Coastal Zone Management Act Federal Consistency Regulations

DEPARTMENT OF COMMERCE

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

15 CFR Part 930

[Docket No. 990723202-0338-02]

RIN 0648-AM88

Coastal Zone Management Act Federal Consistency Regulations

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) revises the regulations implementing the federal consistency provision of the Coastal Zone Management Act of 1972 (CZMA). The Coastal Zone Act Reauthorization Amendments of 1990, enacted November 5, 1990, as well as the Coastal Zone Protection Act of 1996, enacted June 3, 1996, amended and reauthorized the CZMA. Among the amendments were revisions to the federal consistency requirement contained in section 307 of the CZMA. Current federal consistency regulations were promulgated in 1979 and are in need of revision after 20 years of implementation. The purpose of this final rule is to make such revisions.

DATES:

Effective January 8, 2001.

FOR FURTHER INFORMATION CONTACT:

David W. Kaiser, Federal Consistency Coordinator, Office of Ocean and Coastal Resource Management (N/ORM3), 1305 East-West Highway, 11th Floor, Silver Spring, MD 20910. Telephone: 301-713-3155, extension 144.

SUPPLEMENTARY INFORMATION:

I. Authority

This final rule is issued under the authority of the CZMA, 16 USC 1451

et seq.

II. Background

The following terms are defined for the purpose of this preamble:

The term “management program” means the objectives, policies and other requirements of a State coastal management program that has been federally approved by NOAA, pursuant to CZMA § 306.

The term “State agency” means the designated federal consistency agency for a particular management program.

The term “consistency determination” means the determination provided by a Federal agency to a State agency for a Federal agency activity under CZMA § 307(c)(1) that the Federal agency determines will have reasonably foreseeable effects on any land or water use or natural resource of a State's coastal zone (such effects are also referred to as “coastal effects” or “effects on any coastal use or resource”).

The term “negative determination” means the determination provided by a Federal agency to a State agency for a Federal agency activity under CZMA § 307(c)(1) that the Federal agency determines will not have reasonably foreseeable coastal effects.

The term “consistency certification” means the certification provided by an applicant for a federal approval under CZMA § (c)(3) or a State agency's or local government's certification under CZMA § 307(d).

The term “concurrence” means a State agency's approval of a consistency determination, negative determination, or consistency certification.

The term “objection” means a State agency's disagreement/disapproval of a consistency determination, negative determination, or consistency certification.

The term “enforceable policy” means a policy that is legally binding under State law and is part of that State's management program.

The term “maximum extent practicable” means that Federal agencies must conduct their activities under CZMA § 307(c)(1) in a manner that is fully consistent with the enforceable policies of a management program, unless prohibited from full consistency by the requirements of federal law applicable to the activity.

The CZMA was enacted to develop a national coastal management program that comprehensively manages and balances competing uses of and impacts to any coastal use or resource. The national coastal management program is implemented by individual State management programs in partnership with the Federal Government. The CZMA federal consistency requirement, CZMA § 307, requires that Federal agency activities be consistent to the maximum extent practicable with the enforceable policies of a management program. The federal consistency requirement also requires that non-federal activities requiring federal permits, licenses or that receive federal financial assistance, be fully consistent with a State's federally approved management program. The federal consistency requirement is an important mechanism to address coastal effects, to ensure federal consideration of State management programs, and to avoid conflicts between States and Federal agencies by fostering early consultation and coordination.

Congress strongly re-emphasized the importance of consistency in the CZMA amendments of 1990 and specifically endorsed long-standing requirements of the CZMA consistency regulations. Thus, in making regulatory changes NOAA has been careful to adhere to statutory requirements and has given deference to the long-standing consistency provisions that comport with new statutory requirements. The implementation of consistency by the States and Federal agencies and guidance by NOAA, especially in the past few years, for the most part has been based on reasonableness, objectivity, collaboration and cooperation. The strength of revised regulations and State-Federal interaction needs to further these goals and be solidly grounded in the statute and long-standing usage. With that in mind, aside from the revisions required by the changes to the CZMA, it is not NOAA's intent to fundamentally change or “weaken” the consistency requirement. NOAA's intent is to clarify certain sections, provide additional guidance where needed, and provide States and Federal agencies with greater flexibility for Federal-State coordination and cooperation.

III. Coastal Zone Act Reauthorization Amendments of 1990

This final rule codifies changes made to CZMA § 307 in 1990. The Coastal Zone Act Reauthorization Amendments of 1990 (CZARA) (Pub. L. No. 101-508) amended the CZMA to clarify that the federal consistency requirement applies when any federal activity, regardless of location, affects any land or water use or natural resource of the coastal zone. This new “effects” language was added by the CZARA to replace previous language that referred to activities “directly affecting the coastal zone,” establishing:

a generally applicable rule of law that any federal agency activity (regardless of its location) is subject to [the consistency requirement] if it will affect any natural resources, land uses, or water uses in the coastal zone. No federal agency activities are categorically exempt from this requirement.

H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess. 968-975, 970 (hereinafter Conference Report). The focus of the Federal agency's evaluation should be on coastal effects, not on the nature of the activity. The Conference Report

provides further clarification on the scope of the effects test:

The question of whether a specific federal agency activity may affect any natural resource, land use, or water use in the coastal zone is determined by the federal agency. The conferees intend this determination to include effects in the coastal zone which the federal agency may reasonably anticipate as a result of its action, including cumulative and secondary effects. Therefore, the term “affecting” is to be construed broadly, including direct effects which are caused by the activity and occur at the same time and place, and indirect effects which may be caused by the activity and are later in time or farther removed in distance, but are still reasonably foreseeable.

Id.

at 970-71. These changes reflect an unambiguous Congressional intent that all Federal agency activities meeting the “effects” test are subject to the CZMA consistency requirement; that there are no exceptions or exclusions from the requirement as a matter of law; and that the “uniform threshold standard” requires a factual determination, based on the effects of such activities on the coastal zone, to be applied on a case-by-case basis.

Id.;

136 Cong. Rec. H 8076 (Sep. 26, 1990).

Other changes made to the CZMA by the CZARA include the addition of § 307(c)(1)(B) which, under certain circumstances, authorizes the President to exempt a specific Federal agency activity if the President determines that the activity is in the paramount interest of the United States. This section does not require implementing regulations. The CZARA also makes clear the requirement that Federal agency activities and federal license or permit and federal assistance activities must be consistent with the enforceable policies of management programs. Finally, the CZARA made technical and conforming changes to the other existing federal consistency requirements of CZMA §§ 307(c)(3)(A) and (B), and 307(d) for the purpose of conforming these existing sections with changes made to § 307(c)(1).

IV. CZARA and

Secretary of the Interior

v.

California

, 464 U.S. 312 (1984)

In 1984, the Supreme Court held that outer continental shelf (OCS) oil and gas lease sales by the Department of the Interior's Minerals Management Service were not activities subject to the CZMA consistency requirement as the lease sales did not directly affect the coastal zone.

Secretary of the Interior

v.

California,

464 U.S. 312 (1984). In amending the CZMA federal consistency section in 1990, Congress overturned the effect of the decision in

Secretary of the Interior

and made it clear that OCS oil and gas lease sales are subject to the consistency requirement. Conference Report at 970. Congress also intended this change to clarify that other federal activities (in or outside the coastal zone) in addition to OCS oil and gas lease sales are subject to the federal consistency requirement. The remainder of the consistency discussion in the Conference Report makes this clear as does similar discussion in the Congressional Record, 136 Cong. Rec. H 8068 (Sep. 26, 1990) [hereinafter Congressional Record] (incorporated into the Conference Report,

see

Conference Report at 975).

Changes to the consistency section clarify that any federal activity is subject to the consistency requirement (regardless of location) if coastal effects are reasonably foreseeable, and that there are no categorical exemptions. Conference Report at 970. The discussion in the Conference Report on whether to list other federal activities that are subject to the consistency requirement,

e.g.

, activities under the Ocean Dumping Act, further clarifies that no federal activities are categorically exempt and that the determination of whether consistency applies is a case-by-case analysis based on reasonably foreseeable effects on any coastal use or resource.

See

Conference Report at 971.

The Congressional Record sheds further light on the intent and the scope of Congress' rejection of

Secretary of the Interior

. Congress not only rejected

Secretary of the Interior

, but eliminated the “‘shadow effect” of the Court's decision (

i.e.

, its potentially erosive effect on the application of the federal consistency requirements to other Federal agency activities) * * * and also to dispel any doubt as to the applicability of this requirement to all federal agency activities that meet the standard [

i.e.

, the effects test] for review.” Congressional Record at H 8076.

Thus, the application of the consistency requirement is not dependent on the type of activity or what form the activity takes (

e.g.

, rulemaking, regulation, physical alteration, plan). Consistency applies whenever a federal activity initiates a series of events where coastal effects are reasonably foreseeable.

See

H.R. Rep. No. 1012, 96th Cong., 2d Sess. 4382. The CZMA, the Conference Report, and NOAA regulations are specifically written to cover a wide range of federal functions. The only test for whether a Federal agency function is a Federal agency activity subject to the consistency requirement is an “effects test.” Whether a particular federal action affects the coastal zone is a factual determination.

V. Coastal Zone Protection Act of 1996

On June 3, 1996, the President signed into law the Coastal Zone Protection Act of 1996 (CZPA), Pub. L. No. 104-150. Section 8 of the CZPA addresses the Secretarial override process whereby the Secretary of Commerce may override a State's consistency objection to a federal permit, license or funded project. Specifically, CZPA section 8 requires the Secretary to publish a notice in the

Federal Register

indicating when the decision record in a consistency appeal has closed. No later than 90 days after the date of publication of this notice, the Secretary is required to issue a final decision or publish another notice in the

Federal Register

detailing why the decision cannot be issued within the 90-day period. In the latter case, the Secretary is required to issue a decision no later than 45 days after the date of the publication of the notice. This final rule makes conforming changes in the Secretarial override regulations contained in subpart H of part 930.

VI. Purpose of This Final Rulemaking

A proposed rule to revise portions of the federal consistency regulations was published on April 14, 2000 (65 Fed. Reg. 20269-20302). The purpose of this final rule is to codify the 1990 and 1996 statutory changes to CZMA § 307, and to update the federal consistency regulations after 20 years of implementation by NOAA, States and Federal agencies. This final rule is also the result of a two year informal effort by NOAA to work with Federal agencies, State agencies, and other interested parties to identify issues and obtain comments on draft proposed revisions to the regulations. Thus, this final rule has already undergone substantial review and modification by Federal agencies, State agencies and other interested parties.

VII. Section-by-Section Discussion of Final Changes and Response to Comments on the Proposed Rule

Throughout part 930 NOAA makes a number of minor revisions, as well as a number of revisions that will implement the CZARA and the CZPA. The minor revisions include changes that will update the regulations and make them easier to use. The following is a section-specific discussion of some of these changes, as well as changes that will implement the CZARA and the CZPA. In addition, there were numerous comments on the proposed rule and NOAA. These comments are summarized under the relevant sections

below along with NOAA's response. While many commenters suggested changes to the regulations, these same Federal agencies, State agencies and others provided comments that noted the importance of and the improvements to the regulations, and the need to finalize the regulations. NOAA greatly appreciates these comments and the assistance that the Federal agencies, State agencies and other interested parties have provided to NOAA over the past three years to develop these revised regulations. Because of the number of changes made to the regulations, 15 CFR part 930 is published in its entirety in this

Federal Register

notice.

Subpart A—General Information

Minor changes are made to clarify that the obligations imposed by the regulations are for State agencies as well as for Federal agencies and other parties, and to clarify that the purpose of the regulations is to address both the need to ensure consistency of federal actions affecting any coastal use or resource with the enforceable policies of management programs and the importance of federal programs. Changes are made to encourage State agencies and Federal agencies to coordinate as early as possible, and to allow State agencies and Federal agencies to mutually agree to consistency procedures different from those contained in the regulations, providing that public participation requirements are still met and that all relevant management program enforceable policies are considered. Minor editorial changes are not individually identified in the section-by-section analysis.

Section 930.1(c). One commenter claimed that the proposed rule complicates rather than simplifies the administrative process. NOAA does not agree. The rule clarifies existing NOAA policy that State agencies, Federal agencies and applicants may mutually agree to augment or replace the requirements of the consistency regulations with other intergovernmental coordination efforts, so long as public participation requirements are met and the State agency is adequately enforcing its management program. Such intergovernmental coordination efforts may be more efficient and effective for the particular State and specific activity. Most States already have procedures to simplify and coordinate their consistency and other permit reviews. In addition, NOAA's changes improve the clarity of some sections that are currently cause for confusion. This increased clarity will provide a more predictable and better understood process.

Another commenter noted that public participation is an important element of the CZMA and should receive a high priority in the regulation. NOAA agrees and has made the last parenthetical in subsection (c) a clause within the sentence.

Section 930.1(e). One State commented that the section should retain reference to objectives of management programs, and not just to enforceable policies. NOAA disagrees. In 1990, Congress placed great emphasis on the need for State agency consistency decisions to be based on enforceable policies.

See

CZMA § 304(6a), Conference Report at 972. The CZMA was changed, in part, to expressly require consistency with enforceable policies. CZMA §§ 307(c)(1) and (c)(3)(A). Advisory policies are still addressed in section 930.39(c). The terms objectives, standards, policies and criteria are not retained, either for the reasons stated above, or because they are redundant with enforceable policies.

Sections 930.1(h) and (i) are removed.

See

below under sections 930.132-134, and subpart I.

Section 930.2 codifies the requirement for public participation for all types of consistency reviews which was added by CZARA, CZMA § 306(d)(14). Environmental groups commented that public participation should be required for “negative determinations.” NOAA disagrees. CZMA § 306(d)(14) requires that State agencies provide for public participation in the State agencies' review of consistency determinations (Federal agency activities), and other similar decisions. NOAA believes that this provision refers to consistency determinations and certifications which are submitted for activities which the project proponent reasonably expects will have coastal effects and where State agency review is required. Where a State agency decision or review is not required, public participation is not required. State agencies are required to review consistency determinations and certifications.

See

response to comment regarding section 930.3. Public notice under CZMA § 306(d)(14) is not required for State agency review of negative determinations, since a State agency is not required to review, and in fact may never review, a Federal agency's negative determination, which is a finding of no coastal effects. The new time frames for State agency review of negative determinations are only provided if a State agency decides to review a negative determination and to ensure that such a discretionary review occurs in a timely manner. If a Federal agency were to agree that coastal effects are reasonably foreseeable and that its negative determination was not correct, then the Federal agency would submit a consistency determination pursuant to subpart C, which would be subject to public comment.

Section 930.3 was formerly located at section 930.145. Two State commenters said that this section misconstrues the CZMA claiming that State agency implementation of federal consistency is not required, but is discretionary. NOAA does not agree. Another commenter recommended that the regulations allow citizens to petition NOAA if a citizen believes a management program is not being implemented. The comments regarding State agency obligation to perform consistency reviews incorrectly interprets CZMA program development, approval and continuing review requirements; the “presumption” language in CZMA § 307; and ignores the public participation requirement added by Congress in 1990. A coastal State voluntarily participates in the CZMA program. However, to obtain management program approval a State must develop a program pursuant to CZMA and NOAA regulatory guidelines. Further, to continue to have an approvable program, the coastal State must adhere to CZMA and NOAA regulatory implementation requirements and must implement its federally-approved management program. NOAA monitors such implementation through the CZMA § 312 evaluation process. Federal consistency is one of the requirements that a State must implement. If a State is not reviewing federal activities for consistency and allowing the public to comment on the State's reviews, then the State is not adequately implementing its federally-approved management program.

The CZMA contains numerous sections that are part of the requirement for States to implement federal consistency if the States want to maintain an approvable program. For example, CZMA § 306(d) requires States to implement federally-approved management programs, particularly §§ 306(d)(1) (management program adopted pursuant to NOAA regulations), § 306(d)(2)(D) (identification of the means by which the State will exert control over coastal uses), and § 306(d)(2)(F) (the organizational structure used to implement the management program).

Moreover CZMA § 312(a) requires the Secretary to evaluate State programs to ensure that a State has adequately

“implemented and enforced” its program. If the State is not adequately implementing and enforcing its program the Secretary may suspend the State's grant for non-compliance, CZMA § 312(c)(1), and require the State to take necessary actions to remedy the non-compliance, CZMA § 312(c)(2)(A). If the State does not remedy the non-compliance, then the Secretary may withdraw program approval. CZMA § 312(d). A State cannot adequately implement its management program unless the State ensures, through federal consistency, that federal activities are consistent with the State's enforceable policies. For instance, one State waived consistency on numerous projects due to a State statute that required the State to issue all State decisions within 90 days or the State's permission is presumed. NOAA identified this as a management program implementation problem and required the State, to “seek administrative or regulatory mechanisms that ensures consistency is separate from issuance of a permit by default, or ensure consistency is conducted within the 90-day permit review period.” OCRM/NOAA, Evaluation Findings for the New Jersey Coastal Management Program for the Period from September 1991 through November 1994, at 30 (June 1995). As a result, the State clarified the application of the 90-day statute and took steps to complete its consistency reviews within the 90-day State-imposed period. NOAA followed up on this issue in the State's next evaluation and required the State to provide an explanation of how it is enforcing its program in light of the 90-day State statute. OCRM/NOAA, Evaluation Findings for the New Jersey Coastal Management Program for the Period from December 1994 through November 1997, at 23 (April 1998).

In 1990 Congress added CZMA § 306(d)(14) which requires States to provide for public participation in a State's review of federal consistency determinations and other consistency decisions by a State. Thus, if a State agency receives a consistency determination from a Federal agency, the State cannot simply waive consistency review. The State agency must provide for public comment on a State review to either concur with or object to the determination. In addition, the State must implement its program and cannot do so if it ignores federal activities under CZMA § 307, which will affect the State's coastal uses or resources.

CZMA § 307 also specifies that State's must implement its program through federal consistency. For instance, § 307(c)(3)(A) provides that States “shall” establish procedures for public participation and “shall” notify Federal agencies and applicants of its concurrence or objection. The “presumption” of a State agency's concurrence in the CZMA and NOAA's regulations is not an indication of State agency discretion to be non-responsive. The “presumption” of concurrence is to ensure that consistency reviews occur in a timely fashion by providing a penalty to the State for not responding within the statutorily specified time frames. Patterns of non-compliance are remedied through the CZMA § 312 evaluation process, as described above.

NOAA's regulations also contain numerous sections requiring States to implement their federally-approved programs, including federal consistency. For example, 15 CFR section 923.1(b) requires States to comply with CZMA §§ 306 and 307 for program approval; section 923.1(c)(6) requires States to have sufficient means to implement and ensure conformance with their management programs (which includes their federal consistency programs); section 923.1(c)(7) mirrors CZMA § 306(d)(14) requiring public participation in its consistency reviews; sections 923.40(a) and (b) and 923.46 require States to have the organizational structure to implement their programs; section 923.53 requires a State to include in its program “the procedures it will use to implement the Federal consistency requirements. * * *”; section 923.133(c)(1)(i) requires that for continued management program approval that the State has “[i]mplemented and enforced the [federally approved program.]” and, under section 923(c)(2)(i)(C), the State “is effectively carrying out the provisions of Federal consistency.” Finally, the criteria for invoking interim sanctions for non-compliance, under sections 923.135(a)(3)(i)(A), (D), and (E), include “ineffective or inconsistent implementation of legally enforceable policies,” “ineffective implementation of Federal consistency authority,” and “inadequate opportunity for intergovernmental cooperation and public participation” including input through CZMA § 306(d)(14) (public input into consistency decisions).

Federal consistency is an integral part of ensuring consistent application of State enforceable policies to all entities, be they public, private, local government or federal, and ensuring adequate implementation of the State's management program, and as such, the statute, the regulations and agency practice require States to meet the CZMA § 307 federal consistency requirements.

As for the comment regarding a process for citizen notification to OCRM of State non-compliance, the CZMA already contains such a process under the section 312 program evaluation process.

Section 930.4 clarifies the use by State agencies of conditional concurrences. Conditions of concurrence should not replace State objections and the identification of alternatives for activities that the State agency finds are inconsistent with its management program. Since conditional concurrences could seriously weaken the State authority granted by the CZMA consistency requirement, this rule only allows conditional concurrences pursuant to the following criteria: (1) Conditions must be based on specific enforceable policies, (2) the applicant must amend its federal application, and (3) the Federal agency approves the application as amended with the State conditions. If all of these requirements are not met, then the conditional concurrence is an objection.

Several Federal agencies, many State agencies and others provided comments either in support of or against this provision. The CZMA does not specifically address conditional concurrences. The CZMA provides predictability and finality by requiring the State agency to concur or object within a prescribed time period. The CZMA does not provide the State agency with the authority to enforce its concurrence (or conditions) beyond the State's consistency decision deadline (

e.g.,

six months for licenses or permits). Once a State agency has concurred, even with conditions, the State agency retains no further consistency authority over the project (unless the project has changed and not begun,

see

proposed supplemental coordination under sections 930.46, 66 and 101).

If a State agency objects, then the State agency retains its authority over the project; the Federal agency cannot issue the license or permit and a Federal agency may not be able to proceed with a Federal agency activity. Some States still prefer conditional concurrences, presumably as a more positive response to an applicant or Federal agency. However, a conditional concurrence may not provide an applicant or a Federal agency with a definitive response within the specified review periods. A conditional concurrence interjects less clarity into the consistency process. Also, when a State agency issues a conditional concurrence the Federal agency may issue the permit or, in the case of a Federal agency activity, proceed with the activity. Thus, issuing an objection and describing

alternatives provides applicants and Federal agencies with a definitive response and retains State agency authority.

A State cannot, through the CZMA, enforce its conditions after it has concurred. The State may request that the Federal agency take enforcement action or may seek a court order against the applicant. The CZMA does not require a Federal agency to adopt a State's conditions of concurrence and OCRM could not require this through regulation. A State condition may also be outside the purview of the Federal agency. The CZMA only requires that the Federal agency shall not grant its approval until the State agency has concurred, concurrence is conclusively presumed, or the Secretary overrides a State agency's objection. Also, if a State agency concurs with conditions and the Federal agency issues its approval consistent with the conditions, but the applicant later does not comply with the conditions, the Federal agency is not required to take an enforcement action. Enforcement action is a purely discretionary action by a Federal agency.

See State of New York

v.

DeLyser,

759 F. Supp. 982 (W.D.N.Y. 1991).

However, the revised regulations do include the concept that the applicant may modify its federal permit application pursuant to State conditions and if the Federal agency approved the amended application, the Federal agency would be more likely to enforce the State's conditions (since the State conditions would be part of the federal permit). When reviewing activities under CZMA § 307(c)(3)(A), it is the responsibility of the applicant to submit a consistency certification to the State agency and therefore it is also the responsibility of the applicant to address the State's conditions in the application, rather than have the Federal agency granting the permit or license directly impose the conditions. If the applicant did not modify its federal permit application pursuant to the State conditions or the Federal agency did not approve the amended application (with the State conditions), then the concurrence would be deemed an objection. Providing for conditional concurrences in the regulations does not preclude States from issuing an objection. A discussion of whether the Federal agency can enforce the State's conditions should take place during the review period to help determine if a conditional concurrence is the best course of action. States have a choice of choosing either option on a case by case basis.

Under section 930.4, the existing time frames for State agency review of consistency certifications and consistency determinations still apply. If the State has proposed conditions and is awaiting a response from the applicant or Federal agency on proposed conditions and does not hear back within the specified review period, the State agency can still issue an objection. The State agency, applicant and Federal agency can also negotiate a new timeframe for responding to the State's proposed conditions and issuing the conditional concurrence.

Section 930.5 is added to clarify that the mediation and negotiation sections of the regulations do not preclude other State enforcement actions where the State has jurisdiction or believes it is necessary to take enforcement or judicial action. One commenter asked that mediation be mandatary. NOAA disagrees. The use of the remedial action and mediation provisions are not mandated by the statute, the existing regulations or long-standing practice. These provisions are provided in statute and regulation to provide mechanisms to resolve conflict, but are not the only possible remedies, hence the first sentence of this section referring to other possible actions. Certainly, States and Federal agencies are encouraged to attempt to resolve any differences outside of judicial review.

Section 930.6 moves the non-definitional parts of section 930.11(o) (formerly section 930.18) to a section describing the responsibilities of the State agency. Section 930.6(a) acknowledges that a State may have two separate management programs (for distinct regions) and two separate federal consistency agencies. Currently, California has two separate management agencies (the California Coastal Commission and the San Francisco Bay Conservation and Development Commission).

Section 930.6(b) simplifies consistency terminology. At present, different terms are used to describe State responses for Federal agency activities (“agreement or disagreement”) and federal license or permit activities (“objection or concurrence”). Now, a State agency would either object to or concur with a consistency determination or a consistency certification. In response to one commenter, NOAA added public participation language to this subsection. While the public participation requirements are adequately covered in other sections, mention of the requirements here would be appropriate and helpful. Thus, in subsection (b), the phrase “and, where applicable, the public.” is added after “local government agencies.” In subsection (c), the phrase “and that applicable public participation requirements are met.” is added to the end of the first sentence after “State management program policies.”

Section 930.6(c) is added to clarify the role of the single State agency for coordinating federal actions and the State agency's responsibility to apply all relevant enforceable policies when conducting consistency reviews.

Several State agencies and others supported section 930.6 in their comments, while also recommending changes that were not compatible with the Statute regarding the State agency. NOAA did not make any of the suggested changes for the following reasons. For the reasons Stated above in response to comments on section 930.3, and further elaboration below, the words “uniformly and comprehensively” are retained. States are required to implement their federally approved programs and to apply all relevant enforceable policies to a particular federal activity. The CZMA requires compliance with all relevant enforceable policies of a “management program” and not a subset thereof.

See e.g.,

CZMA §§ 307(c)(3)(A), 304(12). A major criterion for management program approval is a determination that State agencies responsible for implementing the management program do so in conformance with the policies of the management program. 15 CFR section 923.40(b).

See

also section 923.41(b)(2). Networked management programs must also demonstrate that management program authorities implement the full range of policies. Section 923.43(c). The federal consistency regulations mirror the requirement for the application of enforceable policies in a comprehensive manner. Uniformity is required to ensure that States are not applying policies differently, or in a discriminatory way, among various entities for the same type of project for similar purposes,

e.g.,

holding a Federal agency to a higher standard than a local government or private citizen. Obviously, if similar projects,

e.g.,

shoreline stabilization, are proposed for different purposes, then the States review and decision will vary between the two projects.

Other sections contain information regarding Federal agency responsibilities. This section only applies to State agencies. The CZMA requires that a State have a single State agency for grant administration and management program implementation (including federal consistency). CZMA §§ 306(d)(6) and 307(c)(1)(C). Further,

NOAA's program approval regulations require a single State agency charged with implementing federal consistency, section 923.53(a)(1), as does the existing federal consistency regulation, section 930.18. The need for a designated State consistency agency is to ensure: uniform application of a State's management program policies, efficient coordination of all management program requirements, comprehensive coastal management review, that all relevant enforceable policies are considered for a federal consistency review, that public participation requirements are met, and that there is a single point of contact for Federal agencies and the public to discuss consistency issues. The State agency coordinates consistency reviews, issues concurrences and objections, coordinates with Federal agencies, provides guidance on complying with the consistency requirement, handles appeals to the Secretary and mediation requests, etc. The State agency may rely on the expertise of other State agencies, but other State agencies may not be the designated State agency for consistency reviews, decisions, etc.

Regarding the use of State permits, as discussed above, the State agency must ensure that all applicable enforceable policies are applied to a consistency matter. If described in a State's management program, the issuance of relevant State permits can constitute the State agency's consistency concurrence for federal license or permit activities if the State agency ensures that the State permitting agencies (or the State agency) review individual projects in light of all applicable management program policies. The State agency must monitor such permits issued by another State agency. Monitoring does not mean that the State agency has some sort of overlord role or the ability to overrule another State agency's permit decision (although some State agencies may have this authority). Monitoring means that the State agency is aware of other State agencies' actions that affect the management program, the State agency ensures that other State agencies' decisions are consistent with the management program, and that decisions are being made within the consistency timeframes, etc.

If all management program enforceable policies are contained in State permit standards, then usually the issuance of the relevant State permit(s) will be sufficient for determining consistency. However, there may be cases where a State permit is not required, but the policies contained in a permit program are applicable to the project. In these cases, the State agency must ensure that the activity is consistent with these policies. The State agency must also ensure that public participation requirements are met.

A State agency may develop alternative consistency procedures with Federal agencies. In doing so, the State agency must still be the consistency contact and ultimate decision maker, the State must enforce its CMP, and public participation requirements must be met by the State.

In response to a comment on section 930.6, regarding compliance with State environmental review laws, as discussed above, States are required to apply relevant enforceable policies of the management program. The preparation and use of State environmental review documents, and compliance with such State environmental review laws, is governed by applicable State law, and not the CZMA or NOAA's regulations. What is required, is that the State implement its federally approved management program, as discussed above. Likewise, how the State coordinates with NEPA documents is not proscribed by the CZMA. The CZMA and NEPA are two separate statutes with distinct requirements. Often consistency reviews are coordinated through NEPA documents as a matter of administrative convenience and also to provide environmental information to support a consistency determination. NOAA encourages such practice, as previously discussed in the preamble to the proposed rule under proposed section 930.37.

Subpart B—General Definitions

The definitions have been re-designated to reduce the total number of regulation sections. There is now just a section 930.10 for the index and a section 930.11(a) through (o) for the definitions contained in subpart B.

Section 930.11(d) clarifies that associated facilities are indispensable parts of the proposed federal action. A variant of the addition was previously a comment to the 1979 regulations. 44 Fed. Reg. 37145. This addition ensures that the State agency would have sufficient information to fulfill its coastal planning and management responsibilities, and the proponent of the federal action would not be faced with the situation where there has been receipt of State agency approval regarding one element of the project with later objection to an associated facility which was not earlier reviewed with the remainder of the proposal.

Sections 930.11(b) and (g) define “any coastal use or resource” and “effect on any coastal use or resource,” respectively. These terms are not intended to alter the statutory requirement which refers to any land or water use or natural resource of the coastal zone. These terms are merely a simpler description of the statutory requirement. The term “minerals” has been added to include both surface and subsurface mineral resources. Aesthetics and scenic qualities are not natural resources, but are enjoyment or use of natural resources. These concepts have been added to the definition of coastal use. Land has been added to natural resource. A sentence has also been added to include coastal uses and resources detailed in a management program. Resource creation or restoration projects has been added as a coastal use. This includes tidal and nontidal restoration and creation projects. Air and invertebrates have been added as natural resources. Since historic and cultural resources are important coastal resources under the CZMA (

see

§§ 302(e), 303(2) and 303(2)(F)), the protection of historic and cultural resources of the coastal zone is included in the examples of coastal uses.

Several States and environmental groups commented that these sections are the core of the 1990 amendments and fully supported these sections. Several commenters wanted additions or deletions to these sections and for NOAA to define “reasonably foreseeable” in subsection (g). NOAA did not make changes to these sections based on these comments. The definition for coastal uses and resources is derived primarily from CZMA § 304 (coastal uses of national significance are defined in CZMA § 304(2)). Not all coastal uses or resources can be added. The list is not exclusive, but is meant to highlight the more common uses and resources. The list includes coastal resources of national significance, which include beaches and barrier islands, as defined in CZMA § 304(2). The definition also uses the term “land” in its description of natural resources, which includes barrier islands, spits, beaches and bluffs. Therefore, NOAA disagrees that it is necessary to add these terms to the definition of coastal resource. Biological, hydrological, and geophysical systems are not resources, but processes that affect resources. The resources that are affected by these processes are included in the definition. It is also not clear why just these processes are proposed to be listed. Such a list would imply that other processes are not included. These three terms have not been added.

The definition of coastal effects is not over broad, but is consistent with the CZMA, legislative history and CEQ/

NEPA definitions of cumulative and secondary effects. The changes to the CZMA in 1990 specifically removed application of federal consistency to “direct” effects (and likewise “significant” or “substantial” effects).

See also

response to comments regarding section 930.31(a), and the preamble to this rule. Explanation of the change in 1990 is contained in the Conference Report. The “effects” language is taken from the Conference Report. The Conference Report is persuasive authority for interpreting the CZMA. The Conference Report states that coastal effects are to be construed broadly and include both direct effects which result from the activity and occur at the same time and place, and indirect (cumulative and secondary) effects which result from the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. The Conference Report makes it clear that the test for triggering consistency is not whether the effect is significant or substantial, but whether it is reasonably foreseeable. NOAA could not put back in (or retain what is currently in) regulation that which Congress specifically removed in 1990.

Whether consistency applies is not dependent on the type of federal activity, but on reasonably foreseeable coastal effects. For example, a planning document or regulation prepared by a Federal agency would be subject to the federal consistency requirement if coastal effects from those activities are reasonably foreseeable.

Again, the application of consistency is not limited by the geographic location of a federal action; consistency applies if there are reasonably foreseeable coastal effects resulting from the activity. A federal action occurring outside the coastal zone may cause effects felt within the coastal zone (regardless of the location of the affected coastal use or resource). For example, a State's fishing or whale watching industry (which are coastal uses) could be affected by federal actions occurring outside the coastal zone. Thus, the effect on a resource or use while that resource or use is outside of the coastal zone could result in effects felt within the coastal zone. However, it is possible that a federal action could temporarily affect a coastal resource while that resource is outside of the coastal zone,

e.g.

, temporary harassment of a marine mammal, such that resource impacts are not felt within the coastal zone. As stated above, the coastal effects test is a fact-specific inquiry. NOAA is not further defining “reasonably foreseeable.” Congress envisioned that Federal-State coordination through consistency would be interactive. Thus, the application of consistency, the varied State management programs, the analysis of effects, and the case-by-case nature of federal consistency precludes fast and hard definitions of effects and what is reasonably foreseeable.

The “substantial” language in sections 930.46 and 930.66 refer to supplemental coordination for proposed activities. The intent in these sections was to address situations where coastal effects have substantially changed, not to define the scope of effects to trigger initial State agency review.

The proposed definition includes cumulative and secondary effects as part of indirect effects via the following language: “indirect (cumulative and secondary) effects which result from the activity and are later in time or farther removed in distance, but are still reasonably foreseeable.” The definition goes on to State that “Indirect effects resulting from incremental impact of the federal action when added to other past, present and reasonably foreseeable actions, regardless of what person(s) undertake such actions.” This language is consistent with the Council on Environmental Quality's definition of cumulative effects. 40 CFR section 1508.7.

The so-called “chain of events” concept was already captured in the proposed rule under section 930.31, which is derived from legislative history discussing the scope of consistency.

Section 930.11(h) adds a definition of enforceable policy by reference to CZMA § 304(6a), and clarifies that an enforceable policy must be sufficiently comprehensive and specific to control coastal uses while not necessarily inflexibly committing the State to a particular path.

See American Petroleum Institute

v.

Knecht

, 456 F. Supp. 889, 919 (C.D. Cal. 1978),

aff'd

, 609 F.2d 1306 (9th Cir. 1979); 15 CFR section 923.40(a); Conference Report at 972. One Federal agency, three States and the environmental groups had various comments on this definition. These comments included: the definition is too broad, enforceable policies should include federal law, the section should require compliance with State environmental review requirements, and that not all policies should have to be formally incorporated into federally approved management programs.

NOAA did not change the definition based on these comments. Changing the scope of the definition of enforceable policies would be inconsistent with the CZMA. Under CZMA § 307(c), Federal agencies are required to submit a consistency determination to the State agency if it determines that there are reasonably foreseeable effects. The consistency determination should include an evaluation of the proposed activity in light of the applicable enforceable policies in the State's Coastal Management Program (CMP). The State has the authority to then review this consistency determination and decide whether it agrees with it, including the Federal agency's interpretation of the State's enforceable policies. If the State disagrees with the consistency determination, then it must describe how the activity is inconsistent with the enforceable CMP policies and alternatives (if they exist) that would allow the activity to be conducted in a manner consistent to the maximum extent practicable. If agreement cannot be reached between the State and Federal agencies, the Federal agency may still proceed with the activity, as long as it clearly describes to the State the specific legal authority which limits the Federal agency's discretion to comply with the State CMP's enforceable policies.

The regulations encourage early discussions between the State and the Federal agency over the meaning of the State's enforceable policies. For instance, section 930.34 encourages early consultation between Federal and State agencies to obtain the State views and assistance regarding the means for determining that the proposed activity will be conducted in a manner consistent to the maximum extent practicable with the State's CMP. In addition, the definition envisions that discussions between the State and Federal agencies may be necessary in order to determine the consistency of the activity with the State's enforceable policies.

CZMA § 307(e) requires that States with approved CMPs must submit changes to the CMP for approval by OCRM before they can be considered enforceable policies under the CMP. Therefore, States cannot use enforceable policies that are not part of the State's CMP for review of activities under federal consistency. States are encouraged to send in proposed changes to their CMPs as soon as possible for review by OCRM.

The CZMA does not provide for the inclusion of federal laws into State CMPs, but rather a listing of the State enforceable policies (

e.g.

, laws, constitutional provisions, regulations and judicial decisions). Federal agencies or applicants for federal permits undertaking activities that have reasonably foreseeable coastal effects must consider the enforceable policies of the State's CMP (

see

CZMA

§§ 307(c)(1)(A) and (3)(A)). This does not preclude the need for these activities to comply with relevant federal laws, but the CZMA does not grant authority to States to consider federal laws as State CMP enforceable policies when reviewing Federal agency activities or federal license or permit activities.

In addition, in order for a State law to be used under federal consistency, it must be a part of the State's approved CMP. Under CZMA § 306(d)(2)(D), the State must include a list of enforceable policies in its coastal management program. Under CZMA § 306(e)(1), it is the State's responsibility to request that OCRM consider including new or revised enforceable policies for inclusion in the State CMP. Therefore, in order for a State to add an enforceable policy to its CMP for the purposes of federal consistency, such as the California Environmental Quality Act (CEQA), the State must make that request to OCRM. Also, whether a Federal agency must be fully consistent with CEQA would depend on whether Federal law precluded full consistency, pursuant to the section 930.32 consistent to the maximum extent practicable standard.

Management measures does not refer to the “(g)” guidance for Coastal Nonpoint Programs. It is a term borrowed from the Conference Report and

American Petroleum Institute

v.

Knecht

that describes reasonable State interpretations of its enforceable policies.

Subpart C—Consistency for Federal Agency Activities

Throughout the regulations the phrase “directly affecting the coastal zone” has been changed to read “affecting any coastal use or resource.” This codifies changes made to the CZMA by CZARA and includes reasonably foreseeable effects on any land or water use or natural resource of the coastal zone.

In section 930.30 NOAA deleted “conducted or supported” to conform this section with changes made by CZARA. In addition the title of subpart C and throughout subpart C, the term “Federal activity” is changed to “Federal agency activity” to avoid confusion with federal activities under subparts D, E, and F. The phrase Federal agency activity is taken directly from the CZMA.

NOAA amended section 930.31(a) to further describe the scope of the federal consistency effects test by clarifying the term “functions.” This language is derived from the CZMA's legislative history. Three Federal agencies commented that the definition is too broad and should not include certain federal activities. NOAA disagrees. Federal agency activities are not defined by the type of activity, but rather, whether the activity will have reasonably foreseeable coastal effects. Despite this clear statutory and legislative intent, there have been questions over the years as to whether a particular Federal agency action is subject to the consistency requirement. These questions have primarily arisen for rulemaking and planning activities, and that is why these activities are included in the rule. Clearly, these are Federal agency functions. A rulemaking by NMFS that limits the catch of a species of fish is a rulemaking that affects a State's fishing industry, which is an effect on a coastal use. A rulemaking by the Corps to authorize activities in navigable waters and wetlands under its Nationwide Permit Program will allow activities that affect coastal resources. Likewise, if a Federal agency takes an action that interferes with a coastal use, an “exclusion of uses,”

e.g.

, prohibiting public access or fishing, that is a Federal agency activity that has a coastal effect. A Federal agency activity that initiates a series of events where coastal effects are reasonably foreseeable, is subject to consistency. Congress emphasized this as far back as 1980, H.R. Rep. No. 96-1012, 96th Cong., 2d Sess. 34 (May 16, 1980), and re-emphasized the concept in 1990 when it declared that consistency applies to Federal agency activities with cumulative and secondary direct and indirect effects. Conference Report at 970.

The question at hand is whether such actions will have reasonably foreseeable coastal effects. If so, then consistency applies. If not, then consistency does not apply. (Although the Federal agency may have to provide the State agency with a “negative determination” if: (1) The activity is listed in the management program, (2) the State agency notifies the Federal agency that the State believes that an unlisted activity will have coastal effects, (3) the Federal agency provided consistency determinations for similar activities in the past, or (4) the Federal agency conducted a thorough assessment and developed initial findings on coastal effects.) The question of coastal effects must be made on a case-by-case basis, except where States and Federal agencies have agreed that a class of activities will not have coastal effects (or will have de minimis effects as provided for in section 930.33(a)(3)), and are thus not subject to consistency. Thus, if a Federal agency does not believe that a particular rulemaking or plan will have reasonably foreseeable coastal effects, then the Federal agency does not have to provide a consistency determination.

As to the comments regarding the CZMA and the Outer Continental Shelf Lands Act (“OCSLA”), the Comment makes NOAA's case. The comment talks about activities that do not affect the coastal zone. If that is the case, then the Federal agency does not need to provide a consistency determination and may have to provide a negative determination. As for the matter of 5-year OCS plans by Interior, the position of the United States was made clear by the U.S. Department of Justice by its Office of Legal Counsel (Justice) in a letter from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Justice, to Mr. C.L. Haslam, General Counsel, Department of Commerce, and Mr. Leo M. Krulitz, Solicitor, Department of the Interior, dated April 20, 1979 [Justice Opinion]. In addition, the clear language of the 1990 amendments to the CZMA, and Congressional intent as described in the Conference Report for the 1990 amendments, 5-year OCS plans are subject to the CZMA federal consistency effects test, 5-year OCS plans are not exempted from the consistency requirement as a matter of law or policy, and there are efficient ways to address consistency and 5-year OCS plans if Interior determines that coastal effects are reasonably foreseeable.

See

letter from NOAA's Office of Ocean and Coastal Resource Management to Interior's Minerals Management Service, dated August 7, 1996. If Interior determines that coastal effects from the 5-year OCS plans are

not

reasonably foreseeable, then Interior should issue a negative determination.

Section 18 of the OCSLA requires that procedures be established for consideration of State coastal management programs. Interior asserts that this section and the 1978 amendments to the OCSLA deliberately reject the consistency requirement in favor of providing for consideration of State coastal management programs. NOAA believes that this interpretation of the OCSLA as applied to the CZMA is incorrect for four reasons: (1) The plain language of the conference report (and other legislative history) for the 1978 amendments to the OCSLA does not reject the consistency requirement, (2) the 1978 amendments to the OCSLA added clear language that the consistency requirement was not affected, (3) in 1979 Justice determined that pre-lease sale activities are subject to the consistency effects test, and (4)

even if the intent of the 1978 amendments to the OCSLA was to reject the consistency requirement, the 1990 amendments to the CZMA clarifies that all federal activities are subject to the consistency requirement if there are reasonably foreseeable coastal effects. Further, consideration of management program concerns to the maximum extent practicable at the 5-year OCS plan stage lays a foundation for leasing activities that will also be consistent to the maximum extent practicable.

When the CZMA and the OCSLA are read together, the OCSLA requirement for “consideration” of State coastal management programs is consistent with the CZMA requirement that Federal agencies conduct their activities consistent with State coastal management programs. If the intent of Congress was to repeal the CZMA federal consistency requirement for pre-lease sale activities then it would have specifically said so. As Justice stated:

[T]he intention of the legislation to repeal must be clear and manifest; that every attempt must be made to reconcile the statutes involved; and that a repeal by implication will be found only where there is a “positive repugnancy” between the statutes in question.

Morton

v.

Mancari,

417 U.S. 535, 549-551 (1974);

Borden

v.

United States,

308 U.S. 188, 198-199 (1939).

Justice Opinion at 10. In this case, requiring Interior to conduct an effects test, and to provide a State with a consistency determination or a negative determination, where appropriate, does not interfere with Interior's pre-lease responsibility under the OCSLA.

The 1978 OCSLA conference report contains two references to the CZMA. Under “Considerations,” page 103, the report states:

The House amendment includes among the consideration for a leasing program the policies and plans under the [CZMA]. The Senate bill contains no comparable provision. The conference report follows the House amendment and contains no such specific provision as it is included within the consideration of “laws, goals, and policies of affected States.”

This discussion in the conference report and the corresponding section of the OCSLA specifically require Interior to address State coastal management program requirements and says nothing about rejecting the CZMA federal consistency requirements. The second reference to the CZMA in the conference report is on page 105, and it States:

Both versions provide for regulations as to coastal zone management applicability. The House amendment provides for regulations involving “consideration” of a program “being developed or administered” pursuant to section 305 or 306, respectively, of the [CZMA]. The Senate bill provides for “coordination” of the program with the management program being developed and also for “consistency” to the extent practicable with the management program. The conference report is the same as the House amendment. The Secretary is to establish procedures by regulation for consideration of State coastal zone management programs.

While the Senate version was more specific as to the federal consistency requirement, the House version does not reject the consistency requirement.

Section 608(a) of the 1978 OCSLA amendments expressly provides that: “[E]xcept as otherwise

expressly

provided in this Act, nothing in this Act shall be construed to modify, or repeal any provision in the CZMA” (emphasis added). This language was also included in the section-by-section analysis of section 19 in the House report. Justice Opinion at 12,

citing,

H. Rept. 5-590, at 153, n.52. No section of the OCSLA expressly repeals the CZMA and the sections on pre-lease sale activities do not expressly modify the CZMA. Thus, there is no basis to reject the CZMA consistency requirement based on the conference report language.

Justice also found, after the 1978 amendments, “that neither the [CZMA] Amendments of 1976 nor the [OCSLA] Amendments of 1978 affect the application of § 307(c)(1) to [OCSLA] pre-leasing activities.” Justice Opinion at 2. Justice also reviewed the legislative history and found that it did not exempt pre-lease sale activities from consistency.

Id.

at 12. Justice found that pre-lease sale activities are subject to consistency effects test just like any other federal function.

Id.

at 2.

Lastly, the 1990 amendments clarified that any federal activity is subject to the consistency requirement if coastal effects are reasonably foreseeable. The 1990 amendments to the CZMA also specifically rejected any categorical exemptions. The only test for the application of consistency is the effects test. Thus, even if, arguendo, pre-lease sale activities were exempted, pursuant to the OCSLA amendments of 1978, from consistency, they are now, pursuant to the 1990 CZMA amendments, clearly subject to the consistency requirement.

Applying the consistency requirement to the 5-year OCS program is sound policy for several reasons. First, the CZMA consistent to the maximum extent practicable standard is not onerous (especially at an early stage of OCS development). Second, the 5-year OCS plan offers a good opportunity, early in the OCS process, to attempt to resolve State concerns. Addressing consistency at the 5-year OCS plan stage allows States to identify coastal concerns, such as the location of future lease sales, and reduces potential conflict. Third, Interior NEPA documents have determined that the 5-year plan is a major federal action with expected environmental effects which present an excellent point to determine consistency with management programs.

In 1984, the Supreme Court held that OCS oil and gas lease sales by MMS were not activities subject to the CZMA consistency requirement as the lease sales did not directly affect the coastal zone.

Secretary of the Interior

v.

California,

464 U.S. 312 (1984). Despite NOAA regulations and Justice opinions indicating that the ruling was limited to oil and gas lease sales, other Federal agencies relied on

Secretary of the Interior

to argue that their activities were not subject to the federal consistency requirement. In amending the CZMA in 1990, Congress overturned the effect of the decision in

Secretary of the Interior

and made clear that OCS oil and gas lease sales are subject to the consistency requirement. Conference Report at 970-72. Congress also intended this change to apply to other federal activities (in and outside the coastal zone) in addition to OCS oil and gas lease sales. The remainder of the consistency discussion in the Conference Report makes this clear as does similar discussion in the Congressional Record, 136 Cong. Rec. H 8068 (Sep. 26, 1990) [hereinafter “Congressional Record”] (incorporated into the Conference Report,

see

Conference Report at 975). The Conference Report clearly states that changes to the consistency section clarify that any federal activity is subject to the consistency requirement (regardless of location) if coastal effects are reasonably likely, and that there are no categorical exemptions. Conference Report at 970. The discussion in the Conference Report on whether to list other federal activities that are subject to the consistency requirement, e.g., activities under the Ocean Dumping Act, further clarifies that no federal activities are categorically exempt and that the determination of whether consistency applies is a case-by-case analysis based on reasonably likely effects on any coastal use or resource.

See

Conference Report at 971.

The Congressional Record sheds further light on the intent and the scope of Congress' rejection of

Secretary of the Interior.

Congress noted that since the Court's decision, “other federal agencies have broadly interpreted the case in a manner that would exclude their

activities from [consistency],” and that “[t]he federal consistency provisions are at the heart of the Nation's coastal zone management program and it has become increasingly clear that the combination of Supreme Court dicta and federal agency belligerence are a troublesome combination.” Congressional Record at H 8072-73. Congress not only rejected

Secretary of the Interior,

but eliminated the “ ‘shadow effect' of the Court's decision (i.e., its potentially erosive effect on the application of the federal consistency requirements to other federal agency activities) * * * and also to dispel any doubt as to the applicability of this requirement to all federal agency activities that meet the standard [the effects test] for review.”

Id.

at H 8076.

Within the existing regulations and the proposed rule are means for Interior to provide consistency determinations, where applicable, in a reasonable and efficient manner. Briefly, the regulations would allow Interior to use the effects test to determine whether a consistency determination is required; or could note the lack of information at that 5-year OCS plan stage; and could provide a consistency determination to more than one State under the new section for determinations for activities that are national in scope or affect more than one State; and, finally, States and Interior could agree that the 5-year plan is too early in the OCSLA process, and that consistency determinations may be provided at later stages.

Section 930.31(b). One Federal agency commented that a “development project” should include a characteristic from each of the two groups of descriptors. The “and” in this section has always been interpreted as including at least one characteristic from each of the two groups. However, to make it clearer, the word “includes” has been inserted after “and”.

Section 930.31(c) is added to clarify that CZMA § 307(c)(1) is a residual category. Federal actions that do not fall into subparts D, E, or F are Federal agency activities. CZMA § 307(c)(1)(A);

see

44 Fed. Reg. 37146. One Federal agency commented that NOAA should state that fisheries licensing programs are subject to subpart C. No change is required for this section. A fisheries licensing program would continue to be under subpart C. An individual license to an applicant to conduct an activity would be under subpart D. No change is needed to continue the status quo.

Section 930.31(d) addresses the hybrid nature of general permit programs developed by Federal agencies. This occurs when a Federal agency proposes to replace the need for an applicant to obtain an individual permit with a general set of requirements which, if met by the applicant, would allow the applicant to proceed with the activity without a case-by-case approval by the Federal agency. Two examples are the Corps' Nation-wide Permit (NWP) program under the Clean Water Act § 404 and the Environmental Protection Agency's (EPA's) general National Pollutant Discharge Elimination System (NPDES) permits for discharges from OCS oil and gas facilities. The development of the general permit program is best thought of as a Federal agency activity. Even though a general permit will authorize license or permit activities, the development of the federal requirements is an action by a Federal agency, not an applicant. Moreover, there is not a discreet federal or license permit activity to review and there is not an applicant. Neither the statute nor the regulations contemplated the hybrid nature of general permits. CZMA § 307(c)(1)(A) does provide that a Federal agency is subject to § 307(c)(1) unless it is subject to paragraph (2) or (3)(license or permit activities). However, this does not resolve the matter since § 307(c)(3) does not imply or anticipate a situation where a Federal agency is an applicant for its own approval, and for general permits the Federal agency is not actually undertaking the license or permit activity covered by the general permit. Federal agencies may of course choose to subject their general permit programs to CZMA § 307(c)(3)(A).

Several commenters had various suggested changes to section 930.21(d). NOAA made corresponding changes to the rule. NOAA agrees that subpart C applies to general permit programs and not case-by-case approvals to non-Federal applicants. This was the intent of the section and clarifying language has been added. “Should” is changed to “shall” as the intent was to remove the need for case-by-case reviews where the State agency concurs with the general permit program. Language was added to address the situation where a Federal agency subjects itself to subpart D. Some Federal agencies want to subject their general permit programs to the requirements of subpart D. This gives States greater leverage over the Federal action. If Federal agencies want to do that, NOAA wants to provide them that flexibility. NOAA has added clarifying language regarding the need for State agency concurrence for an individual general permit, where the State objected to the general permit program.

Even though general permit programs are for activities that would normally be subject to subpart D, the consistent to the maximum extent practicable standard still applies since the general permit program is covered under subpart C. It may be possible, although unlikely, that a federal statute requires a Federal agency to conduct a program in such a manner that would not be fully consistent with a State's enforceable policies. The regulations already contain numerous instructions to Federal agencies regarding notice to State agencies and the content of consistency determinations.

Section 930.31(e) is added in response to a comment from a State to clarify existing NOAA interpretation that a modification to a Federal agency activity that has coastal effects and has not been subject to State agency consistency review, is a Federal agency activity subject to the consistency requirement.

NOAA amended section 930.32 to clarify the consistent to the maximum extent practicable standard. NOAA divided section 930.32(a) into 3 subsections. Subsections (1) and (2) are the existing regulations and subsection (3) is new. Minor changes were made to section 930.32(a)(1) and the last sentence in (a)(1) is moved to the end of (a)(2). These changes are made for clarity and brevity; there are no substantive changes in subsections (a)(1) and (2). The term “discretion” as included in the existing regulations and retained in the revised regulations means that the more discretion a Federal agency has under its legal requirements, the more the Federal agency must be consistent with the management program's enforceable policies. In subsection (a)(2), NOAA deleted the term “supplemental” since the CZMA requires that a management program's enforceable policies are requirements, not supplemental requirements. Also, supplemental is somewhat redundant with the rest of the sentence.

Two Federal agencies commented that the consistent to the maximum extent practicable standard was too restrictive and one State agency commented that “legislative history” is not federal legal authority. The final, proposed and pre-existing regulations all correctly describe “consistent to the maximum extent practicable” for purposes of the CZMA. Congress clearly intended Federal agencies to be consistent with State management programs (

see e.g.,

H.R. Rep. No. 92-1049, 94th Cong., 2d Sess. 18-19), the regulations have reflected this for over 20 years, courts have upheld the definition (

see e.g., California Coastal Commission

v.

Navy,

No. 97cv2219 (S.D. Cal. Jan. 28, 1998),

and Congress specifically endorsed the definition in the 1990 amendments in the Conference Report.

Section 930.32(a)(3) clarifies the effect of federal appropriations law on the consistent to the maximum extent practicable standard. A lack of funding does not excuse a Federal agency from having to conduct a federal activity in a manner that is consistent with management program enforceable policies. Management program enforceable policies are, in most cases, in place long before the planning of many federal projects and in advance of budgeting for annual appropriations. A Federal agency cannot avoid any State requirement that it finds burdensome simply by not funding the required action. Advance planning and early coordination can help alleviate these concerns. If Federal agencies know what the State's enforceable policies are then costs can be factored into an agency's planning. Also, just as Federal agencies cannot avoid other federal and State law requirements (e.g., under the Clean Water or Air Acts, NEPA) due to funding constraints, they cannot avoid management program enforceable policies. State enforceable policies are developed pursuant to the CZMA, approved by the Federal Government, and applicable to Federal agencies through the CZMA federal consistency requirement.

One Federal agency commented that section 930.32(a)(3) overturns long held views of Federal agencies and NOAA or preempts the Federal budgetary process. Another Federal agency, while acknowledging that a lack of funding does not automatically render an action not practicable, it may not always be possible to plan for State requirements in advance. Several States commented that NOAA should require Federal agencies to plan for State policies and that the word “only” should be inserted. One commenter wanted NOAA to rewrite the section, and the environmental groups commented that there were contradictory statements in the section. The only modification NOAA has made is to remove the word “discretionary” as it is somewhat redundant and limiting. In response to the comments, it is NOAA's understanding that the “long held views” of the Federal agencies, with the possible exception of one or two offices within one or two Federal agencies, are compatible and in agreement with this section. Moreover, the changes made by Congress to the CZMA in 1990 carry more weight than a Federal agency's “view.” NOAA must base its regulations on the statute. In this case, the definition of “consistent to the maximum extent practicable” is well-established and recognized by Federal agencies and was specifically endorsed in the 1990 CZMA changes.

See

Conference Report at 972. This section is also consistent with previous statements made by the Department of Commerce's General Counsel. The letter that the commenter refers to was a comment submitted to the Corps on the Corps' proposed regulations.

See

letter from Douglas A. Riggs, General Counsel, Department of Commerce, to the Corps (Aug. 20, 1986) (Riggs letter). The comments provided to the Corps in the Riggs letter recommend that the Corps use NOAA's regulations to define coordination between the Corps' program and the coastal States and discusses “consistent to the maximum extent practicable” consistent with NOAA's existing and proposed regulations. The reference to “appropriations” in the Riggs letter is ambiguous at best, but, if interpreted with the statute and NOAA's regulations at the time, merely mean that if something in appropriations law prohibits full consistency, then the Corps is consistent to the maximum extent practicable. Any ambiguities in the Riggs letter were replaced by the clear language of the CZMA as amended in 1990. Problems arise if Federal agencies use dollar amounts specified in appropriations law as part of the consistent to the maximum extent practicable equation. These problems are: (1) The CZMA Presidential exemption in CZMA § 307(c)(1)(B) is the only express exemption due to lack of appropriation amounts (even then, the appropriations needed for full consistency would have to be specifically requested by the President as part of the budgetary process, and Congressional appropriations would have to specifically exclude from funding the cost of being fully consistent); (2) appropriations laws often provide little guidance as to how funds are to be used; and (3) the CZMA mandates that State enforceable policies are substantive requirements. Sometimes appropriations are insufficient due to inadequate planning, failure to include the cost of CZMA compliance in a budget request, or insufficient funds from other sources. The solution is to ensure that Federal agencies plan and budget for full consistency early in the scoping process for an activity and to include specific costs for full consistency in their budgetary process.

NOAA believes the meaning of section 930.32(a)(3) is clear and has not added the word “only.” NOAA has not replaced “should” with “shall” when discussing the admonition for Federal agencies to plan and budget for the costs of being consistent with State policies as there is no basis in the statute for NOAA to impose such a directive. The statute requires the Federal agency to be consistent to the maximum extent practicable with enforceable policies. How a Federal agency does this and how it funds such consistency is determined by other Federal law or each agency's planning, budgetary and policy-making processes. The language of this section is clear regarding appropriations and consistency. There is no contradiction as the section merely acknowledges that appropriation laws are Federal law which may contain specific legal prohibitions to full consistency. Absent such specific prohibitions, the Presidential exemption is the only provision which may be used by a Federal agency to make a finding that a lack of funds prohibits full consistency.

Section 930.32(b) clarifies that in an emergency, or other similar unforeseen circumstance, the Federal agency must still adhere to the consistency requirements, to the extent that exigent circumstances allow. For example, a Federal agency, responding to an emergency, must still provide a consistency determination to the State agency, if time allows. If the time frame for responding to an emergency is too short for a consistency determination, the Federal agency should coordinate with the State agency to the extent possible. To avoid uncertainty in these instances, the Federal agency and State agency may mutually agree to emergency response planning prior to an actual emergency, or develop expedited procedures or a general review for reasonably foreseeable emergency situations and activities. The phrase “exigent circumstances” is used since many agencies respond to emergencies, but they may not be mandated by law to respond within a certain time frame. Thus, their rapid response may be determined by the emergency nature of the activity (

i.e.,

the exigent circumstances), not their discretionary authority. Several State agencies commented that this section needs to be clearer regarding Federal agency responsibilities to ensure that Federal agencies deviate only when there is a true emergency and that even when there is an emergency, the Federal agency still complies with the consistency requirements if the action continues after the emergency is past. NOAA agrees that this section needed revision to better reflect the

“emergency” nature of deviating from consistency. The consistency requirements should not be set aside unless absolutely necessary and if an emergency arises, then consistency should be adhered to once the emergency passes if there is still an activity occurring. NOAA has made corresponding changes to this section.

Section 930.32(c) addresses national security activities that are “classified.” The 1990 changes to the CZMA make it clear that all federal activities are subject to the consistency requirement. Thus, a classified activity that will affect coastal uses or resources is subject to the consistency requirement unless exempted by the President under CZMA § 307(c)(1)(B)). However, under the consistent to the maximum extent practicable standard, the Federal agency need only provide project information that it is legally permitted to release. Despite the fact that a Federal agency may not be able to disclose certain project information, the Federal agency must still conduct the classified activity consistent to the maximum extent practicable with the management program. Concerned management programs may want to consider developing general consistency agreements with relevant Federal agencies for classified activities. The definition of “classified” is adopted from the Freedom of Information Act. Information concerning the national defense or foreign policy is protected from disclosure provided it has been properly classified in accordance with the substantive and procedural requirements of an executive order. As of October 14, 1995, the executive order in effect is E.O. 12,958, 3 CFR 333, reprinted in 50 U.S.C. § 435 note (1994). Generally, it is preferable, however, not to identify the particular executive order in the regulations, because it may be supplanted by a new order and courts have held that agencies should always apply the executive order in effect at the time the classified determination is made—

i.e.,

an agency does not have to go back through all of its old information and reclassify it pursuant to the latest executive order. One commenter said the definition of classified activity was too broad and that the rule should encourage the use of qualified third parties to review classified materials. NOAA does not agree that the language of the subsection is over broad. The subsection adequately instructs Federal agencies to withhold only classified material. NOAA agrees that using a qualified third party to review classified material is appropriate where both the Federal agency and State agency agree.

Section 930.33(a)(1) clarifies that effects on any coastal use or resource are not limited to environmental effects and that a review of relevant management program enforceable policies is necessary to determine whether the activity will affect any coastal use or resource. Two commenters recommended that NOAA add language that an activity has coastal effects if it initiates actions leading to effects (so-called “chain of events” language) and that NOAA add language regarding State-Federal consultation. NOAA has added the chain of events language from section 930.31(a) to this section as well. The sentence regarding consultation with State agencies is not added as the regulations contain sufficient direction for Federal agencies to consult with State agencies.

Section 930.33(a)(2) clarifies when federal consistency does not apply to a Federal agency activity. If there are no effects on any coastal use or resource and a negative determination is not required, then the Federal agency need not provide anything to the State. Several States and the environmental groups commented that Federal agencies should consult with State agencies even when there are no coastal effects or to provide a negative determination. NOAA added the phrase “Federal agency activity” to distinguish this section from the need to consult with State agencies for development projects. The other comments are not accepted, because the intent of this section is to clarify when Federal agencies must consult with State agencies. The CZMA does not require Federal agencies to coordinate with State agencies for activities that do not have coastal effects. To require coordination for such activities would be contrary to the CZMA, unreasonable and place an enormous burden on the Federal agencies with little or no benefit to management programs. NOAA also believes it would also be unwise to “encourage” such unnecessary coordination. The regulations do require that a Federal agency provide a State agency with a negative determination in certain circumstances, and this has been retained in the revised regulations.

Section 930.33(a)(3) provides a process whereby State agencies and Federal agencies can more efficiently address “

de minimis

” activities.

De minimis

activities cannot be unilaterally excluded from the Federal consistency requirement. Two Federal agencies commented that this section will be very useful, but suggested NOAA use a different word than “trifling.” Another Federal agency commented that

de minimis

activities should be excluded, by rule, from the consistency requirement. State commenters supported the section with suggested wording changes. One environmental group commented that

de minimis

activities should only be excluded after opportunity for public comment. Other environmental groups opposed this section as contrary to Congressional intent that no activities be excluded that have coastal effects. These groups also asked that public comment be provided for if the section were retained.

NOAA has replaced the word “trifling” with “insignificant” and has also clarified that

de minimis

applies to activities with insignificant direct and indirect coastal effects. While the use of this section will be limited to activities with little or no coastal effect, NOAA agrees that States need to provide for public input before excluding such activities. NOAA believes that the CZMA provides States with the flexibility to exclude such activities with insignificant effects, by agreement with Federal agencies and with opportunity for public input. NOAA intends to foster efficient and effective administrative mechanisms. This section allows States to do that.

If Federal agencies cannot unilaterally exclude their activities from consistency, neither can NOAA on its own, by rule, exclude activities. The 1990 amendments to the CZMA clearly require that federal actions are subject to consistency if they affect coastal uses or resources. There is no distinction as to the magnitude of effects. Seemingly minor effects may have substantial coastal effects when cumulative and secondary effects are considered. Congress specifically recognized this in 1990. Conference Report at 970-72. There are several problems with listing or mandating a

de minimis

exception, as suggested by the comment. As the court noted in

Environmental Defense Fund

v.

EPA

, 82 F.3d 451 (D.C. Cir. 1996),

modified

by 92 F.3d 1209 (D.C. Cir. 1996), “[t]he ability to create a

de minimis

exemption is not an ability to depart from the statute, but rather a tool to be used in implementing the legislative design. * * * Of course, * * * a

de minimis

exemption cannot stand if it is contrary to the express terms of the statute.” The express terms of the CZMA are that consistency applies to “each” federal activity “affecting” “any” coastal use or resource. Neither the CZMA nor the Conference Report specifically authorize a

de minimis

exception. Conference Report at 970-972. Rather, the Conference Report provides persuasive

authority regarding legislative design: “effects” are to be construed broadly and include reasonably foreseeable direct and indirect effects. Further, Congress amended the CZMA in 1990 to specifically guard against Federal agencies exempting their activities. Thus, any attempt to address

de minimis

activities must be done cautiously and only with the concurrence of the State agency. Finally, many States are concerned with the cumulative effect of seemingly

de minimis

activities. States are not only concerned with resource protection issues, but ensuring that their efforts to address

de minimis

activities through other planning and permitting activities are not compromised by exempting other

de minimis

activities.

The CZMA, however, allows States and Federal agencies to agree to address

de minimis

activities in a flexible manner. The proposed revisions do not provide detailed definitions of

de minimis

activities. Rather, OCRM proposes some general guidelines and then leaves it to the Federal agency and States, with opportunity for public comment, to agree as to what is

de minimis

.

Section 930.33(a)(4) allows State agencies and Federal agencies to mutually agree to exclude environmentally beneficial activities from further State agency review. Two commenters said that environmentally beneficial activities should not be excluded from review, that public comment is needed and that the section should be deleted. NOAA believes that States and Federal agencies should have the flexibility to agree to exclude activities from consistency review that will be beneficial to the environment. This is consistent with the CZMA's directives regarding administrative efficiency and effectiveness.

See

CZMA § 303(2)(G), (H) and (I). NOAA has clarified that environmentally beneficial refers to the protection and restoration of natural resources of the coastal zone. NOAA also recognizes the importance of such decisions to the public and has specifically required that any such exclusion requires public notice and comment pursuant to CZMA § 306(d)(14).

Section 930.33(c)(2) is removed. Outer continental shelf (OCS) oil and gas lease sales are Federal agency activities and are subject to the CZMA consistency requirement.

See

Sections III and IV of this proposed rule. Likewise, pre-lease sale activities are also subject to the consistency requirement if coastal effects are reasonably foreseeable.

See

44 Fed. Reg. 37154 (comment to section 930.71); Letter from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Dept. of Justice, to C.L. Haslam, General Counsel, U.S. Dept. of Commerce and Leo M. Krulitz, Solicitor, U.S. Dept. of the Interior (Apr. 20, 1979).

Section 930.33(d) clarifies the CZMA federal consistency “effects test.” Early Federal-State coordination is emphasized to reduce conflict, build public support, provide a smooth and expeditious federal consistency review, and to help Federal agencies avoid costly last minute changes to projects in order to comply with management program enforceable policies. The earlier the coordination, the less likely it is that conflict will arise. Early coordination also enables a Federal agency to address coastal management concerns while the agency still has the discretion to alter the activity and before substantial resources have been expended.

Section 930.34 is replaced by a new section 930.34, which contains some of the information from the original section 930.34. Other parts of the original section 930.34 are moved to section 930.36.

Section 930.34(a)(2) encourages Federal agencies and State agencies to use existing procedures to coordinate consistency reviews. However, for permit requirements in management programs that are not required of Federal agencies by federal law other than the CZMA, the Federal agency may submit the necessary information in any manner it chooses so long as the requirements of this subpart are satisfied. NOAA has encouraged the practice of management programs using State permitting procedures as an administrative convenience to process Federal agency consistency determinations under CZMA § 307(c)(1) and (2). This results in efficient State consistency reviews by taking advantage of existing review procedures otherwise applicable to permitting actions. This new section is based on a comment in the original 1979 regulations, 44 Fed. Reg. 37147.

There were various comments on section 930.34(a) regarding a description of the nature of coordination being recommended, mandating early coordination, cross-referencing the section to section 930.36(b) and section 930.39, the meaning of the removal of the word “directly,” standardizing notification and response procedures, and adding “cumulative effects” to the section. NOAA has not made any changes based on these comments. The regulations should not specify the nature of the coordination recommended as States and Federal agencies should have flexibility to determine how best to conduct such coordination. NOAA cannot require early coordination. If a State has problems conducting consistency within the specified time periods, then the State needs to make changes to State laws or processes. The State could also develop an MOU with particular Federal agencies. Cross references to other sections are redundant and not necessary. As stated earlier, all references to coastal effects refers back to the definition in section 930.11(g), which includes reasonably foreseeable direct and indirect (cumulative and secondary) effects on coastal uses or resources.

Section 930.34(b) is moved to section 930.36(b) and amended to clarify that the Federal agency must provide a consistency determination to the State while the Federal agency still has the ability to alter the activity to address management program policies.

Sections 930.34(b)(2) and (c) is deleted, with parts of these sections moved to new section 930.34(c). These sections are confusing and are not needed, because the listing provision for Federal agency activities is a recommendation and not a requirement and Federal agencies must provide a consistency determination to applicable States for activities with coastal effects regardless of whether the State has listed the activity. One commenter said that the State agency should provide for public comment before an activity is listed or de-listed. Public comment is already provided for when the State proposes to submit a listing or de-listing to NOAA as a program change, under 15 CFR part 923, subpart H.

Other comments were made on section 930.34(c) by two Federal agencies and several State agencies requesting clarification and changes to unlisted Federal agency activities. In response, NOAA added language to subsections (b) and (c) to clarify that listing of Federal agency activities is optional. Thus, time limits for State agency notification of unlisted Federal agency activities are not appropriate since a Federal agency is required by statute to provide a consistency determination when coastal effects are reasonably foreseeable. In some cases, the Federal agency may not be aware of its CZMA responsibilities and NOAA cannot, by rule, remove the consistency requirement when there may be coastal effects. If a Federal agency actually makes a determination of no effects, in many cases a negative determination will be required so that the State will receive notice with attendant time frames. If a negative determination is

not required, and the Federal agency made a CZMA determination of no effects, it may so notify the State agency as a matter of comity and improved coordination. Previous language is not retained as it was confusing. Consistency is an affirmative duty for Federal agencies and, as such, the State agency listing procedure is not mandatory.

Section 930.34(d) encourages Federal agencies to seek assistance from the State agency in its determination of effects and consistency. At a minimum, State agencies must be able to provide Federal agencies with the applicable enforceable policies. Because identifying a State's enforceable policies can be difficult, Federal agencies noted the importance of this provision. Also, providing the Federal agency with the applicable policies will help focus the Federal agency's efforts on the State agency's concerns. One State agency commented that identifying enforceable policies could be problematic, because a State agency may fail to identify all applicable policies or the Federal agency may overlook policies. One State agency commented that State agencies should have flexibility to decide how to offer assistance, and one commenter said that the public or local governments should be able to identify additional policies.

NOAA did not change the rule based on these comments. The statute and regulations clearly require Federal agencies to be consistent with all applicable enforceable policies, including those that may have been overlooked at one time. Moreover, the regulation already addresses early identification of enforceable policies by stating that such identification is: “based upon the information provided to the State agency at the time of the request.”

The statute and regulations are clear that the Federal agency prepares the consistency determination. If a State does not want to assist the Federal agency in the preparation, then the State loses a good opportunity to ensure that all of its relevant policies are considered and accurately interpreted. Further, NOAA believes that it is the State agency's responsibility to be able to accurately and completely identify its enforceable policies. The implementation of federal consistency at the State level is solely the responsibility of the State agency. Neither the public nor local governments can identify, or interpret, applicable management program enforceable policies for federal consistency purposes.

See

sections 930.6 and 930.11(o) (for responsibilities and definition of the State agency), and response to the comment regarding section 930.6.

Section 930.35 applies to negative determinations and clarifies existing requirements for negative determinations. Various comments were made regarding the State lists and when a negative determination should be provided. NOAA responded by adding a reference to the list in section 930.34(b). The word “relevant” is removed. NOAA has re-inserted the language from existing section 930.35(a)(3). NOAA had previously proposed to eliminate this subsection as not used and redundant. However, States provided persuasive information and examples that demonstrated that this section is used often, and used differently than the other requirements for negative determinations, and provides States with an effective notification of Federal agency activities. A consistency determination is not required if a State agency objects to a negative determination. The determination of coastal effects is made by the Federal agency and even if a State objects, the Federal agency may still rely on its no effects determination and proceed with the activity. In such cases, State and Federal agencies may enter into mediation to resolve the matter, or the State may litigate. NOAA cannot require a Federal agency to provide a consistency determination or a negative determination prior to the 90-day notification requirement. The regulations already contain sufficient encouragement for Federal agencies to consult with State agencies prior to the 90-day period and early in the planning phase of a Federal agency activity.

Section 930.35(b) clarifies the information requirements for a negative determination. A negative determination, by definition, is a finding of no effects. Thus, the information provided to the State agency for a negative determination may not be as substantial as that provided for a consistency determination. One Federal agency commented that it opposed the need to provide an evaluation of enforceable policies as part of its negative determination. A Federal agency's review of a State's enforceable policies is essential for determining coastal effects. This is emphasized in changes to section 930.33(a)(1) (Identifying Federal agency activities affecting any coastal use or resource).

Section 930.35(c) clarifies that if a State agency wishes to disagree with a Federal agency's negative determination, it must do so within 60 days or its concurrence is presumed. Public notice under CZMA § 306(d)(14) is not required for State agency review of negative determinations since negative determinations are not consistency determinations as contemplated by the Act. This section also clarifies that, if a Federal agency were to agree that coastal effects are reasonably foreseeable and that its negative determination was not correct, then the State agency and Federal agency may agree to an alternative schedule to promote administrative efficiency. One Federal agency objected to applying the 90-day statutory notification period and the 60-day State agency response period to negative determinations. Another Federal agency asked that the section be clarified regarding State lists and the postponement of the activity by the Federal agency. Several States commented that Federal agencies should be required to postpone action until disagreements have been resolved. One commenter and the environmental groups commented that States should provide for public comment of the State agency's review of a negative determination. NOAA responded by adding language to subsection (c) to clarify that State agencies are not obligated to respond to a negative determination. As such, States are not required to provide for public participation for negative determinations under CZMA § 306(d)(14). A State could acquiesce in all negative determinations that it receives without providing any review or response. It is simply an acknowledgment of the Federal agency's determination that its activity will not have coastal effects, and that, therefore, the activity is not subject to the consistency requirement. If a State agency believes that the activity will have coastal effects and the Federal agency agrees, then the Federal agency would provide a consistency determination, which would require the State agency to provide for public participation in the State agency's review of the consistency determination. To clarify this, the final clause of the subsection from the proposed rule is deleted as it does not matter whether a new 90-day clock is started or whether an alternative schedule is agreed upon for a consistency determination, public participation would be required.

To be consistent with the change to § 930.43(d), “should postpone” is changed to “should consider postponing.” A Federal agency cannot be required to postpone final action past the 90-day period. If a Federal agency

maintains that coastal effects are not reasonably foreseeable, and has met the procedural requirements of these regulations, then the Federal agency has fully met its consistency responsibilities. If a State disagrees with a negative determination, it can seek mediation where the Federal agency might agree to postpone action, or sue the Federal agency for making an arbitrary and capricious finding that coastal effects are not reasonably foreseeable. The regulations already require that a negative determination be submitted at least 90 days prior to agency action. NOAA does not intend to disturb this long-standing provision. This is based on the statutory requirement for consistency determinations since a Federal agency could determine, after input from a State, that the activity does in fact have coastal effects. The new review period, which is reasonably based on the review periods for consistency determinations, is provided to ensure that States respond in a timely fashion, if a State elects to respond. These review periods will actually provide a Federal agency with a more timely response to a negative determination,

i.e.,

within 60 days rather than 90 days. As States are not required to list Federal agency activities, neither can they be required to list activities for which negative determinations have been prepared in the past. A Federal agency could request that State do so, and it would be in the best interest of the State to provide such information, but it cannot be required.

Section 930.36 is moved to section 930.35(d). Section 930.36 incorporates existing sections 930.37 and 930.34(b) and elaborates on consistency determinations for proposed activities.

Section 930.36(c) clarifies the use of general consistency determinations. Federal agencies may provide State agencies with general consistency determinations for repetitive activities in the same manner that they provide single consistency determinations. A general consistency determination is still only allowed in a limited number of cases where the activities are repetitive and do not affect any coastal use or resource when performed separately. NOAA has added greater flexibility for State agencies and Federal agencies to mutually agree to use general determinations. The primary purpose of a general determination is for repetitive activities. Allowing a Federal agency to unilaterally provide a general determination for non-repetitive activities that have cumulative effects would be inconsistent with the 1990 CZMA changes. A general consistency determination may be used for de minimis activities only when the Federal agency and State agency have mutually agreed to do so. The terms “periodic” and “substantially similar in nature” are proposed to be deleted as the concept of “repetitive” includes these terms. One Federal agency commented that the section was vague. Several States commented that coordination with States prior to submitting a general determination should be required. Periodic consultation on a general consistency determination will vary depending on the nature of the Federal agency activity. Thus, NOAA is leaving this phrase unchanged and allowing States and Federal agencies to develop consultation periods. As is the case for non-general consistency determinations, Federal agencies cannot be required to consult with States prior to the 90-day period. It is certainly in the interest of all concerned to consult prior to submitting a general consistency determination and the regulations contain ample encouragement for early coordination.

Section 930.36(d). One Federal agency commented that a State agency should not be able to re-review earlier phases of an activity with which the State concurred. The regulation is clear that a consistency determination will be provided for each phase. By definition, the State then reviews and objects or concurs with each determination. The State cannot revisit its earlier concurrence. If the activity is substantially changed then the later phased consistency determination should cover the changes from the previous phase or new section 930.46 may require a supplemental determination.

Section 930.36(e) describes a method to efficiently address consistency requirements for a federal activity that is national or regional in scope. For example, a federal activity, such as a rulemaking or planning activity, may apply to more than one coastal State where coastal effects are reasonably foreseeable. Providing each State with a separate consistency determination may be difficult, inefficient and not cost effective, even with early coordination. The proposed regulation provides States and Federal agencies with the means to effectively coordinate, ensure adequate consideration of management programs, and provide an efficient, cost effective and timely method for meeting the consistency requirement. Two Federal agencies expressed concerns on whether national rulemaking or plans should be subject to consistency. One Federal agency commented that it was unclear how the process differed for national consistency determinations. One State commented that a State should be able to require additional information to start the consistency review period. One commenter said that a national consistency determination should require essentially the same information as that for a consistency determination submitted to one State.

NOAA disagrees that this subsection will not facilitate the development of consistency determinations that apply to multiple States. This section allows Federal agencies to send one consistency determination applicable to all States, using one discussion for coastal effects and enforceable policies that are in common among the States. There would be individual State sections in the consistency determination only for those State effects and policies that are not in common. The second sentence in subsection (e)(2) has been amended to clarify this. As discussed in response to comments on section 930.31, the CZMA makes no distinction between Federal agency activities that are local in scope and those activities, regulations, and plans, that are national or regional in scope. Whether these national activities are subject to consistency is based on whether coastal effects are reasonably foreseeable as a result of the activities. NOAA has not added language regarding additional information. Such a circumstance is already addressed in the regulations. Section 930.39 describes the content of a consistency determination. If the information required by section 930.39, in conjunction with section 930.36(e), is not provided, then the Federal agency has failed to submit a complete consistency determination and, thus, the 60-day State agency review period has not started and will not start until the information is provided. To require separate consistency determinations under this section would defeat the purpose of this section.

Section 930.37(c) is moved to section 930.36(d) and amended to clarify that phased consistency determinations refers to development projects and activities. Section 930.37 clarifies coordination of consistency with the use of NEPA documents to address consistency requirements. Federal agencies are not required to address consistency requirements in NEPA documents, but may use NEPA documents, at the Federal agency's discretion, as an efficient and effective mechanism to address the consistency requirements. The use of NEPA documents for consistency purposes does not, however, mean that a NEPA document necessarily satisfies all

consistency requirements. The Federal agency must still comply with the applicable sections in 15 CFR part 930, subpart C. Section 930.37 provides flexibility for States and Federal agencies to agree to different NEPA/consistency review procedures. Coordination between States and Federal agencies on federal consistency requirements should occur at an early stage, usually at the draft environmental impact statement (EIS) stage, and before the Federal agency reaches a significant point in its decision making and while the Federal agency still has discretion to modify the activity. A final EIS is a significant point in an agency's decision making and further modifications are much harder to do and require more resources. It is more efficient and in keeping with the intent of consistency for State agencies and Federal agencies to coordinate at the draft EIS stage. Arrangements should be made to do supplemental consistency reviews in case the project substantially changes in the final EIS or Record of Decision. Several commenters noted how useful this section will be regarding NEPA and CZMA coordination. One commenter, however, asserted that the section is flawed and is contrary to NEPA. NOAA disagrees.

NOAA has not added language to the rule regarding when to do consistency reviews in conjunction with NEPA, as many Federal agencies and States earlier commented that they want the flexibility to work out the timing of consistency and NEPA among themselves. Thus, the discussion above regarding draft EIS documents remains. This section is not flawed, and in fact, is consistent with and complements NEPA and CEQ's regulations. The CEQ regulations referred to in the comment discuss integrating NEPA, not the CZMA, into a Federal agencies decision making process. In addition, NEPA and the CZMA have different “effects tests.” Thus, it may be that a NEPA document may not contain needed CZMA information or that a conclusion regarding effects for NEPA purposes will not satisfy the CZMA effects test. What this section does do is encourage government efficiency and reduce paperwork by specifically encouraging Federal agencies to use NEPA as a vehicle to address all CZMA consistency issues, as well as NEPA issues in the same environmental review document.

Section 930.38. One State asked if program changes, including additions to management programs through the incorporation of a State's Coastal Nonpoint Program, applies to this section. NOAA's response is that all enforceable policies that become part of a management program through program changes, including the program change process for Coastal Nonpoint Programs, apply for federal consistency purposes once approved by NOAA.

Section 930.39(a) is amended to clarify that the Federal agency's evaluation of the management program's enforceable policies is included in the consistency determination, and that the Federal agency's consistent to the maximum extent practicable justification accompanies the consistency determination, if the Federal agency is aware that its activity will not be fully consistent with the management program's enforceable policies. Section 930.32(a)(2) already requires a written justification to the State agency describing the legal impediments to full consistency. The State agency needs to know this information as soon as the Federal agency is aware of an inconsistency. Thus, when a Federal agency knows that it is not fully consistent prior to issuing its consistency determination, it should provide its justification to the State agency as part of its consistency determination. There are times, however, when the Federal agency believes it is fully consistent and does not learn that it is not fully consistent until after submittal of the determination. In such cases the Federal agency needs to provide its justification to the State agency as soon as it learns of the activity's inconsistency, in any event before the end of the 90-day period. The last sentence in subsection (a) is derived from the last sentence of former section 930.34(a). One Federal agency commented that this section should allow for the Federal agency's evaluation of enforceable policies in documents accompanying the consistency determination. NOAA agrees. The evaluation of relevant enforceable policies requires that the State agency identify those policies upon request. The regulations already allow a Federal agency to provide its determination in any manner it chooses. Thus the evaluation could be in an accompanying NEPA document if the document was provided to the State agency along with the consistency determination. The section has been amended to more clearly address this.

Section 930.39(b) is amended to conform to CZARA. Federal agencies are responsible for evaluating the consistency of nonassociated facilities or any other indirect effects if the effects are reasonably foreseeable. The last clause is deleted since it is inconsistent with CZARA and the effects test and is covered under the proposed new definition of effects. One Federal agency commented that this section incorrectly expands the consistency requirement to the effects of activities. Consistency is based on the effects of Federal agency activities. Thus, there is no expansion of consistency beyond the statutory requirement. If a Federal agency did not consider the effects from its activity, there would be no basis on which to make its consistency determination or negative determination. The last clause is deleted since it is inconsistent, perhaps redundant, with the coastal effects definition, particularly the clarifications made by CZARA. While the CZMA does not confer upon Federal agencies jurisdiction to regulate activities beyond that granted to the Federal agency by its authorities, under the CZMA “effects test” Federal agencies are responsible for evaluating the consistency of nonassociated facilities or any other indirect effects if coastal effects are reasonably foreseeable. This is now more appropriately covered under the new definition of effects contained in section 930.11(g).

The last sentence of section 930.39(c) is deleted, because it is redundant with the rest of section 930.39(c). One Federal agency commented that adequate consideration is vague. NOAA has deleted “adequate” as the word is vague and “consideration” provides sufficient guidance to Federal agencies regarding non-enforceable policies. By definition, a Federal agency does not have to be consistent with non-enforceable policies, but, hopefully, will at least consider such policies and satisfy the policies if possible. If a management program does not have an applicable enforceable policy, then the Federal agency need not evaluate any corresponding coastal effects. However, experience has shown that it is very rare that a management program does not have some applicable enforceable policy, albeit a broadly applicable policy.

Section 930.39(d) is amended to clarify that if a Federal agency applies its more restrictive standards, it must, under the consistent to the maximum extent practicable standard, notify the State agency that it is proceeding with the activity even though the more restrictive federal standard may not be consistent with the State standard.

Section 930.39(e) clarifies the relationship between State permit requirements and the federal consistency requirements. Federal agencies must obtain State permits (including management program permits) when required by Federal law (other than the CZMA). For example,

the Clean Water Act (CWA) requires Federal agencies to obtain State permits and certifications that regulate and control dredging and water pollution within the navigable waters of the State.

See

33 USC §§ 1323, 1341, 1344(t);

Friends of the Earth

v.

Department of the Navy,

841 F.2d 927 (9th Cir. 1988). However, in some instances, there may be an issue as to the scope of a State or local permit that a Federal agency is required to obtain by another federal law. To insure that such a requirement is “not enlarged beyond what the language [of the federal law] requires,”

Department of Energy

v.

Ohio,

503 U.S. 607 (1992),

citing,

Eastern Transportation Co.

v.

United States,

272 U.S. 675, 686 (1927), and to minimize conflicts in situations where the scope of the State permit requirement is an issue, Federal agencies or States should consult with the U.S. Department of Justice on the scope of the federal law. When a Federal agency is not required to obtain a State permit, the Federal agency must, pursuant to the CZMA, still be consistent to the maximum extent practicable with management program enforceable policies, including the standards that underlie a State's permit program.

Section 930.40 is amended to simplify the reference to section 930.39, by deleting subsections (b) and (c) and adding a reference to section 930.39 at the end of section 930.40.

Section 930.41(a) and (b) is amended to simplify terms used in these regulations, extend the time for State agency review of consistency determinations from 45 to 60 days, and clarify that State agency objections must be received by the last day of the 60-day review period (or last day of an extended period). Presently, a State response to a Federal agency's consistency determination is either an agreement or disagreement, and a State agency's response to an applicant's consistency certification for a federal license or permit activity is either a concurrence or an objection. The difference is largely semantic and confusing. Thus, all State responses to any consistency determination or certification are now either a concurrence or an objection. The intent of the change regarding the State agency's response is to clarify when the Federal agency may presume concurrence.

The time period for a State agency's response to a consistency determination would be increased from 45 days to 60 days to allow States to provide adequate public participation as required by CZMA § 306(d)(14) (added in 1990 by CZARA). Federal agencies must provide consistency determinations to State agencies at least 90 days prior to federal action. CZMA § 307(c)(1)(C). Currently, NOAA regulations require States to respond within 45 days of receiving the determination. Section § 930.41(a). If a State needs more time, a Federal agency must allow one 15-day extension. Section 930.41(b). These regulatory requirements were promulgated prior to the addition of CZMA § 306(d)(14). OCRM's Final Guidance implementing CZMA § 306(d)(14) did not change these requirements. 59 Fed. Reg. 30339. It will be difficult for many States to meet the public participation requirement under State law and still respond within 45 days. The likely result of this new requirement is that for most reviews of consistency determinations, States will need at least one 15 day extension, resulting in at least a 60-day review. Thus, in order for States to develop meaningful public participation procedures, and to provide greater predictability for Federal agencies as to when a State agency's consistency review will be completed, NOAA has provided States with a 60-day review period (extension provision remain the same). This should alleviate the inconsistency between current regulations and the CZMA § 306(d)(14) requirement. The total time allowed before a Federal action may commence (90 days) does not change.

Two Federal agencies and one interest group commented that they disagree with extending the State agency's response time to 60 days. One Federal agency commented that responses should be received by the last day and not postmarked. Several States commented on the wording of the section related to “postmarked” as provided for in the proposed rule. NOAA agrees that using “postmarked” may create confusion and will not provide the notification deadline that is needed for consistency reviews and which are contemplated by the statute and which has been the long-standing interpretation of the existing regulations. By statute, there must be a date whereby concurrence can be presumed. NOAA also agrees that the use of fax machines and email make it much easier for the State agency to send its response, and the Federal agency to receive it by the deadline. This change is also reasonable given the longer State agency review period for Federal agency activities. Thus, NOAA has changed “postmarked” to “receipt” in sections 930.41(a), 930.62(a), 930.78(b) and 930.155(d).

NOAA does not believe that the reduction in time between a State agency's response and the end of the 90-day period will substantially alter any necessary discussions between the State and the Federal agency. Experience shows that States and Federal agencies usually know before a State response if there is a problem. Usually a Federal agency will delay starting its activity past the 90 days to try and reach agreement with the State. If the Federal agency cannot do this, and it is consistent to the maximum extent practicable, then it can proceed at the end of the 90-day period.

The word “immediately” is retained since the Federal agency is under the impression that the 60-day review period has begun and needs to know as soon as possible if its determination and accompanying information is not complete. Even two weeks may be too long a time. There should not be a problem with networked management programs, as a completeness review is minimally substantive and should just be making sure the information required by section 930.39(a) is included. The information may not have everything the State wants, but that is not what is required by section 930.39(a) to start the review period.

Section 930.41(c) is amended to clarify that the 90-day period begins when the State agency receives the determination and that Federal agency action cannot commence prior to the end of the 90-day period unless the State agency concurs or the Federal agency and the State agree to a shorter period.

Section 930.41(d) is added to clarify that States cannot unilaterally place an expiration date on their concurrences. States must decide if they can concur with a consistency determination absent an agreement on time limits. One Federal agency commented that the language of the section is vague. States commented that the section may not be necessary and could be covered by section 930.4 (conditional concurrences). The word “modifications” has been inserted to clarify that a later action involving a previously reviewed activity could be a later phase or a modification. A cross-reference to supplemental consistency determinations under section 930.46 is also added.

There are several reasons why time limits are not acceptable. First, the CZMA requires a Federal agency to provide a consistency determination 90 days before final Federal agency approval. CZMA § 307(c)(2). The CZMA does not allow States to re-review the same activity. Second, State consistency decisions and objections must be based on the enforceable policies of a State's management program. A time limit on a

State's concurrence would be based on the possibility that the activity or the State's program would change and not on enforceable policies, as required by the CZMA. Further, State agencies and Federal agencies may agree to a time limit for a State's concurrence, including concurrences for de minimis activities and general determinations. The CZMA does, however, require Federal agencies to carry out each activity in a manner that is consistent to the maximum extent practicable with a State's enforceable policies. Thus, if a project substantially changes between the time that the State reviews the activity and when the activity begins, the Federal agency must provide a new or supplemental consistency determination since the State would not have had the opportunity to review the “new” activity. This is precisely the situation section 930.46 is designed to address. Section 930.46 only applies to previously reviewed activities that have not yet begun and the coastal effects are substantially different then as originally reviewed by the State agency.

Regarding the use of a conditional concurrence under section 930.4 to impose time limits, the CZMA only authorizes one bite of the consistency apple for any particular Federal agency activity. It is a basic consistency requirement that Federal agencies provide consistency determinations for proposed activities and the States review the activity based on the information available at that time. If an activity later substantially changes, the Federal agency may have to provide a supplemental or a phased consistency determination. A conditional concurrence, therefore, cannot be used to provide for subsequent review of the same activity. For the same reasons a “time” condition would also be inconsistent with the CZMA. That is why a State should object rather than issue a conditional concurrence. Thus, NOAA has not cross-referenced section 930.4. If a State agency does issue a conditional concurrence with a time limit, and the Federal agency does not agree, the conditional concurrence automatically becomes an objection. It may also be that the objection would be invalid unless the time limitation had a basis in an enforceable policy. Under the proposed section 930.41(d), a State agency and a Federal agency may agree on a time limitation. The proposed section 930.41(d) provides for instances where a project changes or the effects change.

Section 930.41(e) clarifies that a State agency may not assess the Federal agency with a fee for the State's review of the Federal agency's consistency determination, unless such a fee is required under federal law applicable to that agency. One State commented that fees should be allowed. NOAA disagrees. The CZMA does not require Federal agencies to pay processing fees. OCRM cannot require such fees by regulation. Thus, States cannot hold up their consistency reviews or object based on a failure by a Federal agency to pay a fee. Such a requirement would require a change to the CZMA itself, or other federal laws. This is beyond the scope of these revisions to the regulations.

Section 930.42 is moved to section 930.43. New section 930.42 details the public participation requirement for Federal agency activities. Public participation for a State's review of a Federal agency's consistency determination is required by CZMA § 306(d)(14).

See

NOAA's final guidance on this requirement, 59 Fed. Reg. 30339. The statutory section requires that “[t]he management program provide for public participation in permitting processes, consistency determinations, and other similar decisions.” Proposed section 930.42 is sufficiently broad to give States flexibility in developing public participation procedures that meet the intent of § 306(d)(14). NOAA reviews each State's procedures during regularly scheduled evaluations of management programs under CZMA § 312 for compliance with the public participation requirement under § 306(d)(14), and will recommend procedural changes if necessary to meet proposed section 930.42. The purpose of the requirement is to provide the public with an opportunity to comment to the State agency on the program's review of a federal activity for consistency with the enforceable policies of a management program, in addition to commenting on the activity itself. Thus, a Federal agency cannot be required to publish or pay for the notice.

A number of States commented that electronic public notices, including web sites, should be acceptable public notice. Other States had various comments on notice in remote areas, the Federal agency providing names and addresses of interested persons, notice for the affected area, and joint notices. The environmental groups commented that electronic notices should not be a procedural option. Electronic notices cannot be the only form of public notice used. Many people do not yet have ready access to a computer or the Internet. Thus, the regulations have been clarified to exclude electronic notices as the sole notice. They can be used in conjunction with other notices. Electronic means can also be used as the source of additional information since people can use public libraries and other facilities that have Internet access. In very rural areas where there are no local papers or access to State gazettes, etc., the State will have to use its best judgement as to how to adequately notify the public. In remote areas of Alaska, this may mean posting a notice in a Post Office or other public area. The current regulations allow this flexibility. Federal agencies are under no obligation to fulfill the requirements of this section regarding public comment on the State's review of a consistency determination. Thus, the Federal agency is under no obligation to provide names of interested parties as this may result in an expectation, and demand, that the Federal agency do so. NOAA has changed “in the area” to “for the area” as “for” is broader and provides the State with flexibility for providing adequate public notice, as suggested in the comment. However, NOAA reiterates that electronic notice cannot be the sole method of notice to the public. NOAA has included the language encouraging joint notices as this would not impose an additional burden on the Federal agency, and if used, should be a more efficient use of Federal and State resources.

Section 930.42(a) is re-designated as section 930.43(a) and amended to clarify that State objections must be based on the enforceable policies of an approved management program and that the objection letter must describe and cite the enforceable policies, and must state how the federal activity is inconsistent with the enforceable policy. This section also clarifies that the identification of alternatives by the State is optional, but that State agencies should describe alternatives, if they exist.

Sections 930.43, 930.63(b) and (d). One Federal agency commented that the mandatory nature of the current regulations regarding the identification of alternatives by the State agency be retained. Two commenters said that it is not clear what happens when an applicant adopts a State alternative. Several States commented that States should not have to re-design a project through describing alternatives.

While identifying alternatives is useful to States, Federal agencies and applicants, the CZMA does not require that States identify alternatives. The optional nature of alternatives was recognized in the previous regulations by the phrase “(if any)” and is necessary since the identification of an alternative does not remove the State agency's objection. An applicant would always have to go back to the State agency to

have the State agency remove the objection to allow Federal agency approval (unless the applicant appealed the State agency's objection to the Secretary). NOAA also agrees that State agencies should not be responsible for the design of a project, although States should describe alternatives with sufficient specificity to demonstrate their reasonableness. The regulations recognize this in section 930.63(d) by having the applicant determine its alternative options “in consultation with the State agency: * * *” This would allow the State agency to describe an alternative, but would still require the applicant to “design” the alternative and to consult with the State agency on whether the altered project was consistent. Then, when an applicant adopts a consistent alternative, the State would remove its objection and the Federal agency could approve the activity so long as the approval was consistent with the alternative agreed to between the State and the applicant.

Section 930.43(d) clarifies that, in the event of a State objection, the remainder of the 90-day period should be used to resolve differences and that Federal agencies should postpone agency action after the 90-day period, if differences have not been resolved. It also clarifies that, notwithstanding unresolved issues, after the 90 days a Federal agency may only proceed with the activity over a State's objection if the Federal agency clearly describes, in writing, the federal legal requirements that prohibit the Federal agency from full consistency. Several Federal agencies commented that language contained in the proposed rule regarding Federal agency obligations when the Federal agency asserts it is fully consistent was unworkable and not consistent with the statute. Several States commented that clarifying language was needed regarding when and how the Federal agency should submit its consistent to the maximum extent practicable justification. Two States commented that mediation should be required if there is a dispute and before the Federal agency proceeds with the activity. One State commented that the section should include a statement that the State may institute legal action if not satisfied with the Federal agency's response. The environmental groups commented that a Federal agency should not be able to proceed with an activity over a State's objection.

NOAA understands that there may be disagreements between a State agency and Federal agency as to whether a Federal agency is fully consistent with a management program's enforceable policies. This is particularly problematic where the State's policy is broadly worded. A Federal agency activity that is fully consistent and has met the consistency requirements should be able to proceed with the activity. A State agency may object based on its interpretation of its policies. In such cases, the State may be requiring consistency for an interpretation that is not set forth in the enforceable policies. This does not make the enforceable policy invalid, but it does create a factual issue regarding full consistency. In such cases, mediation may resolve the matter, or an MOU developed, as was the case between Alaska and the Forest Service. If this does not work, and the Federal agency elects to proceed with the activity after 90 days, then the State may choose to litigate the question of whether the Federal agency is in fact fully consistent. The section has been modified accordingly.

In response to one comment, NOAA agrees that it is the “Federal agency's belief” that it is consistent that controls its action, and has addressed this comment by including the phrase: “the Federal agency has concluded * * *” NOAA has also added a reference to the new language in section 930.39(a), requiring that the Federal agency's consistent to the maximum extent practicable justification be included in the consistency determination if the agency is aware that its activity will not be fully consistent at the time the determination is submitted to the State agency.

The use of the word “cannot” and the use of the suggested “can” may both cause misunderstanding. The intent of section 930.43(d) is to provide an appropriate mechanism for the Federal agency to examine whether it is prohibited by law from acting in a manner consistent to the maximum extent practicable. To be absolutely clear in this very important, and much discussed section, NOAA has not used “can” and has replaced the word “cannot” with specific language from the consistent to the maximum extent practicable standard in section 930.32.

Mediation under the CZMA and NOAA's regulations is optional and non-binding. NOAA cannot, by rulemaking, require a Federal agency to enter into mediation. Likewise, if a State requests mediation, the Federal agency is not required to participate. As for notice to the Federal agency regarding possible State litigation, a State may always sue a Federal agency under the Administrative Procedures Act. It is not necessary to place such language in this section, although the regulations discuss State enforcement, including legal action, in the new section 930.5.

This section does not refute the basic purpose of the federal consistency requirement. A fundamental component of federal consistency is that a Federal agency, despite a State's objection, may proceed with a Federal agency activity after the 90-day period, so long as the Federal agency describes to the State agency, in writing, the federal legal requirements that prohibit the Federal agency from being fully consistent with the enforceable policies of the State's management program. Section 930.43(d) clarifies this component of the CZMA and existing NOAA regulations. As was suggested by several commenters, the CZMA federal consistency requirement can be thought of as a limited waiver of federal supremacy. (Under Article VI, cl. 2 of the U.S. Constitution, Federal law is the supreme law of the land and State law cannot interfere with the execution of federal law.

See McCulluch

v.

Maryland,

17 U.S. (4 Wheat) 316 (1819). Congress, as part of its legislative powers, can limit the Federal Government's supremacy and sovereign immunity.) The waiver of federal supremacy in the CZMA is the requirement to be consistent with State management programs. The limits are defined by the consistent to the maximum extent practicable standard and CZMA §§ 307(e) and (f). CZMA § 307(e) requires that the CZMA does not supersede, modify or repeal existing law. CZMA § 307(f) requires that the CZMA shall not affect the pollution control requirements of the Clean Water Act or Clean Air Act. The CZMA § 307(c)(1) requires that federal activities “be carried out in a manner that is consistent to the maximum extent practicable” with the enforceable policies of a State's management program. The phrase “be carried out” implies that the activity may proceed. The qualifier is that the activity must be carried out in a manner consistent to the maximum extent practicable with a State's enforceable policies. Further, the statute expected that federal activities could proceed after 90 days by stating that Federal agencies provide a consistency determination no later than 90 days “before final approval” of the federal activity. Congress stated that it is not anticipated that there will be many situations where as a practical matter a Federal agency cannot carry out its activities without deviating from approved management programs. H.R. Rep. No. 1049, 94th Cong., 2d Sess. 19 (1972). Congress also found that there may be instances where a Federal agency activity cannot be conducted

fully consistent with a State's enforceable policies and may proceed over a State's objection.

Id.

It is precisely this legislative intent that led, in 1979, to NOAA's regulations requiring full consistency unless full consistency is prohibited based upon existing legal authority applicable to the Federal agency's operations. Deviation from full consistency is allowed due to unforeseen circumstances which present a substantial obstacle preventing complete adherence to the management program. Further evidence of Congressional intent regarding whether a Federal agency activity may proceed over a State's objection is found in the different language in the other CZMA federal consistency sections. CZMA §§ 307(c)(3)(A), (B), and 307(d) all specifically prohibit a Federal agency from issuing its approval or funding if a State agency has objected. Because Congress included such clear language in these three other instances, it follows that Congress intentionally excluded this meaning from other sections,

i.e.,

CZMA § 307(c)(1). If Congress intended to require that a Federal agency activity proceed only with State agency agreement it would have said so.

The Presidential exemption contained in CZMA § 307(c)(1)(B) does not support the view that Federal agencies may not proceed over a State's objection. The Presidential exemption was added to address a situation where a State agency disagrees with a Federal agency's consistency determination, resolution by mediation is not likely, the State agency sues the Federal agency, and the Court finds that the activity is not in compliance with a State's enforceable policies. In those instances, the Secretary may request that the President exempt the specific activity from consistency if the President finds that the activity is in the paramount interest of the United States. The section was added to be consistent with similar extraordinary remedies of other federal statutes and to reinforce the point that no Federal agency activities are categorically exempt from the consistency requirement. Congress would not have couched a requirement that Federal agencies cannot proceed over a State agency's objection in an elaborate Presidential exemption.

NOAA's regulations further define the long-standing interpretation that Federal agencies may proceed with an activity despite a State agency's objection. NOAA's definition of consistent to the maximum extent practicable requires full consistency “unless compliance is prohibited based on the requirements of existing law applicable to the Federal agency's operations.” Section 930.32(a)(existing). This interpretation is also supported by a comment to the original regulations where NOAA stated that “Federal agencies are encouraged to suspend implementation of the activity beyond the 90-day period pending resolution of the disagreement.” Section 930.42(c) (44 Fed. Reg. 37149, Monday, June 25, 1979) (emphasis added). Thus, if a Federal agency asserts full consistency is prohibited and describes the legal authority which “limits the Federal agency's discretion to comply,” the Federal agency may proceed with the activity at the end of the 90-day period.

Id.;

Section 930.34(b) (existing).

Section 930.46 addresses the situation where a proposed activity previously reviewed, but not yet begun, will have coastal effects substantially different than originally described to the management program. A similar section is repeated at the end of subparts D and F.

See

sections 930.66 and 930.101. Two commenters said that the State agency should be required to notify others under subsection (b). Several other States commented that there should be a rebuttable presumption that a project is subject to re-review if the project has not commenced in 5 years. One commenter asserted that this provision would put offshore projects in a never-ending loop of approval and should be re-worked to reduce this uncertainty.

NOAA has not changed the rule, based on these comments. If a proposed project has substantially changed, and the State has not reviewed the changes, then it is a new project, and a new consistency determination is required. Since the consistency test depends on whether coastal effects are reasonably foreseeable, and not on the nature of the activity, substantial new coastal effects would also trigger the consistency requirement. Thus, where an activity has not started, substantial new effects have been discovered, and the State has not had the opportunity to review the activity for consistency in light of these effects, sections 930.46, 930.66 and 930.101 would require a supplemental consistency determination or certification. This is an affirmative duty on the part of Federal agencies and applicants. However, there may be times when Federal agencies or applicants do not provide supplemental consistency statements. In such cases, subsection (b) of these sections allow a State agency to notify the Federal agency or applicant that it believes that a supplemental review is needed. Such notification is at the State agency's discretion, thus “may” is retained and “shall” is not used. States may seek compliance through negotiation, mediation or litigation. This proposed section is similar to NEPA requirements for supplemental statements.

See

40 CFR section 1502.9(c)(1). NOAA expects that this section will be little used, but where it is used will eliminate confusion as to the consistency process and brings the regulations into conformance with the changes made by CZARA.

NOAA has not added a rebuttable presumption that if a project has not commenced within a certain amount of time, it should be subject to re-review. Time is not the issue here. The intent of this section is not to give the State agency a second bite at the consistency apple, but rather, to give States the opportunity to review substantial changes in the project or foreseeable coastal effects not previously reviewed by the State.

Finally, NOAA rejects the argument that supplemental review will create a never-ending loop of approval. The sections apply only to activities that have not yet begun and which are substantially different than that which the State previously reviewed. Even without these sections, Federal agency activities meeting these two criteria would be required to provide a new consistency determination and for license or permit activities, in many cases applicants would provide a new consistency certification since such changes would require a modification to the federal application that would require consistency review. Regarding offshore projects, a supplemental coordination section is not added to subpart E, since subpart E and the regulations implementing the Outer Continental Shelf Lands Act already contain a detailed process for supplemental consistency reviews when OCS plans have substantially changed. NOAA is not disturbing this existing coordination between the two statutes.

Subpart D—Consistency for Federal License or Permit Activities

Sections 930.50 and 930.51(a) are amended to be consistent with the statutory language referring to “required” federal license or permit activities. A required federal approval means that the activity could not be performed without the approval or permission of the Federal agency. The approval does not have to be mandated by federal law, it only has to be a requirement to perform the activity. One commenter suggested adding additional effects language to section 930.50. Additional effects language is not added to this section, because effects are defined in section 930.11(g), and apply throughout the regulations when discussing coastal effects.

Section 930.51(a) clarifies that a federal lease to a non-federal applicant,

e.g.

, to use federal land for a private or commercial purpose, is a form of authorization or permission under the definition of federal license or permit, with the exception of leases issued pursuant to lease sales,

e.g.

, under the Outer Continental Shelf Lands Act, which are Federal agency activities under 15 CFR part 930, subpart C. One Federal agency commented the definition is extremely broad and that it needs to clarify the application of this subpart to OCS plans. The commenter further states that the regulation seems to ignore the importance of effects when determining whether a federal license or permit is subject to consistency. Finally, this Federal agency comment argued that OCS lease suspensions should not be subject to consistency, and the language regarding “lease sales” should be clarified to distinguish lease sales from leases. One State commented that a “lease” is a form of approval regardless of other applicable federal approvals. One State and another commenter suggested that “right-of-way” permits and “easements” be added to the definition. One commenter urged that a decision that no consistency review will take place should be subject to public comment.

The definition of license or permit has been in place and well-understood for over 20 years. In NOAA's view, an inclusive description of federal approvals is necessary to implement Congress' intent that consistency apply to all federal actions that have coastal effects. The statute is clear that OCS plans, and federal approvals described in detail in such plans, are subject to subpart E, and the section now states this.

The term “federal license or permit” refers to any required federal approval. Whether a license or permit activity is subject to the consistency requirement does depend on whether coastal effects are reasonably foreseeable and which is determined by NOAA either when the State agency lists (

see

section 930.53) a particular federal approval in its management program or when a State agency seeks to review an unlisted activity (

see

section 930.54). The same applies to OCS “lease suspensions.” As stated in NOAA's letter to the California Coastal Commission, dated November 12, 1999, OCS lease suspensions are federal license or permits under NOAA's regulations. However, NOAA made no determination whether there were coastal effects resulting from the suspensions at issue and, thus, no determination whether consistency applied. If a State agency were to review a lease suspension for consistency, the State's review would be limited to the effects of the lease suspension itself and any cumulative effects that may flow from the suspension(s). Since a lease suspension is not a renewal of the lease, the State could not review the underlying lease. When requesting a suspension, a lessee is not requesting a re-leasing approval, and MMS does not re-evaluate the lease when granting or directing a suspension. If a lease were to terminate and MMS were to “re-lease” the tracts, then the re-leasing would be subject to consistency under CZMA § 307(c)(1).

In NOAA's November 12, 1999, letter, NOAA concluded that as a general matter, lease suspensions do not affect coastal uses or resources and do not generally authorize activities to occur during the suspension period that can be reasonably expected to affect coastal uses or resources. Therefore, it is highly unlikely that NOAA would approve the listing of lease suspensions in a management program as a federal license or permit subject to consistency, or approve a State agency's request to review a lease suspension as an unlisted activity. In determining whether to approve the review of a lease suspension as an unlisted activity, NOAA would examine the effect of the lease suspension in extending the term of the lease or postponing the coastal effects of the OCS activities to a point in time in the future or such other effects as are reasonably foreseeable from granting of the lease suspension(s). This effects test must be met by the State agency submitting a request to review the lease suspension(s) as an unlisted activity. NOAA cannot completely rule out the possibility that a lease suspension or set of lease suspensions could affect the uses or resources of a State's coastal zone, and thus the CZMA bars NOAA from categorically exempting suspensions from consistency. NOAA also believes that OCS lease suspensions could be removed from possible State agency review under subpart D, if MMS were to describe the expected universe of lease suspensions in detail in the OCS plans. In the alternative, specific suspensions can be addressed between lessees, MMS and coastal States as it was in the Memorandum of Understanding between MMS, Mobil and the State of North Carolina.

See

Appendix I, at I-3, Final Environmental Impact Report on Proposed Exploratory Drilling Offshore North Carolina, August 1990. If MMS were to do this, then a State agency concurrence in an OCS plan under subpart E, would also include concurrence of any lease suspensions granted for the expected reasons described in the OCS plans.

It is not correct to say that OCS activities are not subject to subpart D. It is correct that OCS plans, and federal licenses or permits described in detail in OCS plans, are subject to subpart E. However, subparts D and E are intertwined, as provided for in the statute (CZMA § 307(c)(3)(B)) which subjects subpart E reviews to CZMA § 307(c)(3)(A). Thus, OCS plans and licenses or permits described in detail in the plans are subject to subpart E, except for some information/procedural items. OCS related federal license or permits not described in detail in OCS plans are subject to subpart D and lease sales themselves are subject to subpart C.

NOAA agrees that the relationship of “leases” and “lease sales” could be clearer and has clarified that the term lease does not include leases issued pursuant to OCS lease sales. NOAA also agrees with the comment that leases that are federal license or permits as defined in this section are federal approvals regardless of whether there are other federal approvals required and has deleted the language referring to other approvals.

Rights of way and easements are not specifically included as the definition is sufficiently broad to cover these actions if they are “required federal approvals.” A State agency can always list specific approvals in its management program. Public participation is not added for a decision that consistency review will not occur. A decision that consistency will not occur, either because there are no coastal effects, there is no federal application, or there is no required federal approval, means that the CZMA consistency provision does not apply, and public review is not mandated.

Section 930.51(b)(2) is amended to clarify that “management program amendments” as used in this section means any program change,

i.e.

, amendment or routine program change, approved by OCRM under 15 CFR part 923, subpart H.

Section 930.51(c) clarifies that a major amendment is not a minor change to a previously reviewed activity, but a change that affects any coastal use or resource in a way that is substantially different than effects previously reviewed by the State agency. One State commented that the section as proposed did not apply the definition of major amendment to all contexts used in subsection (b). NOAA agrees that the definition of major amendment needs to apply to all three cases under subsection (b), and has made this change.

Section 930.51(d) clarifies that a “renewal” includes subsequent re-approvals, issuances or extensions. Administrative extensions that are required must be treated like any other renewal or major amendment. Otherwise, some activities that should obtain a renewal continue to operate for years under administrative extensions. These activities may have coastal effects that have not been reviewed by management programs and which need to be consistent with a State's enforceable policies. These activities are, in a sense new activities. Renewals cannot be used to negate the consistency requirement.

Section 930.51(e) describes some parameters for how the determination of major amendments, renewals and substantially different coastal effects in section 930.51 shall be made. Whether the effects from a renewal or major amendment are substantially different is a case-by-case factual determination that requires the input from all parties. However, a State agency's views should be accorded deference to ensure that the State agency has the opportunity to review coastal effects substantially different than previously reviewed.

Section 930.51(f) clarifies the ramifications to the consistency process when an applicant withdraws its application for a federal approval or if the approving Federal agency stays the application review process. If the applicant withdraws its application, then the consistency process stops (since there is n

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