maximum extent such provisions, there is no basis for practicable with the management pro- making a consistency determination gram The statement must be based with respect to such effects. upon an evaluation of the relevant (d) When Federal agency standards provisions of the management pro- are more restrictive than standards or gram. The consistency determination requirements contained in the State's shall also include a detailed descrip- tion of the activity. its associated fa- management program the Federal cilities and their coastal zone effects, agency may continue to apply its and comprehensive data and Informa- stricter standards (eg., restrict project tion sufficient to support the Federal development or design alternatives agency's consistency statement. The notwithstanding permissive manage- amount of detail in the statement ment program policies). In such cases evaluation, activity description and the Federal agency should Inform the supporting information shall be com- State agency In the consistency deter- mensurate with the expected effects mination of the statutory, regulatory of the activity on the coastal zone. or other basis for the application of (b) Federal agencies shall be guided the stricter standards. by the following In making their con- sistency determinations. The activity 930.40 Multiple Federal agency partici- (e.g.. project siting and constuction), pation. its direct effects (e.g, air, water, waste Whenever more than one Federal discharges, etc.), and associated facili- agency is involved in conducting or ties (e.g., proposed siting and construc- supporting a Federal activity or its as- tion of access road. connecting pipe- sociated facilities directly affecting line, support buildings etc.) and the the coastal zone, or is involved in a direct effects of the associated facili- ties (e.g., erosion. wetlands. beach group Of Federal activities related to access impacts, etc.) must all be con- each other because Of their geographic sistent to the maximum extent practi- proximity. consideration should be cable with the management program. given to the preparation of one con- Although nonassociated facilities (e.g., sistency determination for all the Fed- recreational housing which is induced eral activities involved. In such cases, by but not necessarily related to a Federal agencies should consider joint, Federal harbor dredging project--see preparation or lead agency develop- 930.21) must be included within the ment of the consistency determina- consistency determination's descrip- tion. In either the consistency de- tion of the direct effects of the act- termination (a) must be transmitted to ty, Federal agencies are not responsi- the State agency at least go 90 days ble for evaluating the consistency of before final decisions are taken by any such facilities. of the participating agencies, (b) must (c) In making their consistency de- indicate whether or not each of the terminations, Federal agencies sha11 proposed activities is consistent to the give appropriate weight to the various maximum extent practicable with the types of provisions within the manage- ment program. Federal agencies must management program, and (c) must in- ensure that their activitiesare consist- clude information an each proposed ent to the maximum extent practica- activity sufficient to support the con- ble with the enforceable, mandatory sistency determination. 193 National Ocoanic and AtmosPhoric Adm., CommocCO § M.44 9 930-41 State agency response- I 930.39(a)), the State agency's re- (a) A State agency shall inform the sponse must describe the nature of the Federal agency of its agreement or dis- information requested and the necessi- agreement with the Federal agency-s ty of having such Information to de. consistency determination at the earli. termine the consistency of the Federal est practicable time. If a final response activity with the management pro- has not been developed and issued gram. within 45 days from receipt of the (c) State agencies shall send to the Federal agency notification. the State Assistant Administrator a copy of re. agency should at that time inform the sponses which describe disagreements Federal agency of the status of the with Federal agency consistency deter. matter and the basis for further delay. minations. The Federal agency may presume State agency agreement if the State 0 930-43 Availability of mediation for dis. agency falls to provide a response putes concerning proposed wtivitiec within 45 days from receipt of the (a) In the event of a serious disagree. Federal agency notification. ment between a Federal agency and a (b) State agency agreement shall not State agency regarding the consisten. be presumed in cases where the State cy of a proposed Federal activity di. agency, with the 45 day period. re. rectlY affecting the coastal zone, quests an extension of time to review either party may request the Secretar- the matter. Federal agencies shall ap- ial mediation services Provided for in prove one request f or an extension subpart 0. period of 15 days or less. In consider- ing whether a longer or additional ex- 1930-44 Availability of mediation for pm tension period is appropriate, the Fed- viously reviewed activities. eral agency should consider the mag- nitude and complexity of the informa- (a) Federal and State agencies shall tion contained in the consistency de- cooperate in their efforts to monitor termination. Federally approved activities in order (c) FInal Federal agency action may to make certain that such activities not be taken sooner than 90 days from continue to be undertaken in a the Issuance of the consistency deter-' manner consistent. to the maximum mination to the State agency unless extent practicable, with the State's both the Federal agency and the State management program. agency agree to in alternative period (b) The State agency shall request (see I 930.34(b)). that the Federal agency take appropri- ate remedial action following a serious § 930.42 State agency disagreement. disagreement resulting from a State (a) In the event the State agency agency's obJection to a Federal activi- disagrees with the Federal agency's ty which was: (1) Previously deter. consistency determination. the State mined to be consistent to the mstri- agency shall accompany Its response mum extent practicable with the to the Federal agency with Its reasons State's mAnagement program but for the disagreement and supporting which the State agency later main- information. The State agency re- tains Is being conducted or is having a sponse must describe (1) how the pro- coastal zone effect substantially differ- posed activity will be inconsistent with ent than originally proposed and. as a specific elements of the rn%Ln%L ement. -result, is no longer consistent to the program, and (2) alternative measures maximurn extent practicable with the (if they exigrt) which. if adopted by the States management program or (2) Federal agency, would allow the activi- previously determined not to be a Ped- ty to proceed in a manner consistent eral activity directly affecting the to the maximum extent practicable coastal zone. but which the State with the man ement program. agency later maintains Is being con- (b) if the State agency's disagree- ducted or is having a coastal zone ment is based upon a finding that the effect subatantially different than Federal agency has failed to supply originally proposed an(L as a result. sufficient information (see the activity directly aff ects the coastal 194 § 930.50 15 CFR Ch. IX (1-1-93 Edition) zone and is not consistent to the maxi- partnership, association. or other mum extent practicable with the entity organized or existing under the State's management program The laws of any State, or any State, region- State agency's request must include al, or local government, who, following supporting information and a proposal management program approval, files for recommended remedial action. an application for a Federal license or (c) If, after a reasonable time follow- permit to conduct an activity affecting ing a request for remedial action, the the coastal zone. The term "applicant" State agency still maintains that a se- does not include Federal agencies ap- rious disagreement exists, either party plying for Federal licenses or permits. may request the Secretarial mediation Federal agecy "activities" requiring services provided for in subpart G. Federal licenses or permits are subject to the consistency requirements of Subpart D--Consistency for Activities subpart C of this part. Requiring a Federal License or Permit 930.53 Management program license and permit listing. 930.50 Objectives. (a) During management program de- The provisions of this subpart am velopment. Federal agencies should provided to assure that Federally li- assist State agencies in identifying censed or permitted activities affecting Federal license and permit activities the coastal zone am conducted in a which reasonably can be expected to manner consistent with approved man- affect the coastal zone. agement programs. (b) State agencies shall develop a list of Federal license and permit activities 1930.51 Federal license or permit. which are likely to affect the coastal (a) The term Federal license or zone and which the State agency permit means any authorization, certi- wishes to review for consistency with fication, approval, or other form of the management program. The list permission which any Federal agency shall be included as part of the man- is empowered to issue to an applicant. agement program. and the Federal li- (b) The term also includes the fol- cense and permit activities shall be de- lowing types of renewals and major scribed in terms Of the specific licenses amendments which affect the coastal or permits involved (e.g., Corps of En- zone: gineers 404 permits, Coast Guard (1) Renewals and major amendments bridge permits, etc.). In the event the of Federal license and permit activities State agency chooses to review Feder- not previously reviewed by the State at licenses and permits for activities agency; outside of the coastal zone but likely (2) Renewals and major amendments to affect the coastal zone, It must gen- of Federal license and permit activities erally describe the geographic location previously reviewed by the State of such activities. agency which are filed after and are (c) If a State agency wishes to avoid subject to management program repeated review of minor Federally amendments not in existence at the permitted activities which, while indi- time of original State agency review, vidually inconsequential, cumulatively and cause effects on the coastal zone. the (3) Renewals and major amendments State agency. after developing condi- of Federal license and permit activities tions allowing concurrence for such ac- previously reviewed by the State tivities, may issue a general public agency which will cause coastal zone notice (see 930.61) and general con- effects substantially different than currence allowing similar minor work those originally reviewed by the State In the same geographic area to pro- agency. ceed without prior State agency review. In such cases, the State agency 930.52 Applicant. must set forth in the management The term applicant means my Indl- program license and permit list vidual, public or private corporation, minor Federal license and permit ac- 195 Nationai Oceanic and Atmospheric Aden, C-Genmerce § 930.54 tivities and the relevent conditions (b) -7lie State agency must also which are covered by the general con- notify the Assistant Administrator of currence. Minor Federal license or unlisted Federal license or permit ac- permit activities which satisfy the con- tivities which the State agency be- ditions of the general concurrence are lieves should be subject to State not subject to the consistency certifi- agency review. Following State agency cation requirement of this subpart notification to the Federal agency, ap. in cum where the State plicant and the Assistant Administra. agency indicates otherwise. copies Of tor. the Federal agency may not issue Federal license or permit applications the license or permit until the require. for activities subject to a general con- mentS Of this subpart have been satis. currence must be sent by the applicant fled. unless the Assistant Administra- to the State agency to &How the State tor disapproves the State agency deci- agency to monitor adherence to the sion to review the activity. conditions required by such concur- (c) The Federal agency and the ap- rence. Confidential and proprietary plicant have 15 days from receipt of material within such applications may the State agency notice to provide be deleted. comments to the Assistant Adminis- (d) The license and permit list may trator regarding the State agency's de. be amended by the State agency fol- ciston to review the activity. The sole lowing consultation with the affected basis for the Assistant Administrator's Federal agency and approval of addi. approval or disapproval of the State tions or deletions by the Assistant Ad. agency's decision will relate to wheth- min' trator. The State agency shall er the proposed activity can be reason. provide copies of the list and any ably- expected to affect the coastal amendments to Federal agencies and zone of the State. The Assistant Ad. shall make the information available ministrator shall issue a decision. with to the public, supporting comments, to the State (e) No Federal license or Permit de- agency. Federal agency and applicant scribed on. an approved list shall be within 30 days from receipt of the issued by a Federal agency until the State agency notice. requirements of this subpart have (d) In the event of disapproval by been satisfied. Federal agencies shall the Assistant Administrator, the Fed- inform applicants for listed licenses eral agency may approve the license or and permits of the requirements of permit application and the applicant this subpart. need not comply with the require- ments of this subpart. If the Assistant § 930.54 Unlisted Federal license and Administrator approves the State permit activities. agency's decision, the'*Federal agency (a) With the assistance of Federal and applicant must comply with the agencies. State agencies should moni- consistency certification procedures of tor unlisted Federal license and permit this subpart. activities (e.g., by use of Intergovern- (e) Following an approval by the As- mental review process established pur- sistant Administrator, the applicant suant to E.O. 12372. review of NEPA shall amend the Federal application environmental impact statements, by including a consistency certifica- etc.) and shall immediately notify Fed- tion and shall provide the State eral agencies and applicants of unlist- agency with a copy of the certification ed activities affeeting the coastal zone along with necessary supporting data which require State agency, review. and information (see if 930.63 and State agencies must inform the Feder- 930.64). For the purposes of this aec- al agency and applicant within 30'days tion. concurrence by the State agency from notice of the license or permit shall be conclusively presumed in the application. otherwise the State absence ot a State agency objection agency waives its right to review the within six months from the oriidnal unlisted activity. The waiver does not Federal agency notice to the State apply in cases where the State agency agency (see paragraph (a) of this sec- do" not receive notice of the Pederal tion) or within three months from re- 0 License or pertnit activity. ceipt of the applicant's consistency 196 § 930-55 15 CFR Ch. IX (1-1-93 Edition) certification and accompanying infor- assess the consistency of Federal li- mation. whichever period terminates cense and permit activities. Required last. data and information may not include (Executive Order 12372, July 14. 1982 (47 confidential and proprietary material. FR 30959). as amended April 8, 1983 (48 FR In the case of approved amendments, 15587); sec. 401, intergovernmental Coop- State agencies shall send copies to rel- eration Act of 1968 as amended (31 U.S.C. evant Federal agencies who shall, in 6506): sec 204. Demonstration Cities and turn provide the information require- Metropolitan Development Act of 1966 as ments to applicants. If a State does amended (42 U.S.C. 3334)). (44 FR 37143, June 25, 1979, as amended at not choose to develop or amend its 48 FR 29136. June 24, 1983) management program to include infor- mation requirements, the applicant 930.55 Availability of mediation for ll- must, at a minimum, supply the State cense or Permit disputes. agency with the information required In the event of a serious disagree- by 930.58. ment between a Federal and State 930.57 Consistency certifications. agency regarding whether a listed or unlisted Federal license or permit ac- (a) When satisfied that the proposed tivity is subject to consistency review, activity meets the Federal Consistency requirements of this subpart, all appli- either party may request the Secretar- cants for Federal licenses or permits ial mediation services provided for in subpart G; notice shall be provi subject to State agency review shall the applicant. The existence of a seri- provide in the application to the Fed- ous disagreement will not relieve the eral licensing or permitting agency a Federal agency from the responsibility certification that the proposed activity for withholding approval of a license complies with and will be conducted in or permit application for an activity a manner consistent with the State's on an approved management program approved management program. At list (see 930.53) or individually ap- the same time. the applicant shall fur- proved by the Assistant Administrator nish to the State aqency a copy of the (see 930.54) pending satisfaction of certification. the requirements of this subpart. (b) The applicant's consistency certi- Similarly. the existence of a serious fication shall be in the following form: disagreement will not prevent the Fed- "The proposed activity complies with eral agency from approving a license (name of State) approved coastal man- or permit activity which has not re- agement program and will be conduct- ceived Assistant Administrator approv- ed in a manner consistent with such al. program." 930.56 State agency guidance and assist- 930.58 Necessary data and Information. ance to applicants; information re- quirements. (a) The applicant shall furnish the (a) As a preliminary matter, any ap- State agency with necessary data and information along with the consisten- plicant for a Federal license or permit Information along with the consisten- selected for review by a State agency cy certification. Such information and should obtain the views and assistance data shall include the following: of that agency regarding the means (1) A detailed description of the pro- for ensuring that the proposed activity posed activity and its associated facili- will be conducted in a manner consist- ties which is adequate to permit an as- ent with the State's management pro- sessment of their probable coastal gram. As part of its assistance efforts, zone effects. Maps, diagrams, technical the State agency shall make available data and other relevant material must for public inspection copies of the be submitted when a written descrip- management program document. tion alone will not adequately describe (b) The management program as the proposal (a copy of the Federal ap- originally approved or amended may plication and all supporting material describe requirements regarding the provided to the Federal agency should data and information necessary to also be submitted to the State agency). 197 National Oceanic and Atmospheric Adm., Commerce § 930.61 (2) Information required by the al license and permit activities affect- State agency pursuant to I 930.56(b). ing the Coastal zone for State agency (3) A brief assessment relating the review. State agencies shall. to the probable -coastal zone effects of the extent practicable. provide applicants proposal and its associated facilities to with a "one-stop-, multiple permit the relevant elements of the manage- review for consolidated permits to ment program minimize duplication of effort and to (4) A brief set of findftim derived avoid unnecessary delay& from the assessmen indicating that (b) A State agency objection to one the proposed activity (e.g.. project or more of the license or permit activi- siting and construction). its associated ties submitted for consolidated review facilities (e.g.. access road. support shall not prevent the applicant from buildin ), and their effects (e.g., air, receiving Federal agency approval for water. waste dIscharges, erosion. wet- those license and permit activities lands. beach access impacts) am all found to be consistent with the mano consistent with the provisions of the agement, program management program. In developing findings. the applicant shall give ap- 1930.60 Commencement of State apney propriate weight to the various types review. of provisions within the management program. While applicants must be (a) Except as provided In I 930.54(e), consistent with the enforceable. man- State agency review of an applicant's datory Policies of the management consistency certification begins at the program. they need only demonstrate time the State agency receives a copy adequate consideration, of policies of the consistency certification. and which are in the nature of recommen- the information and data required dation& Applicants need not make pursuant to 1930.58. findings with respect to coastal zone M A State agency request for Infor- effects for which the management mation or data In addition to that re- program does not contain mandatory quired by 1930.58 shall not extend the or recommended Volicie& date of commencement of State M At the request of the applicant. agency review. interested parties who have access to information and data required by sub- 0 930.61 Publk notice, paragraphs (a) (1) and (2) of this sec- (a) Following receipt of the material tion may provide the State agency described in 1 930M the State agency with all or part of the material re- shall ensure timely public notice of quired. Furthermore, upon request by the proposed activity. At a minimum the applicant. the State agency shall the provision of public notice must be provide assistance for developing the in accordance with State law. In addi- -_ --ent and findings required by tion. public notice must be provided In paragraphs (a) (3) and (4) of this sec- the immediate area of the coastal zone tion. which is likely to be affected by the W When satisfied that adequate protection against public disclosure proposed activity. Public notice shall exists. applicants should provide the be expanded In proportion to the State agency with confidential and degree of likely public interest result- proprietary inform tion which the ing from the unique geographic area State agency maintainn is necessary to involved. the substantial commitment make a reasoned decision on the con- of or impact on coastal resources. the sistency of the provosal. State agency complexity or controversy of the pro- requests for such Information must be posal, or for other good cause. related to the necessity of having such (b) Public notice shall facilitate inform tion to assess adequately the public comment by providing a sum- coastal zone effects of the propos&L. mary of the proposed activity. by an- nouncing the ava"bility for inspec- 0930.59 Mumple permitielkw. tion of the consistency certification (a) Applicants ghall to the extent and accompanying public information practicable. consolidate related Fleder- and data. and by requesting that com- 198 § 930.62 15 OR Ch. IX (1-1-93 Edition) ments be submitted to the State § 930.63 State agency concurrence with a agency. consistency certification. (c) A number of procedural options. (a) At the earliest practicable time, if permitted by State law, arr available the State agency shall notify the Fed- to State agencies to satisfy the public eral agency and the applicant whether notice requirements of this subpart. the. State agency concurs with or ob- They include. but are not 1 'imited to: jects to - a consistency certiflcadon. (1) The State agency Providing the Concurrence by the State agency shall public notice; be conclusively Presumed in the ab- (2) The State agency requiring the sence of a State agency Objection applicant to provide the public notice; within six months fOUOwin,9 com- or mencement of State agency review. (3) The State agency relying upon (b) State agencies should restrict the the public notice provided by the Fed- Period of public notice. receipt of com- eral agency reviewing the app ments. hearing proceedings and final deCision-mairin to the minimum time for the Federal license or Permit (e.g, necessary to inform the public. obtain notice of availability of NEPA environ. sufficient comment@ and develop a rea- mental impact statements) if such sonable decision on the matter. If the. notice satisfies the minimum require- State agency has not issued a decision ments set forth in paragraphs (a) and within three months following com- (b) of this section. mencement of State agency review. it (d) Federal and State- agencies are sball notify the applicant and the Fed- encouraged to issue Joint public no- eral agency of the status of the matter tices whenever possible to rainimize and the basis for further delay. duplication of effort and to avoid un- (c) If the State agency issues &.con- necessary delays. currence or is conclusively Presumed (Executive order 12372. July 14. 1982 (4-1 to concur with the applicant's consist- FR 30939). as amended April 9. 19S3 (48 pR ency certification. the Federal agency 15587): sm. 401. Intergovernmental COOP- may approve the Federal license or erstion Act of 1968. as amended (31 U.S.C. Permit application. Notwithstanding 6506); sec 204. Demonstration Cities and state agency concurrence with a con- Metropolitan Development Act of 1966 as sistency certificatiom the Federal per- amended (42 U.S.C. 3334)). mitting agency may deny approval of (44 PR 37143. June 25. 1979. as amended at the Federal license or permit applica- 48 FR 29136. June 24.19931 tion. Federal agencies should not delay processing applications Pending § 930.62 Public hearings. receipt of a State &gencY's concur- (a) At the discretion of the State rence. In the event a Federal agency agency, public notice may include the determines that an application will announcement of one or more public not be approved. it shall immediately hearings, Public hearings shall be notify the applicant and the State scheduled with a view towards (1) a,_ agency- lowing access to the consistency certi- ig3o.64 State agency objection to a con- fication and sk mpanying public in- sistency certification. formation within a reasonable time (a) If the State agency objects to the prior to the hearing. (2) facilitating applicant's consistency certification broad public attendance and ParticiPa- within six months following com- tion at the hearing. and (3) affording mencement of review, it. shall notify the applicant expeditious consider- the applicant. Federal agencY =d As- ation of the proposed activity. sistant Administrator of the objection. (b) Federal and State agencies are (b@ State agency objections must de- encouraged to hold joint public hear- scribe (1) how the proposed activity in ings in the event both agencies deter- inconsistent with specific elements of mine that a hearing on the action Is the management program and (2) al- necessary. ternative- measures (if- they exist) which. If adopted by the applicant. 199 National Oceanic and AtmosPheric Adm., Commerce § 930.72 Would permit the proposed activity to consistent with the State's manage, be conducted in a manner consistent ment program. but which the State with the management program. agency later maintains is being con. (c) During the period when the ducted or is having coastal zone ef. State agency is reviewing the consist- fects substantially different than ency certif ication. the applicant and originally proposed and, as a result, is the State agency should attempt to no longer consistent with the - States agree upon conditions. which. if met management progra= or (2) previous- by the applicant. would permit State ly deterniined not to be an activity af. agency concurrence. The parties shall fecting the coastal zone. but which the also consult with the Federal agency State agency later maintains is being responsible for approving the Federal conducted or is having coastal effects license or permit to ensure that pro- substantially different than originally posed conditions satisfy Federal as proposed and. as a result, the activity well as State management program re- affects the coastal zone in a manner quirements. inconsistent with the State's manage- (d) A State agency objection may be ment program. The State agency's' re- based upon a determination that the quest must include supporting Infor- applicant has failed. following a writ- mation and a proposal for recommend- ten State agency request. to supply ed remedial action: a copy of the re- the information required pursuant to quest must be sent to the applicant. § 903.58. If the State agency objects on (c) If. after a reasonable time follow- the grounds of insufficient infOrma- ing a request for remedial action. the tion. the objection must describe the State agency still maintains that a se- nature of the Information requested rious disagreement exists with the said the necessity of having such infor- Federal agency, either party may seek rnation to determine the consistency the Secretarial mediation services pro- of the activity with the management vided for in subpart Q of this part. program. (e) A State agency objection shall in-, Subpart E-Consistency for Outer clude a statement informing the appu-. Continental Shelf (OCS) Explore- cant of a right of appeal to the Secre-, tion, Development and Produc- tgry on the grounds described in Sub- tion Activities part H. 930.65 Federal permitting agency re. § 930.70 Objectives. sponsibility. The provisions of this subpart are Following receipt of a State agency provided to assure that all Federal U- objection to a consistency certifica.- cense and permit activities described tion, the Federal agency shall not in detail in OCS plans and. which issue the Federal license or permit affect the coastal zone are conducted -except as provided in subpart H of this in a manner consistent with approved 'part. coastal zone mnn ement programs. § 930.66 Availability of mediation for pre. § 930.71 Federal license or permit activity viously reviewed activities. described In detall. (a) Federal and State agencies shall The term Federal license or pennit cooperate in their efforts to monitor activity described in detail means any Federally licensed and permitted ac. activity requiring a Federal license or tivities In order to make certain that permit, as defined in 1930.51. which such activities continue to conform to the Secretary of the Iiiterior deter- both Federal and State requirements.. mines must . be described in detail (b) The State agency shall request within an OCS plan. that the Federal agency take appropri- ate remedial action following a serious § 930.71 Person. disagreement resulting from a State The term person mean any Individ- agency objection to a Federally U- ual. corporation. partnership. associa- censed or permitted activity which tion, or other entity organized or ex- was: (1) Previously determined to be isting under the laws of any State. the 200 § 930.73 15 CFR Ch. IX (1-1-93 Edition) Federal government, any State, re- copies of the management program gional. or local government, or any document. entity of such Federal. State. regional (b) In accordance with the Provi- or local govirnment, who submits to sions in 1930.56(b). the management the Secretary of the Interior. or desig- program as originally approved or nee following management program amended may describe requirements approval. an OCS plan which describes regarding data and information which in detail Federal license or permit ac- will be necessary for the State agency tivities. to assess the consistency of the Feder- al license and permit activities de- § 930.73 OCS plan. scribed In detail in OCS plans. (a) The term OCS plan means any §930.76 Submission of an OCS plan and plan for the exploration or develop- consistency certification. ment of. or production from any area which has been leased under the Any person submitting to the Secre- Outer Continental Shelf Lands Act (43 tary of the Interior -or designee any U.S.C. 1331 et seq.). and the regula- OCS plan shall: tions under that Act, which is submit- (a) Identify all activities described in ted to the Secretary of the Interior or detail in the plan which are subject to designee following management pro- State agency revievr. gram approval and which describes in (b) When satisfied that the proposed detail Federal license or permit activi- activities meet the Federal consistency ties. requirements of this subpart, provide M The requirements of this subpart the Secretary of the Interior or desig- do not apply to Federal license and nee with a consistency certification. permit applications filed after man- attached to the OCS plan. and the agement program approval for activi- Secretary of the Interior or designee ties described in detail in OCS plans shall furnish the State agency a copy approved by the Secretary of the Inte- of the OCS plan (excluding proprie- rior or designee prior to management tary information) and consistency cer- program approval. tification. (c) The person's consistency certifi- § 930.74 OCS activities subject to State cation shall be in the following form: agency review. The .proposed activities described In.detall Except for States which do not an- In this plan comply with (name of Staws)) ticipate coastal zone effects resulting approved coastal mana4gement program(s) from OCS activities, management pro- and will be conducted in a manner consist- gram lists required pursuant to ent with such program(s). § 930.53 shall include a reference to OCS plans which describe in detail § 930.77 Necesowy data and information. Federal license and permit activities (a) The State agency shall use the affecting the coastal zone. information received pursuant to the Department of the Zriterior's operat- §930.75 State agency assistance to per- ing regulations governing exploration. sonst information requirements. - development and production oper- (a) As. a preliminary matter, any ation3 on the OCS (see 30 CPR 250.34) person intending to submit to the Sec- and regulations pertaining to the OCS retary of the Interior and OCS plan Information program (see 30 CFR part which describes in detail Federal U. 252) to determine the consistency of cense or permit activities affecting the proposed Federal license and Permit coastal zone should obtain the views activities described in detail in OCS and assistance of the State agency re- Plan& garding the means for ensuring that (b) The person shall supplement the such activities will be conducted in a information provided by paragraph (a) manner consistent with the State's of this section by supplying the State management program. As part of its agency with: assistance efforts. the State agency (1) Wormation required by the shall make available for inspection State agency pursuant to I 930.75(b). 201 National Oceanic and Atmospheric Adm., Commerce § 930.79 (2) A brief assessment relating the (b) Following receipt of the material probable coastal zone effects of the ac- described in paragraph (a) of this sec- tivities and their associated facilities tion. the State agency shaU ensure to the relevant elements of the man- timely public notice of the proposed agement program. and activities in accordance with the direc- (3) A brief set of findings. derived tives within I J 930-61 through 930.62. from the assessment. indicating that each of the proposed activities (e.g.. § 930.79 State agency concurrence or ob. drining. platform placement) and jection. their associated facilities (e.g.. onshore (a) At the earliest Practicable time, support structures. offshore pipelines). the State agency shall notify the and their effects (eg.. air. water. waste person. the Secretary of the Interior discharge. erosion. wetlands, beach or designee and the Assistant Adminis- access impacts) are all consistent with trator of Its concurrence with or obJec- the provisions of the management pro- tion to the consistency certification. gram. In developing findings. the State agencies should restrict the person shall give appropriate weight period of public notice. receipt of com- to the various provisions within the ments. hearing proceedings and final management program in accordance decision-making to the minimum time* with the guidance provided in necessary to inform the Public, obtain 930.58(a)(4). sufficient comment, and develop a rea- W At the request of the person, in- sonable decision on the matter. If the terested parties who have access to in. formation required by paragraphs (a) State agency has not issued a decision and (b)(1) of this section may provide within three months following com- the State agency with all or part of mencement of State agency review, It the material required. Furthermore, shall notify the person. the Secretary upon request by the person. the -State of the Interior or designee and the As- agency shall provide assistance for de. sistant Administrator of the status of veloping the assessment and findings review and the basis for further delay required by paragraphs (b) (2) and (3) in issuing a final decision. Notice shall of this section. be in written form and postmarked no .(d) When satisfied that adequate later than three months following the protection against public disclosure State agency's receipt of the certifica- exists, persons should provide. the tion and supporting information. Con- State agency with confidential and currence by the State agency shall be proprietary information which the conclusively presumed if the notifica- State agency maintains. is necessa Y, to tion required by this subparagraph is make a reasoned decision on the Con- not provided. sistency of the proposed activities. (b) Concurrence by the State agency State agency requests. for such infor- shall be conclusively presumed in the mation must be related to the necessi- absence of a State agency objection to ty of having such inform tion to the consistency certification within six assess adequately the coastal zone ef-' months following commencement of f ects of the proposed activities. State agency review. § 930.78 Commencement of State agency (c) If the State agency objects to one review; public notice. or more of the Federal license or permit activities described in detail in (a) State agency review of the per- the OCS plan. it must Provide a sePa- son's consistency certilication begins rate discussion for each objection in at the time the State agency receives a accordance with the directives within- copy of the OCS plan. consistency cer. 1930.64 (b) and W. The objection tification. and required necessary data shall also include a statement inform- and information. A State agency re- ing the person of a right of appeal to quest for information and data in ad. the Secretary on the grounds de- dition to that required by, 1930.77 scribed in subpart EL shall not extend the date of com- 0 mencement of State agency review. 202 § 930.80 15 CFR Ch. IX (1-1-93 Ediflon) § 930.so Effect of State agency concur- the Person does not consolidate such rence. OCS-related permit activities with the (a) If the State agency issues a con- State agency's review of the OCS plan. currence or Is conclusively presumed. such activities will remain subject to to concur with the Person's consisten- individual State agency review under cy certification. the person will not be the requirements of subpart D of this required to submit additional consist- part. ency certifications and supporting in- (b) A State agency. objection to one formation for State agency review at or more of the OCS-related Federal 11- the time Federal applications are actu- cense or permit activities submitted ally filed for the Federal licenses and for consolidated review shall not pre- permits to which such concurrence ap- vent the person from receiving Federal plies. agency approval (1) for those OCS-re- (b) Unless the State agency indicates lated license or permit activities found otherwise. copies of Federal license by the State agency to be consistent and permit applications for activities described in detail in an OCS plan ,with the management program. and which has received State agency con- (2) for the license and permit activities currence shall be sent by the person to described in detail in the OCS plan the State agency to allow the State provided the State agency concurs agency to monitor the activities. Con- with the consistency certification for fidential and proprietary material such plan. Similarly, a State agency within such applications may be delet- Objection to the consistency certifica- ed. tion for an OCS plan shall not prevent the person from receiving Federal § 930.81 Federal permitting agency re- agency approval for those OCS-related sponsibility. license or permit activities determined Following receipt of a State agency by the State agency to be consistent objection to a consistency certification with the management program. related to Federal license or permit ac- tivities described in detail in an OCS § 930.83 Amended or new OCS plans. - plan. the Federal agency shall not If the State agency objects to the issue any of such licenses or permits person's OCS plan consistency certifi- except as provided in subpart H of this cation. and if. pursuant to Subpart H. part. the Secretary does not determine that § 930.82 Multiple permit review. each of the objected to Federal license (a) A person submitting a consisten- or permit activities described in detail cy certification for Federal license or in such plan is consistent with the ob- permit activities described in detail in jectives or purposes of the Act. or is an OCS plan is strongly encouraged to necessary in the interest of national work with other Federal agencies in security. the person shall submit an an effort to include, for consolidated amended or new plan to the Secretary State agency revie*. consistency certi- of the Interior or designee and to the fications and supporting data and in- State agency along with a consistency formation applicable to OCS-related certification and data and information Federal license and permit activities necessary to support the new consist- affecting the coastal zone which Me ency determination. The data and in- not required to be described In detail formation shall specifically describe in OCS plans but which are subjected modifications made to the original to State agency consistency review OCS plan. and the manner in which (e.g.. Corps of Engin permits . for such modificaiians will ensure that all the placement of structures on the of the proposed Federal license or OCS and for dredging and the tmns- permit activities described in detail in portation of dredged material. Envi- the amended or new plan will be con- ronmental Protection Agency air and ducted In a manner consistent with water quality permits for offshore op- the State's man& ement program. erations and onshore support and processing facilities, etc.). In the event 203 National Oceanic and Atmospheric Adm., Commerce § 930.86 § 930.84 Review of amended or. new OCS § 930.86 Failure to comply substantially plans; public notice. with an approved OCS plan. (a) After receipt Of a COPY Of the (a) The Department of the Interior amended or new OCS plan. Consisten- and State agencies shall cooperate in cy certification. and accompanying their efforts to monitor Federally li- data and information. State agency censed and permitted activities de- review shaU begin. scribed in detail OCS plans to make (b) Following receipt of the material certain that such activities continue to described in paragraph (a) of this sec- conform to both Federal and State re- tion. the State agency shall ensure quirements. timely public notice of the proposed (b) If a State agency claims that a activities in accordance with the direc- person Is failing' substantially to tives within I 1930-61 through 930.62, comply with an approved OCS plan (c) The State agency shall concur subject to the requirements of this with or object to the person's consist- Subpart, and such failure allegedly in- ency certification in accordance with volves the conduct of activities affect- the directives within 1930.79, except ing the coastal zone in a manner that that the applicable time period for is not consistent With the approved purposes of concurrence by conclusive management program. the State presumption shall be three months In- agency shall transmit its claim to the stead of six months. U.S. Geological Survey supervisor for (d) If the State agency issues a con- the area involved. Such claim shall In. currence or is conclusively presumed clude: (1) A description of the specific to concur with the person's new con- activity involved and the alleged lack sistency certification. the person will of compliance with* the OCS plan. and not be required to submit additional (2) a request for appropriate remedial consistency certifications and support- action. A copy of the claim shall be ing information for State agency sent to the person and the Assistant review at the time Federal applica- Administrator. tions are actually filed for the Federal (c) If. after a reasonable time follow- licenses and permits to which such ing a request for remedial action, the concurrence applies. State agency still maintains that the (e) Unless the State agency indicates person is failing to comply substantial- otherwise, copies of Federal license ly with the OCS plan, the governor or and permit applications for activities section 306(c)(5) State agency (see described in detail in an amended Or 1930.18) may file a written objection new OCS plan which has received with the Secretary. If the Secretary State agency concurrence shall be sent finds that the person is failln to by the person to the State agency to comply substantially with the OCS allow the State agency to monitor the plan, the person shall submit an activities. Confidential and proprie- amended or new OCS plan along with tary material within such appUcations a consistency certification and sup- may be deleted. porting information to the Secretary of the Interior or designee and to the § 930.85 Continuing State agency . objec- State agency. Following such &. finding tions. by the Secretary. the person shall If the State agency objects to the comply with the originally approved consistency certification for an amend- OCS plan.. or with interim orders ed or new OCS plam the prohibition in issued jointly by the Secretary and the § 930.81 against Federal agency ap. U.S. Geological Survey. pending &P- proval of licenses or permits for acUvi- p@oval of the amended or new OCS ties described in detail in such a plan plan. The directives within 11930-83 applies. further Secretarial review pur. through 930.85 Shall apply to further suant to subpart H may take place. State agency review of the consistency and the development of an additional certification for the amended or new amended or new OCS plan and con- Pla= sistency certification may be required Id, A penwn shall be found to have pursuant to I J 930.83 through 930.84- failed substantially to comply with an 204 § 930." 15 CFR Ch. IX (1-1-93 Edition) approved OCS , plan if the State Federal Prograrns," and implementing agency claims and the Secretary finds regulations of the review of Federal fi- that one or more of the activities de- nancial assistance to states and local scribed in detail in the OCS plan governments. which affects the coastal zone are (Executive Order 12372, July 14. 1982 (47 being conducted or are having a coast- PrR 30959). as amended April 8. 1983 (48 PR al zone effect substantially different 15587): sec. 401. Intergovernmental Coop- than originally described by the eration Act of 1968. as amended (31 U.S.C. person in the plan or accompanying 6506Y. see 204. Demonstration Cities and information and. as a result, the activi. Metropolitan Development Act of 1966 as ties are no longer being conducted in a amended (42 U.&C. 3334)). manner consistent with the State's [48 PR 29136. June 24. 19831 management program. The Secretary may make a finding that a person has § 930.94 State intergovernmental review failed substantially to comply with an pro"" for consistency. approved OCS plan only after provid- The process by which states with ap- ing a reasonable opportunity for the proved coastal management programs person and the Secretary of the Interi- may review applications from state or to review the State agency's objec- agencies and local governments for tion and to submit comments for the Federal assistance should be developed Secretary's consideration. by each state in accordance with Exec- utive Order 12372 and implementing Subpart FL-Consist*ncy. for Federal regulations- In accordance with the Assistance to State and Local Executive Order and regulations. Governments states rnay use this process to review such applications for consistency with § 930.90 Objectives, their approved coastal management The provisions of this subpart are programs. provided to assure that Federal assist- (Executive Order 12372. July 14. 1982 (47 ance to State and local governments FR 30959). as amended April 8. 1983 (48 FR for activities affecting the coastal zone 15587); sec. 401, Intergovernmental Coop- ,is granted only when such activities eration Act of 1968, as amended (31 U.S.C. 6506); see 2N. Demonstration Cities and are consistent with approved coastal Metropolitan Development Act of IM as zone managements programs. amended (42 U.S.C. 3334)). § 930.91 Federal assistance. E48 PR 29137. June 24. 19831 The term Federal a&vi3tance means § 930.96 Guidance provided by the State assistance provided under a Federal agency. program to an applicant agency a) State agencies should include through grant or contractual arrange- within the man ement program a ments. loans. subsidies, guarantees, in- listing of specific types of Federal ajs- surance, or other form of financial aid. sistance programs subject to a consist- § 930.92 Applicant agency. ency review. Such a listing, and any amendments, will 'require prior The term applicant agency means 306(c)(5) state agency (see 1930-18) any unit of State or local government. 'consultation with affected Federal or any related public entity such as a agencies and approval by the Assistant special purpose district, which. follow. Administrator. ing management program approval. (b) In the event the State agency submits an application for Federal as- choose3 to review applications for Fed- sistance. eral awd tance activities outside of the coastal zone but likely to affect the §930.93 Intergovernmental review Pm* coastal zone. the State agency must es& develop a Federal asais=ce provision The term "intergovernmental review within the man ement program gen- process" describes the procedure3 es- erally deseMbing the geographic area tablished by states pursuant to E.O. (e.g. coastal floodolain ) within which 12372. "Intergovernmental Review of Federal aaaWtance activities Will- be 205 National Oceanic and Atmospheric Adm., Commerce § 9340.98 subject to review. This provision. and (d) A State agency objection may be any refinements. Will require prior based upon a determination that the 306(c)(5) State agency consultation applicant agency has failed. following with affected Federal agencies and ap- a written State agency request. to proval by the Assistant Administrator. supply necessary information. U the W The State agency shall provide State agency objects on the grounds of copies of any Federal assistance list or insufficient information. the objection geographic provision. and any refine- must describe the nature of the infor- ments. to Federal agencies. units of mation requested and the necessity of State or local government empowered having such inform tion to determine to undertake Federally assisted activi- the consistency of the activity with ties within the coastal zone or de- the management program. scribed geographic area. (e) State agency objections shall in. clude a statement informing the appli. ('.Executive Order 12372. July 14. 1982 (47 cant agency of a right of appeal to the FIR 30959). as amended April 8. 1993 (48 PR Secretary on the grounds described in 15587); sec. 401. Intergovernmental Coop- subpart H of this part. eration Act of 196& as amended (31 U.S.C. 6506% sec 204. Demonstration Cities and (Executive Order 12372. July 14. 1982 (47 Metropolitan Development Act of 1966 as PR 30959). as amended April 8, 1993 (48 PR amended (42 UaC. 3334)). 15587): 3e--- 401. Intergovernmental Coop- . E44 PR 37143. June 25. 1979. p .edesignlted eration. Act Of 1968. as amended (31 U.S.C. and &-ended at 48 PR 29136. June 24. 1983] 6506% 3ft 204. Demonstration Cities and Metropolitan Development Act of 1966 as 11930.96 Consistency review. amended (42 U.&C. 3334)). E44 PR 37143. June 25. 1979. as amended at (a) If pursuant to the intergovern- 48 PR 29137. June 24.19831 mental review process, the State agency does not object to the proposed § 930.97 Federal assisting agency responsi- activity, the Federal agency may grant bility. the Federal assistance to the applicant, Following receipt of a State agency agency. Notwithstanding State agency, objection. the Federal agency shall consistency approval for the Proposed not approve assistance for the activity piroject. the Federal agency may deny' except as provided in Subpart H of assistance to the applicant agency.) this part. Federal agencies should not delay, processing applications pending re- § 930.98 Federally assisted activtties. out- ceipt of a State agency approval or ob- side of the coastal zone or the de- Jection. In the event a Federal agency scribed geographic area. determines that an application will (a) State agencies @should monitor not be approved. it shall immediately proposed Federal assistance activities notify the applicant agency and the outside of the coastal zone or the de. State agency. scribed geographic area (e.g.. by use of (b) If pursuant to the Intergovern.- the Intergovernmental review process, mental review process. the State review of NEPA environmental impact agency objects to the ' proposed statements, etc.) and shall Immediate- -project, the state agency shall notify ly notify applicant agencies, Federal the applicant agency. Federal agency agencies, and any other agency or and the Assistant Administrator of the office which may be identified by the objection. I state in Its intergovernmental review (c) State agency objections must de- process pursuant to F.O. 12372 of pro- scribe: (1) How the proposed project is posed activities which can reasonably inconsistent with specific elements of be expected to affect the coastal zone the management program and (2) &1- and which the State agency is review- ternative measures (if they exist) ing for consistency with the man e- which. if adopted by the applicant ment program- Notification shall also agency, would permit the proposed be sent by the SULte agency to the As- project to be conducted in a manner sistant Administrator. State agencies consistent with the man ement pro- must inform the parties of objections gram- within the time period permitted 206 § 930." 15 CFR Ch. IX 0-1-93 Edition) under the intergovernmental review determined to be consistent with the process. otherwise the State agency State's management program. . but waives its right to object to the pro- which the State agency later main- posed activity. tains is being conducted or is having a (b) If within the permitted time coastal zone effect substantially differ- period the State agency notifies the ent ;Lhan originally proposed and. as a Federal agency Of its objection to a result, is no longer consistent with the proposed Federally assisteO activity. State management program. or (2) the Federal agency shall not provide previously determined not to be a assistance to- the applicant agency project affecting the coastal zone, but except as provided in Subpart H. which the State agency later main- unless the Assistant Administrator dis- tains is being conducted or is having a approves the State agency's decision coastal zone effect substantially differ- to review the activity. The Assistant ent than originally proposed and, as a Administrator shall be guided by the result the project- affects the coastal provisions in J 930.54 W and W. zone in a manner inconsistent with the (Executive Order 12372, Ju1Y 14. 1982 (47 State's management program. The FR 30959). as amended April 8. 1983 (48 FR State agency's request, must include 155s7); sec. 401. Intergovernmental Coop- supporting information and a proposal eration Act of 1968. as amended (31 U.S.C. for recommended remedial action: 'a 6506); sec 204. Demonstration cities and copy of the request must be sent to Metropolitan Development Act of 1966 as the applicant agency. amended (42 U.S.C. 3334)). (c) If. after a reasonable time follow- C44 FR 37143, June 25. 1979. as amended at ing a request for remedial action, the 48 FR 29137. June 24, 19831 State agency still maintains that a se- § 930.99 Availability of mediation for Fed- rious disagreement exists 'with the eral assistance disputes. Federal agency, either party may seek the Secretarial mediation services pro- In the event of a serious disagree- vided for in subpart G -of this part. ment between a Federal and State agency regarding whether a Federal Subpart Q-S*cretarial M*diation assistance activity is subject to consist- ency review, either party may request § 930.110 Objectives. the Secretarial mediation services pro- The purpose of this subpart is to de- vided f or in subpart G of this part. The existence of a serious disagree- scribe mediation procedures which ment will not relieve the Federal Federal and State agencies may use to agency from the responsibility for attempt to resolve iserious disagree- withholding Federal assistance for the ments which &rise during the adminis- activity pending satisfaction of the re- tration of approved management pro- quirements of this subpart, except in grams. cases where the Assistant Administra- § 930.111. InformW negotiation& tor has disapproved a State agency de- cision to review an activity. The availability of mediation does not preclude use by the parties of al- § 930.100 Availability of mediation for ternative means for resolving their dis- previously reviewed activitie& agreement. In the event a serious- dis- (a) Federal and State agencies shall agreement arises. the parties are cooperate in their efforts to monitor strongly encouraged to make every Federally assisted activities in order to effort to resolve. the disagreement in- make certain that such activities con- formally. O-CZM shall be avaUable to tinue to conform to both Federal and assist the parties in these effort& State requirements. (b) The State agency shall request § 930.112 Request for mediadem that the Federal agency take appropri- (a) The Secretary or other head of a ate remedial action foUowing a serious 'Pederal agency, or the Governor or disagreement resulting from a State the section 306(cXS) State agency (see agency obJection to a Federally assist- 1930.18). may notify the Secretary in ed activity which was: (1) Previously writing of the existence of a serious 207 National Oceanic and Atmospheric Adm., Commerce § 930-116 disagreement, and may request that will be recorded and the hearing offi. the Secretary seek to mediate the seri- cer shall provide transcripts and copies ous disagreement. A copy of the writ- of written information offered at the ten request must be sent to. the agency hearing to the Federal and state with which the requesting agency dis- agency parties. The public may inspect agrees, and to the Assistant Adminis- and copy the transcripts and written trator. information provided to these agen- (b) Within 15 days following receipt cies. of a request for mediation the dis- agreeing agency shall transmit a writ- § 930.114 Secretarial mediation efforts. ten response to the Secretary. and to (a) Following the close of the hear- the agency requesting mediation. indi- ing, the hearing officer shall transmit cating whether it wishes to participate the hearing record to the Secretary. in the mediation process. If the dis- Upon receipt of the hearing record. agreeing agency declines the offer to the Secretary shall schedule a media- enter into, mediation efforts, it must tion conference to be attended by rep- indicate the basis for its refusal in its resentatives from the Office of the response. Upon receipt of a refusal to Secretary.. the disagreeing Federal and participate in mediation efforts, the State agencies, and any other interest- Secretary shall seek to persuade the ed parties whose participation is disagreeing agency to reconsider its decision and enter into mediation ef- deemed necessary by the Secretary. forts. If the disagreeing 'agencies do The Secretary shall provide the par- not all agree to participate, the Secre- ties at least 10 days notice of the time tary will cease efforts to provide medi- and place set for the mediation confer- ation assistance. ence. (b) Secretarial mediation. efforts § 930.113 Public hearings. shall last only so long as the Federal (a) If the parties agree to the media- and State agencies agree to partict- tion process, the Secretary shall ap- pate.'The Secretary shall confer with point a hearing officer who shall the Executive Office.of the President, schedule a hearing in the local area as necessary, during the mediation concerned. The hearing officer shall process. give the parties at least 30 days notice of the time and place set for the hear- § 930.115 Termination of mediation. ing and shall provide timely public Mediation shall terminate (a) at any notice of the hearing. time the Federal and State agencies (b) At the time public notice is pro- agree to a resolution 'of the serious dis- vided. the Federal and State agencies agreement. (b) if one of the agencies shall provide the public 'with conven- withdraws from mediation. (c) in the ient access to public data and inforraa- event the agencies fail to reach a reso- tion related to the serious disagree- lution of the serious disagreement ment. within 15 days following Secretarial (c) Hearings shall be informal and conference efforts. and the agencies shall be conducted by the hearing offi- do not agree to extend mediation cer with the obJective of securing in a beyond that period. or (d) for other timely fashion Information related to good cause. the disagreement. The Federal and State agencies, as well as other Inter- 0930.116 Judicial review. ested partim m%L offer information at the hearing subject to the hearing of- The availability of the mediation ficer's supervision as to the extent and services provided in this subpart is not manner of presentation. Unduly rep- Intended expressly or implicitl-v to etitious oral presentation roll be ex- limit the parties' use of alternate cluded at the discretion of the hearing forums to resolve disputes. Specifical- officer. in the event of such exclusion ly. judicial review where otherwise the party may provide the hearing of- available by law may be sought by any f1cer with a written submisslon of the paxty to a serious dj@mgreement with- proposed oral presentatiorL Hearir= out first having exhausted the media- 208 § 930.120 15 CFR Ch. IX (1-1-93 Edition) tion process provided for in this sub- eral license or permit activity, or a part. Federal assistance activity which, al- though inconsistent with a State's Subpart H-S*a*farial Review Relat- management program. is found by the ed to the Objectives or Purposes Secretary to be permissible because a of the Ad and National Security national defense or other national se- Interests curity interest would be significantly impaired if the activity were not per- § 930.120 Objectives. mitted to go forward as proposed. Sec- The provisions of this subpart pro- retarial review of national security vide procedures by which the Secre- issues shall be aided by information tary may find that a Federal license or submitted by the Department of De- permit activity. including those de- fense or other interested Federal agen- scribed -in detail in an OCS plan. or a cies. The views of such agencies, while Federal assistance activity, which Is in- not binding. shall be given consider- consistent with a management pro- able weight by the Secretary. The Sec- gram may be federally approved be- retary will seek information to deter- cause the activity Is consistent with mine whether the obJected-to activity the objectives or purposes of the Act. directly supports national defense -or or is neces=y in the interest of na- other essential national security obJec- tional security. tives. § 930.121 Consistent with the objectives or 9 930.123 Appellant. purposes of the Act. The term "appellant" refers to an The term "consistent with the objec- applicant. person or applicant agency tives or purposes of the Act" describes submitting an appeal to the Secretary * Federal license or permit activity, or pursuant to the provisions of this sub- * Federal assistance activity which, al- part. though inconsistent with. a State's management program. is found by the 9 930.124 Informal discussions. Secretary to be permissible because it In the event the State agency in- satisfies the following four require- forms the applicant. person or appli- ments: cant agency that It intends to object to (a) The activity furthers one or more the proposed activity. the parties of the competing national objectives should consult informally to attempt-- or purposes contained in section 302 or to resolve the matter in a manner 303 of the Act, which avoids the necessity of appeal- (b) When performed separately or ing the issue to the Secretary. 0C!2M when its cumulative effects are consid- shall be available to assist the paxties ered. it will not cause adverse effects in these discussions. on the natural resources of the coastal zone substantial enough to outweigh 9 930.125 Appeals to the Secretary. its contribution to the national inter- est. (a) An appellant may file a notice of (c) The acti@ity will not violate any appeal with the Secretary. with 30 requirements of the Clean Air Act. as days of the appellant's receipt of a amended. or the Federal Water Pollu- State agency objection. The notice of tion Control Act. as amended. and appeal shall be accompanied by a (d) There is no reasonable alterna- statement in support of the appel- tive available (e.g.. location design. lant's poattiom along with supporting etc.) which would permit the activity 'data and information. The appellant. to be- conducted in a manner consist@ shall send a copy of the notice of ent with the management program appeal and accompanying documents to the Federal and State agencies In- § 930.122 Necessary in the interest of n&- volved. tional security. (b) No extension of time will be per- The term "necessary in the interest mitted for the filing- of a notice of of national security" describes a Fed- appeal. 209 National Oceanic and Atmospheric Adm., Commerce § 930-131 (c) The Secretary may approve a stating that the agency has disap- reasonable request for in extension of proved the Federal license, permit or time to submit supporting information assistance application. so long as the request is filed with the (d) Failure of the appellant to base Secretary within the 30-day period. the appeal on grounds that the pro. Normally, the Secretary shall limit an posed activity either (1) is consistent extension period to 15 days. with the objectives or purposes of the § 930.126 Federal and State agency re- Act or (2) is necessary in the interest sponsts to appeal& of national security. (a) Upon receipt of the notice of § 930.129 Public hearing& appeal and supporting information. The Secretary may order a hearing the Federal and State agencies shall have 30 days to submit detailed com- independently or m* reponse to a re- ments to the Secretary. Copies of such quest. If a hearing is ordered by the comments shalI be sent to the appel- Secretary it shall be guided by the lant and other agency within the same procedures described within J 930.113. time period. § 930.130 - Secretarial review. (b) Requests for extensions may be made pursuant to I 930.125(c). (a) In reviewing an appeal. the Sec- retary shaU find that a Proposed Fed- § 930.127 Public notice. receipt of com- eral license or permit activity, or a ments. Federal assistance activity, is consist- (a) The Secretary shall provide ent with the objectives or purposes of timely public notice of the appeal the Act, or is necessary in the interest within 15 days of receipt of the notice. of national security', when the infor- At a minimum Public notice shall be mation. submitted supports this con- provided in the immediate area of the clusion. coastal zone which is likely to be af- (b) The Secretary shall make an rea- fected by the proposed activity. At the sonable efforts to complete consider- time public notice is provided, the Fed- ation of an appeal within go days from eral and State agencies -shall provide the date of public notice. the public with convenient access to (c) Following consideration of the copies of the appellant's notice Of appeal, the Secretary shall issue a de- appeal and accompanying public infor- cision in writing to the appeHant and mation. and to the public information to the Federal and State agencies indi- in the agencies' detailed comments. cating whether the proposed activity (b) Interested persons may submit is consistent with the objectives or comments to the Secretary within 30 purposes of the Act. or is necessary in days from the date of public notice. the interest of national security; the with copies provided to the appellant decision shall include the basis for and to the Federal and State agencies such finding. The Secretary shall pro- within the same time period. vide public notice of the decision. (c) Requests for; extensions may be (d) The decision of the Secretary made pursuant to I 930.125(c). shall constitute final agency action for 9 930.128 Dismissal of appeals. the purposes of the Admini tmtive The Secretary may dismi an Procedure Act. appeal for good cause. Good cause 1930.131 Federal agency responsibility. shall include, but is not limited to: (a) Failure of the appeELant to (a) If the Secretary finds that the submit a notice of appeal within the Proposed activity is consistent with required 30-day period. the objectives or purposes of the Act, (b) Failure of the aPpeEAnt to Or is. necessary in the interest of na- submit the supporting information tional security. the Flederal agency within the required period' or ap- may approve the activity. proved extension period; (b) If the Secretary does not make (c) Secretarial receipt of a detaffed either of these findings. the Federal comment from the Pederal agency agency shall not approve the activity. 210 § 930.132 15 CFR Ch. IX (1-1-93 Edition) 1930.132 Review initiated by the Secre. Subpart I@Assisfant Administrator tary. Reporting and Continuing (a) The Secretary may choose to Review of Federal Actions Sub- consider whether a Federal license or jed to the Federal Consistency permit activity, or a Federal assistance Requirements activity, is consistent with the objec- tives or purposes of the Act. or is nec- § 930.140 Objectives. essary in the interest of national secu- rity. Secretarial review may be initiat- The provisions of this subpwt pro. ed either before of after the comple- vide procedures to Permit interested tion of State agency review. The Sec- parties to notify the Assistant Admin- retary's decision to review the activity istrator of Federal actions (a) believed may result from an independent con- to be inconsistent with an approved cern regarding the activity or a re- Management program but which are quest from interested parties. If the not so found by the Federal or State Secretary decides to initiate review, reviewing agency, and M believed to notification shall be sent to the appli- have been incorrectly determined to cant. person or applicant agency, and be inconsistent with an approved man. to the Federal and State agencie& The agement program. This subpart also notice shaU include a statement de- provides for the reporting of any ]Fed. scribing the reasons for the review and eral actions found by the Assistant Ad. shaU contain a request for submission ministrator to be inconsistent with an of detailed comments to be submitted approved management program and within 30 days from receipt of the no- for the performance review of State tificatlon. Copies of comments shall be implementation of the Federal consist. exchanged among the parties. ency provisions of this part. (b) Requests for extensions may be 1930.141 Notification of Federal actions made pursuant to I 930.125(c). believed to be inconsistent with ap. 9930.133 Public notice: receipt of com- proved nuumpment progranuL ments; public hearings. (a) Interested parties are invited to (a) Upon receipt of detailed com- submit to the Assistant AdTnin' tmtor ments from the parties. the Secre detailed comments related to the al- tary leged inconsistency of Federal activi- shall provide pubUc notice and request ties including development projects. public comments in accordance with Federal Ucense. or permit activities, in. the provisions in 1930.127. cludina those described in detail in (b) The Secretary may order a hear. OCS plans, and Federal assistance ac. ing in accordance with the provisions tivities which are subject to the re- in 1930.129. quirements of this part, and which § 930.134 Secretarial review; Federal have not been found by a Federal agency responsibility. agency or State agency to be inconsist- ent with an approved management (a) Secretarial reviewshall be under- program Copies of such comments taken in accordance with the provi. should be sent to relevant Federal and sions in 1930.130. State agencies. and to the applicant, (b) Federal agencies are responsible person or applicant agency as appro- for adhering to the provisions in Pri'Lte- § 930.131 when deciding to approve or M Comments need not conform to deny an application for an activity ob- any particular form. but should be Jected to by a State agency and inde- specific, substantive and factual. and pendently reviewed by the Secretary. must describe how the Federal action is or would be t with an W proved managem program (c) 0 ra we uraged to --d or alterna- tives to the existing or propowd action 211 National Oceanic and Afm*$Ph*ric Adm.r Commerce Pt. 931 which would enable it to be consistent with an approved management pro- with the management program. gram. (d) The Assistant Administrator shall assure Uiat public information § 930-145 Review of the implementation of within such comments is made avail- Federal consistency provisions. able for public impfttion. As Part of the responsibility to con- §930.142 Notification of Federal action, duct a continuing review of approved management programs. the Assistant believed to have been incorrectly deter' Administrator shall review the per- mined to be inconsistent with an ap. formance of each State's implementa- proved management program. tion of the Federal consistency provi- (a) Interested Parties are invited to SiOns In this part. The Assistant Ad- submit to the Assistant Administrator ministrator shall use information re- detailed comments related to Federal ceived pursuant to this subpart to license and permit activities, including evaluate instances where a State those descrIbed in detail in OCS plans, agency is believed to have either failed and Federal assistance activities which to object to inconsistent Federal ac- are believed to have been incorrectly tions. or improperly objected to con. determined by a State agency to be in. sistent Federal actions. This evalua- consistent with an approved manage- tion shall be incorporated within the ment program Copies of such com. Assistant Admini trator's general ef. ments; should be sent to the relevant forts to ascertain instances where a Federal and State agencies, and to the State has not adhered to its approved applicant, person, or applicant agency management program and such lack of as appropriate. adherence is not justified. (b) Comments need not conform to any particular form but should be specific, substantive, and factual, and ART 931-COASTAL ENERGY must clearly describe the basis for the IMPACT PROGRAM belief that the State agency has incor- rectly objected to the Federal action Subp4w A-4kwerel on the grounds of its inconsistency with the management program. See. (c) The Assistant Administrator 931.1 Coas Energy Impact Prg&=- shall assure that public information general d ption. within such comments is made avail- 931.2 ObJecti of the CEIP. able for public inspection. § 930.143 Assistant Administrator report. 931.9 Index to def tio ing. 931.10 Act. After considering the views of inter- 931.11 Co--W zo 931.12 Flund. ested parties. the relevant Federal 931.13 Coastal energy vity. agency, State agency. and the appli. 931.14 Significantly cant, person, or applicant agency, as 931.13 New or e ded astal energy ac. appropriate, the Assistant Administra- tivity. tor shall determine whether the Ped- 931.16 Outer C en &I Sh eral action will be Included in the 931.17 Outer ntinenw, She energy ac- annual report listing of inconsistent tivity. Federal actiona. 931.18 Ene facility. 931.19 Ne or expanded energy f § 930.144 Assistant Administrator advisory 931.20 U t of general purpose 1 gov- statement& 931.21 nit of local government Upon request. the Aubtant, Admin- 931. NOAA and OCZ3L istrator may issue an advisory state- 931. Assistant Administrator. ment prior to the inuance of the 931 4 NEPA and EISL annual report indicating whether a Subpart Cp4kok 11111@611111 Federal action will be listed within the annual report as being Inconsistent 931.23 Eligible coastal State. 212 § 931.1 15 CFR Ch. IX (1-1-93 Edition) Sec. Sec. 931.26 Satisfactory progress. Subpart H-Lateral Seaward Boundaries 931.27 Eligibility determination. 931.80 General. Subpart D-Coastal Energy Impact Grants 931.81 Establishment of delimitation lines when agreements exist between States. 931.30 General. 931.82 Establishment of delimitation lines 931.31 Objectives. when no agreements exist between 931.32 Definitions. States. 931.33 Eligibility for financial assistance 931.83 Establishment of delimitation lines under this subpart. under later compacts or agreements. 931.34 Allowable uses. 931.84 Procedures for defining delimitation 931.35 Section 308(c) allotment. lines by equidistance principles. 931.36 Application for financial assistance. 931.85 Formula grants impounded for dis- 931.37 Limitations on expenditures. puted areas. Subpart E Financing Public Facilities and Subpart I-General Provisions Public Services 931.90 Allowable costs. 931.40 General. 931.91 Admimistrative procedures. 931.92 (Reserved) 931.41 Objectives 931.93 Other Federal requirements. 931.42 Definitions. 931.94 Environmental review. 931.43 Eligibility. 931.95 Records. 931.44 Allowable uses. 931.90 Audit 931.45 Credit assistance inventory. 931.97 Recovery of funds. 931.46 Allotment formula. 931.98 0ther sources of Federal funding. 931.47 Allotment of credit assistance. 931.99 Coordination with State coastal 931.48 Recall and reversion of allotted zone management agency. credit assistance. 931.49 Application for recalled or reverted Subpart J-Intrastate Allocation of Financial credit assistance. 931.50 Application for financial assistance Assistance to provide public facilities and services. 931.110 General. 931.51 Special requirements for section 931.111 Objective. 308(dXD loans. 931.112 Intrastate Allocation. 931.52 Special requirements for section 931.113 Forms of assistance. 308(d)(2) Federal guarantees. 931.114 Appeal to Assistant Administrator. Subpart F-repayment Assistance Subpart K-Allotment of Section 308(b) 931.60 General. Formula Grants 931.61 Objectives. 931.62 Definitions. 931.120 General. 931.63 Purposes. 931.121 Definitions. 931.64 Sources of repayment assistance. 931.122 OCS regions. 931.65 General eligibility. 931.123 Impacted State. 931.66 Reports. 931.124 Eligibility 931.67 Review for repayment assistance. 931.125 Allotment of section 308(b) formu- 931.68 Award of repayment assistance. la grants. 931.69 Appeal procedure. 931.126 Recall of formula grants. AUTHORITY; Sec. 308, Coastal Zone Man- Subpart G-Grants for Unavoidable Losses of agement, Act of 1972 (Pub. L. 92-583, 86 Valuable Coastal Environmental and Rec- Stat. 1280. 16 U.S.C. 1451 et seq.), as amend- reational Resources ed by Pub. L. 95-327, unless otherwise noted. 931.70 General. Source 44 FR 29584. May 21. 1979, unless 931.71 Objectives. otherwise noted. 931.72 Definitions. 931.73 Eligibility. 931.74 Allowable uses. Subpart A--General 931.75 Allotment of section 308(dX4) envi- ronmental and recreation grants. 931.1 Coastal Energy Impact Program- 931 76 Reversion of allotted funds general description. 93 .77 Application for environmental and The Coastal Energy Impact Program recreational grants. 931.78 Limitations. (CEIP) was established under section National Oceanic and Atmospheric Adm., Commerce § 932.1 TA=Total amount available under section year that fol1ows the fiscal year in which the funds were awarded to the 308(b). State, the State will have sixty (60) the ere awarded t he F=Formula amount for that State. days to resubmit an application for SF=Sum of the formula amounts that ex- these funds. If a substitute application ceeds 2 percent of the amount available. is not submitted within this time S=Number of States where formula amount these funds. SUbStit e application exceed 2 percent. period the funds will be subject to re- (4) Maximum amount. If after the covery under 931.97. Funds recovered calculations performed in paragraphs under this section and 931.97 will be (c)(1) and (3) of this section any coast- reallotted among eligible coastal al State would receive an allotment States as soon as practicable. that is greater than 37 1/3 percent of =a oon as practicable. the amoount available, the Assistant (44 FR 31011, May 30. 1979) Administrator shall reduce the allot- ment of that State to 37 1/2 percent of PART 932-COASTAL ZONE the amount available. ENHANCEMENT GRANTS PROGRAM (5) Redistribution. Any amount not allotted by virtue of application of Sec. paragraph (c)(4) of this section will be 932.1 General. reallotted proportionally among those 932.2 Objectives. coastal States that at this point in the 932.3 Definitions. calculation receive an allotment great- 932.4 Allocation of section 309 funds. 932.5 Criteria for section 309 project selec- er than 2 percent but less than 37 1/2 tion. percent of the amount available. For 932.6 Pre-application procedures. purposes of this paragraph "reallotted 932.7 Formal application for financial as- proportionally" means allotment in ac- asistamce and application review and ap- cordance with the provisions of Para- proval procedures. graph (c)(1) of this section except that 932.8 Revisions to assessments and strate- only those States that receive an allot- gies. ment greater than 2 percent and less AUTHORITY: Section 309 of the Coastal than 37 1/2 percent will participate in Zone Management Act. as amended (16 the calculations described in that U.S.C. 1456). paragraph. Source 57 FR 31116, July 14, 1992, unless (44 FR 29584, May 21, 1979: 44 FR 31011, otherwise noted. May 30, 1979) § 932.1 General. § 931.126 Recall of formula grants. (a) The purpose of this part is to set (a) Except as provided in subpart C, forth the criteria and procedures for funds allotted under this subpart will awarding coastal zone enhancement remain available for application by the grants under section 309 of the Coast- recipient coastal State until Septem- al Zone Management Act, as amended ber 30, 1988. Funds not applied for by (16 U.S.C. 1456). This part describes this date will be returned to the the criteria States must address in de- United States Treasury. veloping and implementing coastal (b) Funds allotted under his sub- zone enhancement objectives, the pro- part and which have been awarded to cedures for allocating section 309 a State must be expended or commit- funds between weighted formula and ted by the State by the end of the individual review of proposals of spe- fiscal year immediately following the cial merit, how the amount of section fiscal year in which such funds were 309 weighted formula grants will be awarded or be subject to recovery determined, the criteria NOAA will under 931.97. use to evaluate and rank individual (c) If an application for which funds proposals of special merit and the have been committed by a State is procedures for applying for financial withdrawn either within sixty (60) assistance under section 309. days before the end of the fiscal year (b) A coastal State with an approved that follows the fiscal year in which program under section 306 of the the funds were awarded to the State, Coastal Zone Management Act or anytime after the end of the fiscal (CZMA), as amended (16 U.S.C. 1453), 213 § 932.2 15 CFR Ch. IX (1-1-93 Edition) is eligible for grants under this part if cut Avenue. NW., suite 724, Washing- the State meets the following require- ton, DC 20235. ments: (1) The State must have a NOAA ap. 9 932.2 Objectives. proved Assessment and Strategy, sub- (a) The objective of assistance pro- mitted in accordance with NOAA guid. vided under this part is to encourage ance and 15 CFR 932.8; each State with a federally-approved (2) The State must be found to be coastal management program to con. adhering to its approved program and tinually improve its program in speci. must be making satisfactory progress fied areas of national importance. The in performing grant tasks under sec. Secretary is authorized to make granta tion. 306, as indicated by not being to a coastal State for the development under interim or final sanctions: and and submission for Federal approval (3) The State must be making satis, of program changes that support at- factory progress in carrying out its tainment of one or more coastal zone previous year's award under section enhancement objectives. 309. (b) As required by section 309(a) of (c) If the Assistant Administrator the Act. for purposes of this part, the finds that a State is not undertaking term "co%Lqtal zone enhancement ob- the actions committed to under the jective" means any of the following terms of a section 309 grant, the As. sistant Administrator shall suspend objectives: the State's eligibility for future fund- (1) Protection. restoration. or en- ing under this section for at least one hancement of the existing coastal wet- year. lands base, or creation of new coastal (d) A State's eligibility for future wetland& funding under this section Will be re- (2) Preventing or significantly reduc. stored after the State demonstrates. to ing threats to life and destruction of the satisfaction of the Assistant Ad- property by eliminating development ministrator, that it will conform with and redevelopment in high-hazard the requirements under this part. areas. managing development in other (e) Funds awarded to States under hazard areas. and anticipating and section 309 are for the enhancement managing the effects of potenthd sea of existing coastal zone management level rise and Great Lakes level rise. programs. A State which reduces over- (3) Attaining increased opportunities all State financial support for its CZM for public access, taking Into account program as a result of having been current and future public access needs. awarded section 309 funding may lose to coastal areas of recreational, histor- eligibility for funding under section icaL aesthetic, ecological. or - cultural 309 in subsequent years. value. M All applications for funding (4) Reducing marine debris entering under section 309 of the CZZAA. as the Nation's Coastal and ocean envi- amended. including proposed work ronment by managing uses and activi- program, funding priorities and fund- ties that contribute to the entry of ing awards, are subject to the adminis- such debri& trative discretion of the Assistant Ad- (5) Development and adoption of ministmtor and any additional NOAA procedures to assess consider, and guidance. control cumulative and secondary im- (s) Grants awarded under section pacts of coastal growth and develop- 309 may be used to support up to 100 ment, including the collective effect percent of the allowable costs of ap- proved projects under section 309 of on various individual uses or activities the C2aWA. an amended. on coastal resources, such an coastal (h) All aipVlication forms am to be wetlands and fishery resources. requested from and submitted to.. Ng, (6) Preparing and spe, tional Oce&Wc and Atmospheric Ad- ci&I are& PIAM for Impor- min' tration. Office of Ocean and tant coastal areas. Coastal Resource Management. Co&sV (7) Planning for the use of ocean re- al Programs Division. 1825 Conneeti- sourem 214 National Ocoanic and Atmosphoric Adm., Commorce § 932.3 (8) Adoption of procedures and en- proved by NOAA in accordance with forceable policies to help facilitate the guidance on Assessment's and Strate. ,siting of energy facilities and Govern- gies issued by NOAA (hereafter re- ment facilities and energy-related ac- ferred to as the guidance 1). that iden- tivitie3 and Government activities tifies the State's Priority needs for im. which may be of greater than local sig- provement with regard to the coastal nificance. zone enhancement objectives. The As. sessment determines the extent to § 932.3 Definitions. which problems and opportunities (a) Program change means "routine exist with regard to each of the coast. program implementation" as defined al zone enhancement objectives and in 15 CPR 923.84 and "amendment" as the effectiveness of efforts to address defined in 15 CPR 923.80, and includes those problems. The Assessment in. the following, cludes the factual basis for NOAA and (1) A change to coastal zone bound. the States to determine the priority aries that will improve a State's ability needs for improvement of manage- to achieve one or more of the coastal ment program In accordance with zone enhancement objectives. this part. (2) New or revised authorities, in-. (c) Strategy means a comprehensive, cluding statutes, regulations, enforcea- multi-year statement of goals and the ble Policies, a mini tive decisions, methods for their attainment. pre. executive orders. and memoranda of pared by a State in accordance with agreement/understanding, that will NOAA guidance and these regulations improve a State's ability to achieve and approved by NOAA. that sets one or more of the coastal zone en- forth the specific program changes hancement objective& the State will seek to achieve in one or (3) New or revised local coastal pro- more of the coastal zone enhancement grams and implementing ordinances objectives. The Strategy win address that will improve a State's ability to only the priority needs for improve- achieve one or more of the coastal ment identified by the Assistant Ad. zone enhancement objectives. mini trator. after careful consultation (4) New or revised coastal land ac- with the State. The strategy will In- quisition. management and restoration clude specific task descriptions, cost program that improve a State's abili- estimates and milestones, as appropri- ty to attain one or more of the coastal ate. zone enhancement objective& (d) Weighted Formula Project means (5) New or revised Special Area Man- a project or task for which NOAA agement Plans or Plans for Areas of awards funding based on the criteria Particular Concern (APC), including at 15 CPR. 932.5(a). Such ta3ir are es- enforceable policies and other neces- sential to meeting the milestones and sary implementing mechanisms or cri- objectives of each state's strategy. As teria and procedures for designating funding for weighted formula tasks is and managing APCs that will improve more predictable than for projects of a State's ability to achieve one or more special merit. basic functions neces- of the coastal zone enhancement ob- sary to achieve the objectives of the Jectives. strategy. such as hiring of full time (6) New or revised guidelines, proce- staff should be included in weighted dures and policy documents which am formula tasks. formally adopted by a State and pro- (e) ProJects of Special Merit (PSM) vide specific Interpretations of en- meang a project or task that NOAA forceable C2M policies to applicants. will rank and evaluate based on crite- local governments and other agencies ria at 15 CPR 932.5(b). As PEW funds ,that will result in meaningful improve- ments In coastal resource nuumement NOAA guidance Is available from the and that will Improve a State's ability Office of Ocean and Coastal 39esource Man- to attain one or more of the coas*.-" agement. Coastal Programs, DivisiaL Uni- zone enhancement obJecUves. versal South 144,11dins; room 724. 1825 Con- (b) Assessment means; a PubUc docu- necticut Avenue. Nw.. washington. DC ment@ prepared by a State and &W 2023L U140 0-91-9 215 § 932.4 15 CFR Ch. IX (1-1-" Edition) will be awarded competitively on an awarded to eligible coastal States for annual basis. these projects should projects of special merit. This determi- further the objectives of the strategy nation will take into account the total but may not be essential to meeting amount appropriated under section specific befichmarks in the strategy. 318(a)(2) of the CZMA. as amended. PSM projects should not be dependent (d) Weighted formula funding. (1)(1) on long term levels of funding to suc- A weighted formula funding target ceed. will be determined for each State that (f) Fiscal needs means the extent to meets the eligibility requirements at which a State must rely solely on Fed- 15 CPR 932.1(b). The weighted formu- eral funds to complete a project under la funding target will be the State section 309 because State funds are base allocation determined by the ap- not otherwise available. plication of the formula at 15 CPR (g) Technical needs means the 927.1(c), multiplied by a weighting extent to which a State lacks trained factor derived from the Assistant Ad- personnel or equipment or access to ministmtor`3 evaluation and ranking trained personnel or equipment to of the quality of the State's Strategy complete a project under section 309. (as described in (dXD of this section), (h) Assistant Administrator means as supported by the States Assess- the Assistant Administrator for Ocean ment. Services and CossW Zone Manage, (ii) The application of the weighting ment, or the NOAA Official resPOnst- factor may result in a weighted formu- ble for directing the Federal Coastal la funding target that Is higher or Zone Management Program lower than the State's base allocation. Each State's weighted formula fund- § 932.4 Allocation of section 309 funds. ing target will be adjusted to reflect (a)(1) As required by section 309(e) the funds available. of the Act. a state will not be required (III) The Assistant Administrator to contribute my portion of the cost may establish minimum and maximum of any proposal for which funding is weighted formula funding targets awarded under this section. under 15 CPR 932.4(d). (2) As required by section 309(f) of (2) The Assistant tor will the Act, beginning in fiscal year 1991, determine each State's weighting not less than 10 percent and not more factor based on an evaluation and than 20 percent of the amounts appro- ranking of the States Strategy that priated to implement sections 306 and takes into consideration the following.* 306A of the Act shall be retained by (1) The scope and value of the pro- the Secretary for use in implementing posed program change(s) contained in this section. up to a mazirnum of the Strategy in terms of improved $10,000,000 annually. coastal resource managment-: (b) The Assistant Administrator will (U) The technical merits of the annually determine the amount of Strategy in terms of project design funds to be devoted to section 309. and cost effectiveness; which shall be not less than 10 percent (III) The likelihood of success that nor more than 20 percent of the total the State will have in attaining the amount appropriated under section proposed program change(s), Including 318(a)(2) of the Coastal Zone Manage- an evaluation of the State's past per- ment Act. as amended (16 U.S.C. formance and support for the Strate- 1464), taking into account the total gr, and. amount appropriated under section Uv) The final and technical needs of 318(a)(2). The total amount of funds the State to be devoted to section 309 -gh-11 not (3) Each StaW will be- notified indi- exceed $10,000,000 annually. . vidually of its weighting factor. the (c) Of the total amount determined reasons for assigning, this weighting in paragraph (b) of this section, the factor, and any changes thereto. In Assistant Administrator will annually co with the Assistant Ad- determine the proportlon. to be award- inin' trator, a State may choose to ed to eligible coastal States by weight- make substantive changes to its ap- ed formula and the proportion to be proved and Strategy to izn- 216 HatiOncl Oceanic and Atmospheric Adm, Commerce § 932.5 prove its weighting factor, in accord. M The State hag subraitted the re- ance with the procedures at 15 CFR quired project information a3 sPecifted 932.8. in 15 CFR 932.6(b)(1). (e) Funding for Projects of special (2) In reviewing projects that wiU be merit. The Assistant Administrator considered under the weighted formu. will award the remaining section 309 la. the Assistant Administrator will funds, which are not awarded under 15 take into consideration the fiscal and CPR 932.4(d), to States based on an technical needs of proposing States annual evaluation and ranking of and the overall merit of each proposal projects of special merit. as defined in in terms of benefits to the public. 15 'CFR 932.3(d). Ftinding of projects (b) Section 309 criteria for evalua. of special merit will be limited to the tion and ranking of Projects of special highest ranked projects based on the merit. (1) After determining those criteria at 15 CFR 932.5(b). projects that win be funded under M The Assistant Administrator will weighted formula funding, the Assist. notify each State annually of the total ant Administrator Will evaluate and amount of funds to be devoted to sec. rank State funding proposals of spe. tion 309 pursuant to 15 CPR 932.4(b), cial merit which may be funded under the proportion to be awarded by 15 CFR 932.4(e). weighted formula pursuant to 15 CPR (2) In addition to meeting the crite- 932.4(c). the State's weighted formula ria in paragraph (a)(1) of this section. funding target pursuant to 15 CPR proposals will be evaluated and ranked 932.4(d). and the total amount of under this subsection using the follow. funds available for funding for ing criteria: projects of special merit pursuant to M Merit. (90 points) The Assistant 15 CPR 932.4(e). Administrator will review each appli. cation to determine the following. § 932.5 Criteria for section 309 project se- (A) Degree to which the project sig. lection. nificantly advances the program im. (a) Section 309 criteria for weighted provements and leads to a program formula funding. (1) For those change identified in the State's Strate- projects that will be funded by weight, gy. In making this determination. the ed formula. the Assistant Administra- Assistant Administrator shall consider tor will determine that: the weighting factor derived from the Q) The project is consistent with the evaluation of the quality of the State's State's approved Assessment and Strategy, as supported by the State's Strategy and advances the attainment Assessment, relative to the weighting of the objectives of the Strategy; factors assigned to other eligible 01) Costs are reasonable and neces. States; sary to achieve the objectives of both (B) Overall benefit of the project to the project and the Strategy. Allow- the public relative to the project's ability of costs will be determined in cost; accordance with the provisions of (C) Innovativeness of the proposQ: OM33 Circular A-87: Cost Principles (D) Transferability of the results to for State and Local Governments 2: problems in other coastal States: and Ull) The project is technically sound; M The State's past performance Uv) The State has in effective plan under section 309. to ensure proper and efficient adminis. (ii) Fiscal needs. (5 points) The Aa- tration of the project; and sfigtant r will review each application to determine the "fiscal needs" of a State as defined in 15 CPR OM33 Circular A-V: Cost Principles for 932.3(e). State and Local Governments in availahle Ull) Technical needL (3 points) The from the Office of Ocean and Coastal Re. source Management. Policy Coordination Assistant tor will review Division. Universal South Building. room each application to determine the 701. 1825 Connecticut Avenue. NW.. Waah- "twhniW needs" of a State an defined ft"Un. DC 20235. in 15 CPR 932.3(f). 217 § 932.6 15 CFR Ch. IX (1-1-93 Edition) W Section 309 funds not awarded to (ii) Supplies and overhead; States under I 932.5(a) will be awarded (III) Travel; to States under 15 CPR 932.5(b). Uv) Equipment (pursuant to 15 CFR § 932.6 Pre-application procedures. part 24% M Projects, studies and reports; and (a) Pre-submission consultation. (vi) Contractual costs including sub- Each State is strongly encouraged to contracts. subawards, personal service consult with the Assistant Administra- contracts with Individuals, memoranda tor prior to the submission of its draft Of alleement/understanding, and proposal (see 15 CPR 932.6(b)) and other forms of passthrough funding formal application for section 309 for the Purpose Of carrying out the funding. The purpose of the consulta- provisions of section 309. tion will be to determine whether the (3) Funds may not be used for land proposed projects are consistent with acquisition or low cost construction the purposes and objectives of section Projects. 309 and with the State's approved (4) The State may recommend which Strategy, to resolve any questions con- projects should be funded by weighted cerning eligibility for funding under formula under 15 CPR 932.5(a) and section 309 (see 15 CPR 932.1(b)), and which projects should be funded as to discuss preliminarily the State's rec. Projects of special merit under 15 CTR ommendations regarding which 932.5(b). projects should be funded by weighted (5) The draft proposal sball contain formula and which projects should be documentation of fiscal needs and individually evaluated and ranked as technical needs. if my. This documen. projects of special merit. tation shall include: W Draft ProposalL States shall (I) For fiscal- needis. Inform tion on submit draft proposals for section 309 the current State budget (surplus or funding annually on a schedule to be deficit), the budget of the applying determined by the Assistant Adminis- agency (increase or decrease over pre- trator. These draft proposals shall vious fiscal year), future budget pro- contain all of the information needed Jections. and what efforts have been for final application. including the fol- made by the applying agency, if any, lowing, to secure additional State funds from (1) A clear and concise description of the Legislature and/or from off- the projects that the State proposes to budget sources such as user fees; and be funded under section 309. This de- (ii) For technical needs. identifica- scription shall explain the relationship tion. of the technical knowledge, AM of each proposed project to the State's and equipment that are needed to approved Assessment and Strategy carry out proposed projects and that and how each proposed project will ac- are not available to the applying complish all or part of a program agency. and what efforts the applying change that the State has identified in agency has made, if any, to obtain the its Strategy. In addition. each project trained personnel and equipment it description shall Include: needs (for example, through agree- (I) A specific timetable for comple- ments with other State agencies). tion of each project; (6) The Assistant Administrator may (ii) A description of the activities request additional documentation of that will be undertaken to complete fiscal and technical needs. each project and by whom; (7) Following the first year of fund- (III) The Identification of any ing under section 309, the draft pro- subawardees, pursuant to 15 CM posal sh-11 describe how the past 923.95(d)(3)(U); and year's work contributed to the attain- (iv) The estimated total cost for ment of a program change as defined each project. in 15 CPR 932.3(a) in one or more of (2) Section 309 funds may be used the coastal zone enhancement objec- for any of the followina allowable uses tives. which support the attainment of a (8) U the wilm of estimated project program change. Comm for projects the State recom- (I) Personnel costm mends be funded under 15 CPR 218 National Oceanic and Atmospheric Adm., Commerce § 932.8 932.5(a) exceeds the State's weighted (c) Applications will be reviewed for formula funding target pursuant to 15 conformance with the regulations at CPR 932.4(d), NOAA shall determine. subpart J of 15 CPR Part 923. in consultation with the State, which (d) States will be notified of -their projects are appropriate for funding section 309 awards at the time they with weighted formula funds. are notified of their section 306/306A (c) Review of draft proposals. (1) awards. The Assistant Administrator will make (e) If the Assistant Administrator the final determination of which seeks technical advice pursuant to 15 projects should be funded by weighted CPR 932.6(c)(2). anonymous copies of formula and which projects should be the project reviews provided to the As. funded as projects of special merit. sistant Administrator on projects pro. taking into account the State's recom- posed by a State will be made avail. mendations. able to the State upon request after (2) The Assistant Administrator may October 1 of each year. seek advice from technical experts In the fields of the coastal zone enhance. § 932.8 Revisions to assessments and strat- ment objectives as to the technical ecies. soundness and overall merit of section (a) A State, in consultation with the 309 project proposals. Assistant Administrator, may propose (3) The Assistant Administrator wUl to revise its approved Strategy. make the final determinations On Revision(s) to an approved Strategy project selection using the criteria at must be submitted to and approved by 15 CFR 932.5(a) and evaluate and rank the Assistant Administrator prior to projects of special merit based on the the initiation of the contemplated criteria at 15 CPR 932.5(b). change. (4) If the Assistant Admini trator (b) The Assistant Administrator will determines that a State's project review such proposed revision(s) and proposal(s) for weighted formula fund- determine if public review and com- ing fails to meet the criteria at 15 CPR ment is required. This determination 932.5(a), the Assistant Administrator will be based on the extent to which may either reduce or deny the amount the proposed revision(s) changes the available to the State under 15 CPR original scope of the State's Strategy. 932.4(d). (c) If the Assi tan Administrator (5) Each state will be notified of the determines that public review and -results of the review of draft ProPos- comment is necessary, he/she will als, as described in paragraphs (c) (3) notify the State of his/her determina- and (4) of this section. in time to in- tion. The State wUl be required to pro- clude approved section 309 projects in vide public review and comment in ac- their applications for financial assist- cordance with NOAA guidance. ance pursuant to subpart J of 15 CPR (d) A State that wants to revise sub- part 923. stantively the program changes identi- fied in its approved Strategy or to ad- § 932.7 Formal application for tinancial dress new enhancement objectives not assistance and application review and identified as a priority in the original approval procedure& Assessment, also must revise the As- (a) Applications for financial assist- sesament through a public process as ance under this part must be devel- described in NOAA's guidance. oped and submitted on the same (e) The Assistant Administrator, in schedule as applications for financial consultation with the State, may assistance under subpart J of 15 C7R reduce a state's weighting factor as- part 923. signed to its Strategy an a result of (b) Applications for financial assist- failure to meet the milestOnes in Its ance under this part must be in aseps- StrategY- rate section of the application and (f) The Assistant r Will must contain the information speci- notify the State of his/her decision to fied at 15 CPR 932.6(bXD for each aw approve or deny the Provased proved section 309 project. revision(s) to the Strategy. and any 219 § 933.1 15 CFR Ch. IX (1-1-93 Edition) change in the weighting factor as- basic intent of both subsections IS to signed to its Strategy. fund research, study, and training which supports the developm t and which supports the development and administration of state coastal zone PART 933-COASTAL ZONE MAN- management programs. However, AGEMENT RESEARCH AND TECH- there is a significance differenc in NICAL ASSISTANCE focus between the two subsections in that State grants pursuant to subsec- Subpart A-General tion 310(b) will be awarded to State coastal zone development or manage- Sec. ment agencies for the purpose of 933.1 Basic purposes. meeting State-specific research. study 933.2 Definitions. and training needs, while the national Subpart B-National Research and Technical program Pursuant to subsection 310(a) Assistance Program will work with a variety of entities and will endeavor to address needs which 933.10 General. are regional or national in scope. 933.11 Eligible entities and arrangements. (b) comment. Statutory citation. 933.12 Use of funds. subsection 310(a): Subpart C-Operation of National Research The Secretary may conduct a program of and Technical Assistance Program research study. and training to support the development and implementation of manage- 933.20 Priorities and annual spending ment programs. * * * The Secretary may plans. enter into contracts or other arrangements 933.21 Funding arrangements. with any qualified person for the purposes of carrying out this subsection. Subpart D-State Grants for Research nd Technical Assistance (c) Comment. Statutory citation, subsection 310(b): 933.30 General. 933.31 Eligible entities. The Secretary may make grants to coastal 933.32 Use of funds. states to assist such states in carrying out 933.33 Funding Priorities. research, studies, and training required with resoect to coastal zone management. Subpart E-Apllication for State Research and Technical Assistance Grants 933.2 Definitions. 933.40 General. (a) The term Act means the Coastal Zone Management Act or 1972, as 933.41 Applicant responsibility. amended. 933.42 Application procedure. amend 933.43 Approval of applications. (b) The term Secretary means the 933.44 Amendments. Secretary of Commerce or his/her des- 933.45 Copies of products. ignee. Delegations of authority from AUTHORITY: Sec. 310. Coastal Zone man. the Secretary to the Administrator, agement Act of 1972 (Pub. L. 92-583. 86 National Oceanic and Atmospheric Stat. 1280. as amended by Pub. L. 94-370, 90 Administration (NOAA). have been Stat. 1013). duly executed by Amendment 5 of De- S0URCE: 42 FR 38788, July 29,1977, unless partment of Commerce Organization otherwise noted. Order 25-5A. dated October 13. 1976, and from the Administrator to the As- Subpart A--General sociate Administrator for Coastal Zone Management. by N0AA Circular 76- 1933.1 Basic purposes. 82. effective October 13, 1976. (a) This section sets forth the basic (c) The term Associate Administra- purposes for which the national re- tor means the Associate Administrator search and technical assistance Pro- for Coastal Z0NE Management, Nation- gram pursuant to subsection 310(a) of al Oceanic and Atmospheric Adminis- the Act., will be operated, and for tration. U.S. Department of Com- which State research and technical as- merce. sistance grants. pursuant to subsection (d) The term person is as defined in 310(b) of the Act. will be awarded. The subsection 304(13) of the Act and 220 kk,- 0 Federal Licenses and Permits The following federal licenses and permits are reviewed by the State for consistency with the Alaska Coastal Management Program pursu- ant to 15 CFR 930.53: Department of Agriculture, U.S. Forest Service 1) Permits for water easement of USFS lands. 2) Permits for construction on USFS lands. 3) Special use permits meeting the criteria of 15 CFR 930.21(b). Department of Commerce, Office of Coastal Zone Management 1) Permits within Marine Sanctuaries under 33 USC 1401-1444. Department of Defense, Army Corps of Engineers 1) Permits under Sections 9 and 10 of the Rivers and Harbors Act, authorizing the construction of bridges, causeways, dams and dikes, and the obstruction of navigable waters. 2) Permits under Section 4(F) of the Outer Continental Shelf Lands Act and amendment, authorizing artificial islands or fixed structures on the OCS. 3) Permits under Section 103 of the Marine Protection Research and Sanctuaries Act, authorizing ocean dumping outside the limits of the territorial sea. 4) Permits under Section 404 of the Federal Water Pollution Control Act, authorizing discharges into navigable waters (also subject to state certificate of reasonable assurance, FWPCA Section 401). Department of Energy, Federal Energy Regulatory Commission Licenses for the construction and operation of non-federal hydroelectric projects and associated transmission lines under sections 4(e) and 15 of the Federal Power Act (16 U.S.C. 787(e) and 808). 221 Department of Energy (continued): 2) Orders for interconnection of electric transmission facilities under section 202(b) of the Federal Power Act (16 U.S.C. 824a(b)). 3) Certificates of public convenience and necessity for the construction and operation of natural gas pipeline facilities, including both interstate pipeline and LNG terminal facilities under section 7(c) of the Natural Gas Act (15 U.S.C. 717f(c)). 4) Permission and approval for the abandonment of natural gas pipeline facilities under section 7(b) of the Natural Gas Act (15 U.S.C. 717f(b)). Environmental Protection Agency 1) Permits required under Section 402 (NPDES) of the 1972 Federal Water Pollution Control Act and amendments, authorizing discharge of pollutants into navigable waters. (also subject to state certificate of reasonable assurance, FWPCA Section 401). 2) Permits required under Section 405 (NPDES) of the 1972 Federal Water Pollution Control Act and amendments, authorizing disposal of sewage sludge. 3) Permits for new sources or for modification of existing sources and waivers of compliance allowing extensions of time to meet air quality standards under Section 112(c)(1) of the 1972 Clean Air Act. 4) Exemptions granted under the Clean Air Act for stationarv sources. 5) Permits that provide for the regulation of the generation, treatment, storage, transportation and disposal of hazardous waste, under Subtitle C of the Resource Conservation and Recovery Act of 1976, as amended. (Note: These permits are jointly issued by EPA and DEC.) 222 Department of the Interior 1) Permits and licenses for drilling and mining and related facilities on public lands (BLM). 2) Permits for pipeline rigbts-of-way on public lands and the Outer Continental Shelf. 3) Permits and licenses for rights-of-way on public lands. 4) Permits and licenses required for drilling and mining on OCS lands (USGS). Nuclear Regulatory Commission 1) Permits and licenses for the siting, construction and operation of nuclear facilities. Department of Transportation, U.S. Coast Guard 1) Permits for construction or modification of bridge structures and causeways across navigable 40 waters. 2) Permits for siting, construction and operation of deepwater ports. All federal activities, including OCS oil and gas lease sales and the designation of ocean dumping sites, whether in or outside of the coastal zone, are subject to the consistency requirements of Section 307(c)(1) of the Coastal Zone Management Act if they affect natural resources, land uses or -water uses in the coastal zone. 223 UPDATES If you want to receive updates of this handbook, please fill out the form below and return it to: Division of Governmental Coordination Office of the Governor PO. Box 110030 Juneau, AK 99811-0030 Please add my name to the mailing list to receive updates to the Alaska Coastal Management Program Information Handbook. My address is: Name Organization Street or Box Number City State Zip Change of Address: If this is a change of address, please provide us with your old address. Name Organization Street or Box Number City State Zip