[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 This final guidance follows review and consideration of comments of draft guidance issued in the Federal Register, Vol. 58, No. 212, Nov. 4, 1993, pp 58840- 58841.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] BILLING CODE 3510-08-M