[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14221]


[[Page Unknown]]

[Federal Register: June 13, 1994]


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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

 

Final Policy Guidance on Public Participation Under 
Sec. 306(d)(14) of the Coastal Zone Management Act (CZMA)

AGENCY: Office of Ocean and Coastal Resource Management (OCRM), 
National Ocean Service (NOS), National Oceanic and Atmospheric 
Administration (NOAA), Department of Commerce.

ACTION: Issuance of final policy guidance section 306(d)(14) of the 
CZMA.

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SUMMARY: The Office of Ocean and Coastal Resource Management is issuing 
final policy guidance on section 306(d)(14) of the Coastal Zone 
Management Act, which requires that state coastal management programs 
provide public participation in permitting decisions, consistency 
determinations, and other similar decisions. This final guidance 
follows review and consideration of comments of draft guidance issued 
in the Federal Register, Vol. 58, No. 212, Nov. 4, 1993, pp 58840-
58841.

DATES: States with approved coastal zone management programs must 
comply with this guidance June 13, 1995.

FOR FURTHER INFORMATION CONTACT:
Elaine Vaudreuil at NOAA/NOS/OCRM, 1305 East-West Hwy, N/ORM4, Silver 
Spring, MD 20910, by telephone at 301-713-3086, or by FAX at 301-713-
4370.

SUPPLEMENTARY INFORMATION: 

I. Authority

    This guidance is issued pursuant to the authority of the Coastal 
Zone Management Act of 1972, as amended (16 U.S.C. 1451-1464)

II. Background

    The following guidance outlines OCRM standards for states and 
territories with Federally approved coastal management programs, and 
those developing management programs, to meet the public participation 
requirement under the Coastal Zone Management Act section 306(d)(14), 
as amended by Pub. L. 101-508, the Coastal Zone Act Reauthorization 
Amendments of 1990. This section states that before approving a 
management program submitted by a coastal state, the Secretary of 
Commerce shall find that ``[t]he management program provides for public 
participation in permitting processes, consistency determinations, and 
other similar decisions.''
    The scope of this requirement extends to all activities that 
require specific or general authorization through permitting, 
consistency review, or other means pursuant to the enforceable policies 
of the coastal management program, and applicable state law. This 
guidance applies to all state authorizations subject to the statutory 
public participation requirement and shall not conflict with existing 
state or Federal regulations pertaining to Federal permitting 
processes, state permitting processes, and Federal consistency review 
of Federally permitted or licensed activities.
    NOAA has reviewed public participation opportunities under state 
coastal zone management programs and has determined that existing 
public participation procedures under state law satisfy the public 
participation requirement under section 306(d)(14) for state permits. 
For applications under state general permits, public participation in 
the review of administrative procedures or regulations allowing for a 
general determination of consistency with the Federally approved state 
coastal management program will satisfy the public participation 
requirement. NOAA's regulations already require public participation in 
state Federal consistency reviews of Federally permitted or licensed 
activities.
    Therefore, NOAA finds that section 306(d)(14) imposes a new 
requirement for effective public participation only on the state's 
review of Federal agency consistency determinations for direct Federal 
activities under section 307(c)(1) of the CZMA and any other state 
coastal management decisions not now covered by an existing public 
participation procedure.
    The following guidance outlines an acceptable standard for 
meaningful public participation. State coastal zone management programs 
will have one year to comply with this guidance. Within one year, each 
state is to: (1) Develop public participation procedures for the review 
of direct Federal activities under section 307(c)(1) of the CZMA, if 
necessary, and submit a copy of those procedures to OCRM as a program 
change or submit documentation that procedures are already incorporated 
into the approved program and (2) conduct a review to determine if 
other public participation procedures are necessary. If additional 
procedures are necessary, the state must submit a copy of the 
procedures developed to OCRM as a program change. If no further 
procedures are needed, the state must submit to OCRM a notice that a 
review has been conducted and that no additional procedures are 
necessary.
    This guidance is sufficiently broad to give states flexibility in 
developing public participation procedures that meet the intent of 
section 306(d)(14). OCRM will review each state's procedures during 
regularly scheduled evaluations of state coastal zone management 
programs under section 312 of the CZMA for compliance with the public 
participation requirement under section 306(d)(14), and will recommend 
procedural changes if necessary to meet OCRM's guidance.

III. Availability of Comments

    All comments received in response to the notice of draft policy 
guidance (58 FR 58840, November 4, 1993) are available for inspection 
at the Office of Ocean and Coastal Resource Management during normal 
business hours (8:00 to 4:30 p.m.) in room 11614, 1305 East-West 
Highway, Silver Spring, Maryland, 20910.

IV. Response to Comments

    The following comments were received on the draft policy guidance. 
NOAA's response appears below:
    Comment: The draft language of the Policy Guidance itself does not 
clearly specify that the procedures apply only to consistency reviews 
under section 307(c)(1) of the CZMA and other state coastal management 
decisions not now covered by an existing public participation 
procedure, although that fact is stated in the discussion preceding the 
guidance.
    Response: NOAA concurs and has added specific language in the 
guidance to clarify this point.
    Comment: Several states expressed concern that implementing this 
guidance will add to the state's administrative costs.
    Response: NOAA is sensitive to this issue and structured the 
guidance to provide coastal states with a range options for 
implementing the requirement in a cost-effective manner.
    Comment: NOAA should change the language under (a)(1) to say that 
``States must issue, or cause to be issued, public notice * * *''.
    Response: Recognizing that this comment is consistent with the 
provision allowing for joint public notice with Federal agencies, NOAA 
has clarified this point in the final guidance.
    Comment: The use of the word ``guidance'' coupled with the use of 
mandatory terms such as ``must'', ``mandatory'', and ``at a minimum'' 
may be confusing.
    Response: This guidance represents NOAA's interpretation of the 
statutory requirement by outlining what it considers to be effective 
public public participation. NOAA recognizes that the guidance itself 
is not the enforceable policy. Rather, the obligation of coastal states 
to comply rests in the language of section 306(d)(14).

V. Guidance to Implement CZMA Section 306(d)(14)

    Section 306(d)(14) imposes a new requirement for effective public 
participation only on the state's review of Federal agency consistency 
determinations for direct Federal activities under section 307(c)(1) of 
the CZMA and any other state coastal management decisions not now 
covered by an existing public participation procedure. For applications 
under state general permits, public participation in the review of 
administrative procedures or regulations allowing for a general 
determination of consistency will satisfy the public participation 
requirement. The public should have an opportunity to comment on a 
project's relationship with the state coastal management program's 
goals and policies. NOAA interprets the statute to require the 
following:
    (a) States must provide timely public notice.
    (1) States must issue, or cause to be issued, public notice at the 
earliest practicable time after the application and/or consistency 
determination has been received by the lead state coastal management 
agency, except in cases where earlier public notice on the consistency 
determinations by the relevant Federal agency meets OCRM's standards 
for acceptable public notice listed below.
    (2) A public comment period must be provided. The length of the 
comment period may vary in accordance with state or Federal law, and as 
appropriate for the type of authorization involved. However, the 
comment period must be sufficient to give the public a meaningful 
opportunity to develop and provide comments.
    (b) Public participation, at a minimum, must consist of written 
public notice and solicitation of public comments. Provision for a 
public hearing or meeting may also be provided. If a state chooses to 
use public hearings or public meetings to provide for effective public 
participation, such hearings or meetings should be held in a location 
accessible to most interested or affected parties to the maximum extent 
possible.
    The written public notice must:
    (1) specify that the proposed activity is subject to review for 
consistency uunder the policies of the state coastal management 
program;
    (2) provide sufficient information to serve as a basis for 
meaningful comment;
    (3) specify a source for additional information; and
    (4) specify a contact for submitting comments to the state coastal 
management program.
    (c) At a minimum, the public notice must be provided in the area(s) 
of the coastal zone likely to be affected by the activity. Procedural 
options that may be used include, but are not limited to, the options 
listed below.The use of one or more of the following must also conform 
with the guidelines set forth in (a) and (b) above.
    (1) public notice through an official state gazette;
    (2) public notice through a local newspaper serving areas of 
coastal zone likely to be affected by the activity;
    (3) public notice through individual state mailings;
    (4) public notice through a state coastal zone management 
newsletter;
    (5) arrangements between a state coastal management program and 
appropriate Federal agencies for joint public notice to be provided by 
the state and Federal agency where direct Federal activities under 
section 307(c)(1) are involved OCRM also encourages other streamlined 
procedures for providing public participation. Federal agency notice of 
a proposed activity would suffice if it meets the guidelines set forth 
in (a) and (b) above.
W. Stanley Wilson,
Assistant Administrator for Ocean Services and Coastal Zone Management.
[FR Doc. 94-14221 Filed 6-10-94; 8:45 am]
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