[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follows review and consideration of comments of draft guidance issued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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