# Coastal Zone Management Act Federal Consistency Regulations

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URL: https://www.frixlaw.com/law-library/documents/fr%3A00-8982

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** April 14, 2000
- **Citation:** 65 FR 20270

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 930
[Docket No. 990723202-9202-01]
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:

Proposed rule.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) is proposing to revise the federal consistency regulations under 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 18 years of implementation. The purpose of this proposed rule is to make these revisions and to codify the 1990 and 1996 statutory changes to section 307.

DATES:

Comments on the proposed rule are invited and will be considered if submitted on or before May 30, 2000.

ADDRESSES:

All comments concerning these proposed regulations should be mailed to: Joseph A. Uravitch, Chief, Coastal Programs Division, Office of Ocean and Coastal Resource Management (N/ORM3), 1305 East-West Highway, 11th Floor, Silver Spring, MD 20910.

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: 301-713-3098, extension 144.

SUPPLEMENTARY INFORMATION:

I. Authority

This proposed rule is issued under the authority of the CZMA, 16 USC 1451
et seq.

II. Background

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 coastal management programs in partnership with the Federal Government. The CZMA federal consistency requirement, 16 USC 1456, requires that Federal agency activities be consistent to the maximum extent practicable with the enforceable policies of a state's coastal management program. The federal consistency requirement also requires that indirect federal activities (i.e., non-federal activities requiring federal permits, licenses or financial assistance activities) be fully consistent with a state's federally approved coastal management program. The federal consistency requirement is an important mechanism to address coastal effects, to ensure adequate federal consideration of state coastal 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 proposed regulatory changes NOAA has been careful to adhere to statutory requirements and has given deference to the long-standing consistency provisions that are consistent 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 proposed 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. Hopefully, the spirit of objective, collaborative, open and amicable interaction with the coastal states, federal agencies and NOAA will continue.

III. Coastal Zone Act Reauthorization Amendments of 1990

This proposed rule codifies changes made to section 307 of the CZMA in 1990. The Coastal Zone Act Reauthorization Amendments of 1990 (CZARA) (Pub. L. 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.
at 970-71; 136 Cong. Rec. H 8076 (Sep. 26, 1990).

Other changes made to the CZMA by the CZARA include the addition of section 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 state coastal management programs. Finally, the CZARA made technical and conforming changes to the other existing federal consistency requirements of CZMA sections 307(c)(3) (A) and (B), and 307(d) for the purpose of conforming these existing sections with changes made to section 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. H8068 (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 H8076.

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. at 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 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 provides that the Secretary shall 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 shall 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 shall issue a decision no later than 45 days after the date of the publication of the notice. This proposed rule makes conforming changes in the Secretarial override regulations contained in subpart H of part 930.

VI. Purpose of This Proposed Rulemaking

The purpose of this proposed rule is to codify the 1990 and 1996 statutory changes to section 307 of the CZMA, and to update the federal consistency regulations after 18 years of implementation by NOAA, states and Federal agencies. This proposed rule is also the result of a two year informal effort by NOAA to work with Federal agencies, state coastal management programs and other interested parties to identify issues and obtain comments on draft proposed revisions to the regulations. Thus, this proposed rule has already undergone substantial review by Federal agencies, states and other interested parties.

VII. Section-by-Section Discussion of Proposed Changes

Throughout part 930 NOAA proposes to make 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 proposed changes, as well as proposed changes that will implement the CZARA and the CZPA. Because of the number of changes to the consistency regulations, the federal consistency regulations are being issued in this
Federal Register
notice in its entirety.

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 section 306.

The “State agency” is the designated federal consistency agency for a particular state management program.

The term “consistency determination” means the determination provided by a Federal agency to a State agency for a federal activity under CZMA section 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 activity under CZMA section 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 section (c)(3) or a state agency's or local government's certification under CZMA section 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 a state's management program.

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

Subpart A—General Information

Minor changes are proposed to clarify that the obligations imposed by the regulations are for states 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 approved coastal management programs and the importance of federal programs. Changes are proposed to encourage states and Federal agencies to coordinate as early as possible, and to allow states 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 state coastal management program enforceable policies are considered). Proposed minor editorial changes are not individually identified in the section-by-section analysis.

Sections 930.1(h) and (i) are proposed to be removed.
See
below under sections 930.132-134, and subpart I.

Section 930.2 would codify the requirement for public participation for all types of consistency reviews which was added by CZARA, 16 U.S.C. 1455(d)(14) (CZMA § 306(d)(14)).

Section 930.3 was formerly located at section 930.145.

Section 930.4 would clarify the use by State agencies of conditional concurrences. The Act's consistency requirements impose a definite time by which a Federal agency or an applicant for a federal approval or financial assistance (and the approving Federal agency) know if the State agency has concurred with a proposed activity, and whether the federal approval or funding may be issued. 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 leverage granted by the CZMA consistency requirement, the proposed rules would only allow 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.

Section 930.5 would be 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.

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

Section 930.6(b) would be revised to simplify 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”). As proposed, a state would either object to or concur with a consistency determination or a consistency certification.

Section 930.6(c) would be 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. The requirement that a single State agency ensure that all relevant enforceable policies are considered under state federal consistency reviews is derived from CZMA section 307 and various sections of NOAA's regulations. 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 coastal management program approval is a determination that state agencies responsible for implementing the coastal management program do so in conformance with the policies of the management program. 15 CFR 923.40(b).
See
also 15 CFR 923.41(b)(2). Networked state coastal management programs must also demonstrate that coastal management program authorities implement the full range of policies. 15 CFR 923.43(c). The federal consistency regulations mirror the requirement for the application of enforceable policies in a comprehensive manner.

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) would be amended to clarify that associated facilities are indispensable parts of the proposed federal action. A variant of the proposed addition was previously a comment to the 1979 regulations. 44 FR 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) would define “any coastal use or resource” and “effect on any coastal use or resource,” respectively. These proposed 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 definition for coastal uses and resources is derived primarily from CZMA Section 304 (coastal resources of national significance are defined in CZMA Section 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 or resources. 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 state's management program. Resource creation or restoration projects has been added as a coastal use. This will include 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
sections 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. Coastal effects are to be construed broadly and include reasonably foreseeable and cumulative and secondary effects.
See
Conference Report at 970-71. 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 as to 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 coastal 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.

Section 930.11(h) would be added to define enforceable policy by reference to CZMA § 304(6a), and to clarify 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 923.40(a); Conference Report at 972.

Subpart C—Consistency for Federal Agency Activities

Throughout the proposed 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 proposes to delete “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 proposes to amend 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.

Section 930.31(d) would be added to clarify that CZMA section 307(c)(1) is a residual category. Federal actions that do not fall into subparts D, E, or F are Federal agency activities. CZMA section 307(c)(1)(A);
see
44 FR 37146.

Section 930.31(e) would address 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 section 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 section 307(c)(1)(A) does provide that a Federal agency is subject to section 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 section 307(c)(3)(A).

NOAA proposes amending section 930.32 to clarify the consistent to the maximum extent practicable standard. NOAA proposes to divide section 930.32(a) into 3 subsections. Subsections (1) and (2) are the existing regulations and subsection (3) is new. Minor changes are proposed for § 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 state's enforceable policies. In subsection (a)(2), NOAA proposes to delete the term “supplemental” since the CZMA requires that a state's enforceable policies are requirements, not supplemental requirements. Also, supplemental is somewhat redundant with the rest of the sentence.

Section 930.32(a)(3) would clarify the effect of federal appropriations law on the consistent to the maximum extent practicable standard. A general lack of funding cannot be a reason to conduct a federal activity that is not consistent with state management program enforceable policies. In order for federal law to prohibit Federal agencies from being consistent there must be specific limitations in federal acts. Problems arise if Federal agencies were to use dollar amounts specified in appropriations acts as part of the consistent to the maximum extent practicable equation. These problems are: (1) The CZMA Presidential exemption includes the only express exemption due to lack of appropriations; (2) appropriations acts often provide little guidance as to how funds are to be used; and (3) state enforceable policies are substantive requirements to be adhered to. State coastal 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 state 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.

Section 930.32(b) would be revised to clarify that in unforeseen cases, such as an emergency, 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 for emergency actions 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 is determined by the emergency, not their discretionary authority.

Section 930.32(c) would address 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 section 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 state management program. Concerned state 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. Classified information should protect from disclosure national security information concerning the national defense or foreign policy, provided that 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 under a new administration 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 secrets and reclassify them pursuant to the latest executive order.

Section 930.33(a)(1) would clarify that effects on any coastal use or resource are not limited to environmental effects and that a review of relevant state coastal management program enforceable policies is necessary to determine whether the activity will affect any coastal use or resource.

Section 930.33(a)(2) would clarify 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.

Section 930.33(a)(3) would provide 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. As the court noted in
Envtl. Defense Fund
v.
Envtl. Protection Agency,
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 unilateral de minimis exception. 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. Also, many states are concerned with the cumulative effect of seemingly de minimis activities. NOAA believes, however, that the CZMA allows states and Federal agencies to mutually agree to address de minimis activities in a flexible manner. The proposed revisions do not provide detailed definitions of de minimis activities. Rather, NOAA proposes some general guidelines and then leaves it to the Federal agency and states to agree as to what is de minimis. NOAA is not requiring a State agency to provide for public participation for agreements between a State agency and a Federal agency regarding de minimis activities. An agreement between a State agency and a Federal agency to exclude de minimis activities is not a consistency determination. (If a State agency and Federal agency agree to address de minimis activities through a general determination public participation would be required.) Individual states may of course provide for public participation.

Section 930.33(a)(4) would allow State agencies and federal agencies to mutually agree to exclude environmentally beneficial activities from further State agency review.

Section 930.33(c)(2) would be 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 FR 37154 (comment to § 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) would further clarify 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 state coastal 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 would be removed and its contents moved to new section 930.34 and to section 930.36 on consistency determinations.

Section 930.34(a)(2) would encourage Federal agencies and State agencies to use existing procedures to coordinate consistency reviews. However, for permit requirements in state coastal 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 state coastal management programs using state permitting procedures as an administrative convenience to process Federal agency consistency determinations under sections 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 FR 37147.

Section 930.34(b) would be 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 state coastal management policies.

Sections 930.34(b)(2) and (c) would be deleted, with parts of these sections moved to new section 930.34(c). These sections are confusing and are not needed, since 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 as to whether the state has listed the activity.

Section 930.34(d) would encourage 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. Identifying a state's enforceable policies can be difficult. Also, providing the Federal agency with the applicable policies will help focus the Federal agency's efforts on the state's coastal management concerns.

Section 930.35 would apply to negative determinations and clarify existing requirements for negative determinations. Section 930.35(d)(3) is proposed to be deleted since the subsection is not used very often, the meaning is not clear, it is redundant with subsection (a)(1), and may discourage Federal agencies from taking a hard look at borderline cases.

Section 930.35(b) would clarify the information requirements for a negative determination. A negative determination, by definition, is a finding of no effects. Thus, the information provided for a negative determination may not be as substantial as that provided for a consistency determination.

Section 930.35(c) would clarify that if a state disagrees 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.

Section 930.36 would be moved to section 930.35(d). Section 930.36 would incorporate existing sections 930.37 and 930.34(b) and elaborate on consistency determinations for proposed activities.

Section 930.36(c) would be amended to clarify 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 for other non-repetitive or other repetitive activities. 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.

Section 930.36(e) would describe 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 state coastal management programs, and provide an efficient, cost effective and timely method for meeting the consistency requirement.

Section 930.37(c) would be moved to 930.36(d) and amended to clarify that phased consistency determinations refers to development projects and activities. Section 930.37 would clarify 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 C.F.R. part 930, subpart C. Section 930.37 would provide 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 states 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.

Section 930.39(a) would be amended to clarify that the Federal agency's evaluation of the management program

is included in the consistency determination. The last sentence in subsection (a) is derived from the last sentence of former § 930.34(a).

Section 930.39(b) is proposed to be 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 would be deleted since it is inconsistent with CZARA and the effects test and is covered under the proposed new definition of effects.

The last sentence of section 930.39(c) would be deleted since it is redundant with the rest of section 930.39(c).

Section 930.39(d) would be 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) would clarify the relationship between state permit requirements and the federal consistency requirements. Federal agencies must obtain state permits (including state coastal 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 U.S.C. 1323, 1341, 1344(t);
Friends of the Earth
v.
United States 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,”
United States Department of Energy
v.
Ohio
, 112 S. Ct. 1627 (1992), and to minimize conflicts in situations where the scope of the state permit requirement is an issue, the U.S. Department of Justice should be consulted. 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 state enforceable policies, including the standards that underlie a state's permit program.

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

Section 930.41(a) and (b) would be 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 postmarked 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. Postmarking the State agency's response by the end of the review period is reasonable, provides the State agency with the full 60 days to review the activity and still brings finality to the state's response.

The time period for a state'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 section 306(d)(14)(added in 1990 by CZARA). Federal agencies must provide consistency determinations to coastal states at least 90 days prior to federal action. 16 U.S.C. 1456(c)(1)(C). Currently, NOAA regulations require states to respond within 45 days of receiving the determination. 15 CFR 930.41(a). If a state needs more time, a Federal agency must allow one 15 day extension. 15 CFR 930.41(b). These regulatory requirements were promulgated prior to the addition of CZMA section 306(d)(14). OCRM's Final Guidance implementing CZMA section 306(d)(14) did not change these requirements. 59 FR 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's consistency review will be completed, NOAA proposes to provide states with a 60-day review period (extension provision remain the same). This should alleviate the inconsistency between current regulations and the CZMA section 306(d)(14) requirement. The total time allowed before a federal action may commence (90 days) would not change.

Section 930.41(c) would be 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 concurs or the Federal agency and the state agree to a shorter period.

Section 930.41(d) would be added to clarify that states cannot unilaterally place time limits on concurrences. States must decide if they can concur with a consistency determination absent an agreement on time limits. Otherwise a state has the option of objecting for lack of information, if appropriate, or relying on § 930.45(b) (previously § 930.45(b)). There are several reasons why time limits are not acceptable. The CZMA requires a Federal agency to provide a consistency determination 90 days before final Federal agency approval. CZMA section 307(c)(2). The CZMA does not allow states to re-review the same activity. State consistency decisions and objections also 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 what the proposed § 930.46 is for. 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.

Section 930.41(e) would clarify 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. The CZMA does not require

Federal agencies to pay processing fees. NOAA 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.

Section 930.42 would be moved to section 930.43. New section 930.42 would detail 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 section 306(d)(14).
See
NOAA's final guidance on this requirement, 59 FR 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 section 306(d)(14). NOAA proposes to review each state's procedures during regularly scheduled evaluations of state coastal management programs under CZMA section 312 for compliance with the public participation requirement under section 306(d)(14), and will recommend procedural changes if necessary to meet proposed § 930.42. The purpose of the requirement is to provide the public with an opportunity to comment to the coastal management program on the program's review of a federal activity for consistency with the enforceable policies of a coastal management program, in addition to commenting on the activity itself. Thus, a Federal agency cannot be required to publish or pay for the notice.

Section 930.42(a) would be re-designated as 930.43(a) and amended to clarify that state objections must be based on the enforceable policies of an approved state coastal 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.

Section 930.43(d) would clarify 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.

Section 930.46 would address the situation where a proposed activity previously reviewed, but not yet begun, will have coastal effects substantially different than originally described. 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, section 930.46 would require a supplemental consistency determination. This is an affirmative duty on the part of Federal agencies. States may seek compliance either through negotiation, mediation or litigation. This proposed section is similar to NEPA requirements for supplemental statements.
See
40 CFR § 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 conform the regulations to the changes made by CZARA.

A similar section is repeated at the end of subparts D and F. See proposed sections 930.66 and 930.101.

Subpart D—Consistency for Federal License or Permit Activities

Sections 930.50 and 930.51(a) would be 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.

Section 930.51(a) would clarify 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 lease sales issued under the Outer Continental Shelf Lands Act, which are Federal agency activities under 15 CFR part 930, subpart C.

Section 930.51(b)(2) would be 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) would clarify that a major amendment is not a minor change to a previously reviewed activity, but a change that affects any coastal use or resource substantially different than effects previously reviewed by the State agency.

Section 930.51(d) would clarify 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 state coastal 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) would describe some parameters for how the determination of major amendments, renewals and substantially different 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) would clarify the consistency ramifications 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 no longer a federal application to trigger consistency). If the applicant re-applies, then a new consistency review is required. Likewise, if the Federal agency stays its proceeding, then the consistency review process will be stayed for the same amount of time. This will avoid confusion as to what the consistency review period is in these cases.

Section 930.52 would be amended to add to the definition of “applicant” applicants for a United States required approval from other nations, and applicants filing a consistency certification under the proposed general permit consistency process under § 930.31(e). Regarding other nations, the CZMA requires any applicant for a

required federal license or permit to certify consistency with state management programs. There may be instances where a foreign company or individual must obtain a United States approval.

Section 930.53(a) would be removed. Most state programs have either been developed or are in the process of doing so. Thus, this section is no longer necessary. Also, federal involvement in the identification of federal activities is addressed in the program development regulations.
See
15 CFR § 923.53.

Section 930.53(b) would be moved to 930.53(a).

Sections 930.53(a)(1) and (2) would be added to clarify the review of listed federal license or permit activities occurring outside of the coastal zone. The geographic location requirement is a means of notifying applicants and Federal agencies of activities with reasonably foreseeable coastal effects and are, therefore, subject to consistency review. The most effective way for a state to review listed activities outside the coastal zone is to describe the geographic location of a state's review. States are strongly encouraged to modify their programs to include a description of the geographic location for listed activities occurring outside the coastal zone to be reviewed for consistency. This section also codifies existing administrative policy that treats listed activities outside the coastal zone (for which a state has not described a geographic location), and listed activities outside a geographically described location, as unlisted activities under this subpart. The state's coastal zone boundary is, in a sense, one geographic location description. Thus, Federal lands located within the boundaries of a state's coastal zone are sufficiently described for federal license or permit activities occurring on those federal lands.

Sections 930.53(c), (d) and (e) would be moved to 930.53(b), (c) and (d), respectively. The addition of proposed sections 930.53(c)(1) and (2) clarify the procedures for consultation with Federal agencies and approval by the Director.

Section 930.54(a)(1) would be amended to clarify where State agencies should look to monitor unlisted activities. Specifically, draft NEPA documents and
Federal Register
notices are key documents State agencies should review. This section also clarifies that State agency notice should be sent to the applicant, the Federal agency, and the Director of OCRM. The term “immediately” has been deleted as there is already specified a 30 day time period in which to respond.

Section 930.54(b) would be amended to clarify that the State agency's notification must also include a request for OCRM approval and the State agency's analysis supporting its claim that coastal effects are reasonably foreseeable.

Section 930.54(c) would be amended to clarify that the Director's decision deadline may be extended by the Director for complex issues or to address the needs of one or more of the parties. This would codify existing practice which has been useful in resolving issues often leading to the State agency's withdrawal of its request.

Section 930.54(f) would provide applicants and State agencies with the flexibility to agree to forego the unlisted activity procedure, have the applicant subject itself to consistency, and to expedite the consistency process. This would help to resolve any coastal management issues informally and to avoid delays due to disagreement over whether the application should be subject to State agency consistency review.

Section 930.56(b) would be moved to § 930.58(a)(2). This would consolidate all material on necessary data and information in one section. The proposed last sentence of § 930.56 as State agencies need to be able to identify their enforceable policies and have an obligation to identify the applicable policies to Federal agencies and applicants. Also, since many state coastal management programs now contain substantial numbers of enforceable policies, it is more efficient and effective if states can identify the applicable policies to the applicants, rather than the applicant having to pick and choose from all the state policies.

Section 930.58 would be modified to clarify information requirements and to consolidate language from other sections. Subsection 930.58(a)(1) (formerly § 930.56(b)) would clarify that the necessary data and information which applicants must provide to the State agency may include state permits or permit applications.

Sections 930.60(a)(1), (2) and (3) would clarify when the consistency time clock may begin; the consequences of an incomplete certification; and State agency notice requirements to the applicant and the Federal agency. Where the applicant has submitted an incomplete certification and the state begins the consistency time clock, the State agency cannot later stop the time clock unless the applicant agrees. Section 930.60(a)(2) would require State agencies to notify the applicant and the Federal agency of the date when necessary certification or information deficiencies have been corrected, and the State agency's review has begun. Subsection (a)(3) would allow states and applicants to mutually agree to alter the review time period.

Section 930.62 would be deleted and part of it moved to section 930.61(a). The following section numbers in this subpart would be renumbered.

Section 930.63(a) (to be redesignated as section 930.62(a)) would be amended to clarify that a State agency's objection must be postmarked by the end of the six month review period.

Section 930.62(d) would be moved from § 930.64(c).

Section 930.64(b) (to be redesignated as section 930.63(b)) would be amended to clarify that State agency objections must be based on enforceable policies. Sections 930.63(b) and (d) would be revised to clarify that alternatives identification is an option for the state and to provide requirements on alternative descriptions if a State agency chooses to identify alternatives. These changes recognize the fact that, even if an applicant proposes to adopt a State agency's alternative, the Federal agency cannot approve the project due to the State agency's objection. Thus, if an applicant wants the federal approval the applicant must consult with the State agency and the State agency must remove its objection, unless an applicant appeals to the Secretary and prevails.

Section 930.64(e) (to be redesignated as section 930.63(e)) would be amended to clarify the notification of availability of the Secretarial override process. Since a concurrence with conditions may also become an objection, a conditional concurrence must also include similar appeal language.

Section 930.66 (to be redesignated as § 930.65) would be amended to provide states with a more meaningful opportunity to address instances where the State agency claims that an activity once found consistent or not affecting any coastal use or resource, is not being conducted as originally proposed and which will cause effects on a coastal use or resource substantially different than originally proposed. Previously, states could only request that the Federal agency take remedial action. If a Federal agency does not take remedial action the State agency can request that the Director find that the effects of the activity have substantially changed and require the applicant to submit an amended or new consistency certification and supporting information, or comply with the originally approved certification. This change mirrors the existing remedial action section of subpart E (
see
§ 930.86)

and, like section 930.86, is not expected to be used frequently. However, the procedure exists, if necessary, to ensure that federal license or permit activities continue to be conducted consistent with a state's management program.

Section 930.66 would contain a supplemental coordination for proposed activities provision.
See
discussion of section 930.46.

Subpart E—Consistency for Outer Continental Shelf (OCS) Exploration, Development and Production Activities

Section 930.75(b) would be deleted as redundant with the proposed changes to § 930.76(b) and with § 930.58.

Section 930.77 would be deleted since this information is redundant with § 930.58, which is referenced in § 930.76(b). The rest of the sections in this subpart are renumbered accordingly (with additional minor changes, mostly conforming with changes made in subpart D).

Section 930.79(a) would be amended to clarify that if, after State agency concurrence, the activity, or effects from the activity, which the State agency reviewed, has substantially changed, then a new consistency certification shall be included in the person's application for the federal license or permit. This is consistent with the statutory requirement that all federal actions affecting any coastal use or resource are subject to the consistency requirement. If the activity or effects have changed, then the state did not have the opportunity to review the activity.

Sections 930.83(b)-(e) (currently § 930.84(b)-(e)) would be deleted since they are unnecessary and are replaced by the new reference in revised § 930.83.

Subpart F—Consistency for Federal Assistance to State and Local Governments

Section 930.94 would be amended to clarify that all federal assistance activities that affect any coastal use or resource are subject to the consistency requirement. While the intergovernmental review process is the preferred method for notifying the State agency and for State agency review, the intergovernmental review process may not provide notification for all federal assistance activities subject to the consistency requirement. Proposed §§ 930.94(b) and 930.95 provide methods to ensure adequate notification and review, by specifying a listed and unlisted procedure.

Section 930.94(c) would be added to conform to the statutory requirement that the applicant agency provide an evaluation of consistency.
See
CZMA section 307(d).

Sections 930.96(c)-(e) would be deleted since the reference to § 930.63 in § 930.63(b) eliminates the need for these subsections.

The unlisted activity procedure in section 930.98 follows the unlisted activity procedures found at § 930.54, except that Director approval is not required, because the State agency, through its monitoring and review of federal assistance activities, determines if coastal effects are reasonably foreseeable.

Section 930.100 would be amended to provide states with more meaningful opportunity to address remedial action for previously reviewed activities. See discussion of § 930.65.

Section 930.101 would contain a supplemental coordination for proposed activities provision.
See
discussion of section 930.46.

Subpart G—Secretarial Mediation

Only minor changes were made to subpart G. Subpart G provides a process for Federal agencies and coastal states to request that the Secretary of Commerce mediate serious disputes regarding the federal consistency requirements. Subpart G also provides for informal negotiation by OCRM. Both Secretarial mediation and informal negotiations require the participation of both agencies and are non-binding.

Subpart H—Secretarial Review Related to the Objectives or Purposes of the Act and National Security Interests

Pursuant to section 307 of the Act, no federal agency may issue a license or permit for an activity until an affected coastal state has concurred that the activity will be conducted in a manner consistent with the state's management program unless the Secretary, on his own initiative or on appeal by the applicant, finds that the activity is consistent with the objectives of the Act or is other wise necessary in the interest of national security. Subpart H sets forth the procedures applicable to such appeals and the requirements for such findings by the Secretary.

The Secretary's review is an independent assessment of the activity (the Secretary's review of the State agency's decision is limited to ensuring that the state's objection to an applicant's consistency certification was based on enforceable policies that are incorporated into the state's management program and that other consistency process requirements were met). If the Secretary overrides a State agency's objection, then the Federal agency may permit or fund the activity.

Changes were made to § 930.121(a) and (b) to ensure that the Secretary overrides a state's objection only where there is a national interest in the activity and that interest outweighs the adverse coastal effects of the activity. These changes will allow the Secretary to address issues of national concern and not minor local land use decisions that have only a de minimis connection to coastal uses and the national interest defined in the CZMA's objectives.

In addition, changes were made to § 930.121(d) to clarify the determination by the Secretary of the availability of alternatives. Currently, under the other elements of § 930.121, the Secretary may consider many factors when determining whether an appellant has met a particular element. Regarding the element on alternatives, there is confusion as to when alternatives may be raised, the consequences of a State agency not providing alternatives or when it issues its objection, and the level of specificity that the State agency needs to provide to satisfy the element on appeal. The changes to § 930.121(d) reflect the independent basis of the Secretary's decision by not restricting the scope of the Secretary's review. These changes will ensure that the Secretary's findings regarding alternatives will not be restricted, but will be informed and based on the Secretary's independent administrative record for each case. In this way, both the state and appellant will be able to provide to the Secretary information on whether an alternative is reasonable and described with sufficient specificity that might not have been available when the state issued its objection.

Section 930.125 is revised to make it consistent with the 1990 amendments to the CZMA. The changes include the requirement that an appellant pay a filing fee to the Secretary.

Section 930.126 would codify and explain the statutory requirement for the Secretary to collect fees from appellants to recover the costs of administering and processing appeals. These fees are in addition to the filing fees.
See
16 USC 1456(i).

Section 930.127 would clarify when an appellant must submit supporting data and information. This requirement is necessary so that the Secretary can meet new time limits placed on the Secretary by the 1996 amendments to the CZMA.

Section 930.132 would be amended to clarify the procedures applicable to reviews initiated by the secretary on his/her own initiative. Section 930.132(b) is superseded by section 8 of the Coastal Zone Protection Act of 1996, Public Law 104-150. Section 8 created

a new section 319 of the CZMA concerning the timing of appeals.

Sections 930.133 and 134 would be replaced with a cross reference in § 930.134(b) to the provisions in subpart H for processing and administering appeals.

Subpart I—Assistant Administrator Reporting and Review

Existing subpart I would be removed. This subpart has never been used, and there are other existing CZMA mechanisms for reporting and review: oversight and monitoring under CZMA section 306, evaluations under CZMA section 312, appeals under CZMA section 307, and unlisted activity review approvals.

In addition, section 930.145 would be revised and moved to section 930.3.

Proposed Subpart I—Consistency of Federal Activities Having Interstate Coastal Effects

The CZARA clarified that the federal consistency trigger is coastal effects, regardless as to the geographic location of the federal activity.
See
16 U.S.C. 1456; H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess., 970-972. Thus, federal consistency applies to all relevant federal actions, even when they occur outside the state's coastal zone and in another state. For example, State A may review a federal permit application for an activity occurring wholly within State B if State A has a federally approved coastal management program and the activity will have coastal effects. An example of this type of activity is the placement of a sewage outfall pipe in State B's waters that results in impacts to shellfish harvesting waters in State A.

In 1994, the Secretary of Commerce found, in the Lake Gaston decision, that federal consistency applied to a federal activity occurring in one state and having coastal effects in another state (hereinafter referred to as “interstate consistency”). This decision was based on a 1989 NOAA General Counsel opinion, the plain language of the CZMA and the Conference Report.
See also
136 Cong. Rec. H8077 (Sep. 26, 1990).

Interstate consistency does not expand a coastal state's jurisdiction or affect the sovereignty of other states. Federal consistency applies only to federal actions, not state actions. If State A determines that an activity in State B would affect its coastal resources, but no federal permit or other federal action is required to undertake the activity, State A does not have any authority under the CZMA to review that activity. The CZMA also, even when there is a federal connection, does not give coastal states the authority to review the application of the laws, regulations, or policies of any other state. The CZMA only allows a state coastal management program to review the federal approval of an activity. NOAA proposes to add a new subpart I to provide clearer guidance as to how interstate consistency should be applied.

NOAA believes that regulations are needed so that the application of interstate consistency is carried out in a predictable, reasonable, and efficient manner. NOAA is specifically addressing interstate consistency to encourage neighboring states to cooperate in dealing with common resource management issues, and to provide states, permitting agencies, and the public with a more predictable application of the consistency requirement to these activities. Interstate resource management issues are best resolved on a cooperative, proactive basis.

VIII. Miscellaneous Rulemaking Requirements

Executive Order 12372: Intergovernmental Review

This program is subject to Executive Order 12372.

Executive Order 13132: Federalism Assessment

NOAA has concluded that this regulatory action is consistent with federalism principles, criteria, and requirements stated in Executive Order 13132. The proposed changes in the federal consistency regulations are intended to facilitate Federal agency coordination with coastal states, and ensure that federal actions affecting any coastal use or resource are consistent with the enforceable policies of approved state coastal management programs. The Coastal Zone Management Act (CZMA) and these revised implementing regulations promote the principles of federalism articulated in Executive Order 13132 by granting the states a qualified right to review certain federal activities that affect the land and water uses or natural resources of state coastal zones. Section 307 of the CZMA and these implementing regulations effectively transfer power from federal agencies to state agencies whenever federal agencies propose activities or applicants for required federal license or permit propose to undertake activities affecting state coastal resources. Through the CZMA, federal agencies are required to carry out their activities in a manner that is consistent to the maximum extent practicable with federally approved state programs and licensees and permitees to be fully consistent with the state programs. The CZMA and these implementing regulations, rather than preempting a State provide a mechanism for it to object to federal activities that are not consistent with the State's management program. A state objection prevents the issuance of the federal permit or license, unless the Secretary of Commerce overrides the objection. Because the CZMA and these regulations promote the principles of federalism and enhance state authorities, no federalism assessment need be prepared.

Executive Order 12866: Regulatory Planning and Review

This regulatory action is not significant for purposes of Executive Order 12866.

Regulatory Flexibility Act

The Assistant General Counsel for Legislation and Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, would not have a significant impact on a substantial number of small entities. This proposed rule will only make minor changes to existing law, under both the CZMA and the existing regulations. The existing regulations do not have a significant impact on a substantial number of small entities and, thus, codifying in the regulations the requirements of the CZMA, as amended in 1990, and other minor changes, will not result in any additional economic impact on affected entities. The proposed rule: (1) Addresses coastal management programs of coastal states and territories, (2) removes outdated or unnecessary provisions for federal consistency purposes, (3) revises the remaining provisions to improve federal-state coordination of actions affecting the coastal zone, and (4) do not impose any significant new requirements on states, federal agencies, businesses, or the public. The basic substantive requirements in the existing regulations and the proposed rule would remain in effect whether or not the proposed rule is adopted. Accordingly, an initial Regulatory Flexibility Analysis was not prepared.

The term “small entity” includes small businesses, small organizations, and small governmental jurisdictions. The federal consistency regulations, and the proposed rule, primarily affect states and federal agencies. Federal consistency also applies to private land owners proposing certain activities

affecting the coastal zone that require federal approvals. State and federal agencies and private landowners are not small entities under the Regulatory Flexibility Act (RFA). Federal consistency does apply to some small businesses, small organizations and small governmental jurisdictions proposing activities that affect the coastal zone. (NOAA's National Marine Fisheries Service defines a small jurisdiction under the RFA as any government of a district with a population of less than 50,000.) However, these numbers are insignificant when compared to the number of small businesses and governmental jurisdictions in coastal states. The Federal consistency appeal process affects very few entities of any kind. Since the CZMA was enacted in 1972, only 39 consistency appeals have been filed with the Secretary of Commerce. Of those 39 consistency appeals, only 5 appeals have involved small entities. In 27 years of implementation, only five small entities have been affected by these regulations governing consistency appeals to the Secretary of Commerce.

In addition, the number of small entities affected by the consistency provisions of the CZMA generally, are insignificant when compared to the total number of small businesses and governmental jurisdictions in the 33 coastal states with approved coastal management programs. For example, in the State of North Carolina, for the period January 1, 1998, to December 31, 1998, the state reviewed 26 applications for federal licenses or permits under 15 CFR part 930, subpart D (the existing regulations), for activities that did not require a state permit. Of these 26 applications, no small entities were subject to the state's CZMA federal consistency review authority and the existing regulations. During the same period the state also reviewed 90 applications by state agencies and local governments for federal financial assistance. Of these 90 applications, 28 small entities were subject to the state's CZMA federal consistency review authority and the existing regulations. The State did not object to any of these financial assistance applications. Moreover, all of these financial assistance activities involved allowing federal funds to improve local infrastructure. North Carolina is a representative state in the use and application of the federal consistency requirement and the existing regulations. This is evidenced by the fact that all State coastal management programs concur with 95-97 percent of all federal license or permit activities, and over 99 percent of all applicable small organization and governmental jurisdiction federal assistance activities.

Thus, the existing regulations do not, and the proposed rule will not, have a significant impact on a substantial number of small entities.

Paperwork Reduction Act

This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Many of these are existing requirements and are being submitted to OMB for approval. This Notice also refers to federally approved coastal management plans which have previously been approved by OMB under 0648-0119. Public reporting burden for the collection of information related to this proposed rule is estimated to average as follows: (A) State objection and concurrence to consistency certifications or determinations approximately 18,800 hours; (B) State requests to review unlisted activities approximately 12 hours; (C) public notice requirements approximately 1300 hours; (D) remedial action and supplemental review approximately 12 hours; (E) listing notices approximately 1 hour; (F) mediation requests approximately 6 hours; and (G) appeals to the Secretary of Commerce approximately 200 hours.

Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of the information, including through the use of automated collection techniques or other forms of information technology. Send comments on any of these or any other aspects of the collection of information to David Kaiser, Federal Consistency Coordinator at the
ADDRESSES
above, and to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, D.C. 20503 (Attention: NOAA Desk Officer).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

National Environmental Policy Act

NOAA has concluded that this regulatory action does not constitute a major federal action significantly affecting the quality of the human environment. Therefore, an environmental impact statement is not required.

List of Subjects in 15 CFR Part 930

Administrative practice and procedure, Coastal zone, Reporting and recordkeeping requirements.

Dated: April 6, 2000.
Ted Lillestolen,
Deputy Assistant Administrator for Ocean Services and Coastal Zone Management.

For the reasons set out in the preamble, NOAA proposes to revise 15 CFR part 930 to read as follows:

PART 930—FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT PROGRAMS

Subpart A—General Information

Sec.
930.1
Overall objectives.
930.2
Public participation.
930.3
Review of the implementation of the federal consistency requirement.
930.4
Conditional concurrences.
930.5
State enforcement actions.
930.6
State agency responsbility.

Subpart B—General Definitions

930.10
Index to definitions for terms defined in part 930.
930.11
Definitions.

Subpart C—Consistency for Federal Agency Activities 930.30 Objectives.

930.31
Federal agency activity.
930.32
Consistent to the maximum extent practicable.
930.33
Identifying Federal agency activities affecting any coastal use or resource.
930.34
Federal and State agency coordination.
930.35
Negative determinations for proposed activities.
930.36
Consistency determinations for proposed activities.
930.37
Consistency determinations and National Environmental Policy Act (NEPA) requirements.
930.38
Consistency determinations for activities initiated prior to management program approval.
930.39
Content of a consistency determination.
930.40
Multiple Federal agency participation.
930.41
State agency response.
930.42
Public participation.
930.43
State agency objection.
930.44
Availability of mediation for disputes concerning proposed activities.
930.45
Availability of mediation for previously reviewed activities.
930.46
Supplemental coordination for proposed activities.

Subpart D—Consistency for Activities Requiring a Federal License or Permit

930.50
Objectives.
930.51
Federal license or permit.
930.52
Applicant.
930.53
Listed federal license or permit activities.
930.54
Unlisted federal license or permit activities.
930.55
Availability of mediation for license or permit disputes.
930.56
State agency guidance and assistance to applicants.
930.57
Consistency certifications.
930.58
Necessary data and information.
930.59
Multiple permit review.
930.60
Commencement of state agency review.
930.61
Public participation.
930.62
State agency concurrence with a consistency certification.
930.63
State agency objection to a consistency certification.
930.64
Federal permitting agency responsibility.
930.65
Remedial action for previously reviewed activities.
930.66
Supplemental coordination for proposed activities.

Subpart E—Consistency for Outer Continental Shelf (OCS) Exploration, Development and Production Activities

930.70
Objectives.
930.71
Federal license or permit activity described in detail.
930.72
Person.
930.73
OCS plan.
930.74
OCS activities subject to state agency review.
930.75
State agency assistance to persons.
930.76
Submission of an OCS plan, necessary data and information and consistency certification.
930.77

Commencement of State agency review
and
public notice.

930.78
State agency concurrence or objection.
930.79
Effect of State agency concurrence.
930.80
Federal permitting agency responsibility.
930.81
Multiple permit review.
930.82
Amended OCS plans.
930.83
Review of amended or new OCS plans; public notice.
930.84
Continuing State agency objections.
930.85
Failure to comply substantially with an approved OCS plan.

Subpart F—Consistency for Federal Assistance to State and Local Governments

930.90
Objectives.
930.91
Federal assistance.
930.92
Applicant agency.
930.93
Intergovernmental review process.
930.94
State review process for consistency.
930.95
Guidance provided by the state agency.
930.96
Consistency review.
930.97
Federal assisting agency responsibility.
930.98
Federally assisted activities outside of the coastal zone or the described geographic area.
930.99
Availability of mediation for federal assistance disputes.
930.100
Remedial action for previously reviewed activities.
930.101
Supplemental coordination for proposed activities.

Subpart G—Secretarial Mediation

930.110
Objectives.
930.111
Informal negotiations.
930.112
Request for mediation.
930.113
Public hearings.
930.114
Secretarial mediation efforts.
930.115
Termination of mediation.
930.116
Judicial review.

Subpart H—Secretarial Review Related to the Objectives or Purposes of the Act and National Security Interests

930.120
Objectives.
930.121
Consistent with the objectives or purposes of the Act.
930.122
Necessary in the interest of national security.
930.123
Appellant and the Federal agency.
930.124
Computation of time.
930.125
Notice of appeal to the Secretary.
930.126
Consistency appeal processing fees.
930.127
Briefs and supporting data and information.
930.128
Public notice and comment period.
930.129
Dismissal, remand and stay of appeals.
930.130
Public hearings.
930.131
Closure of the decision record and issuance of decision.
930.132
Review initiated by the Secretary.

Subpart I—Consistency of Federal Activities Having Interstate Coastal Effects

930.150
Objectives.
930.151
Interstate coastal effect.
930.152
Application.
930.153
Coordination between states in developing coastal management policies.
930.154
Listing activities subject to interstate consistency review.
930.155
Federal and State agency coordination.
930.156
Content of a consistency determination or certification and State agency response.
930.157
Mediation and informal negotiations.

Authority:

16 U.S.C. 141
et seq.

Subpart A—General Information

§ 930.1
Overall objectives.
The objectives of this part are:

(a) To describe the obligations of all parties who are required to comply with the federal consistency requirement of the Coastal Zone Management Act;

(b) To implement the federal consistency requirement in a manner which strikes a balance between the need to ensure consistency for federal actions affecting any coastal use or resource with the enforceable policies of approved management programs and the importance of federal activities;

(c) To provide flexible procedures which foster intergovernmental cooperation and minimize duplicative effort and unnecessary delay, while making certain that the objectives of the federal consistency requirement of the Act are satisfied. Federal agencies, State agencies, and applicants should coordinate as early as possible in developing a proposed federal action, and may mutually agree to intergovernmental coordination efforts to meet the requirements of these regulations (provided that public participation requirements are met and applicable state management program enforceable policies are considered).

(d) To interpret significant terms in the Act and this part;

(e) To provide procedures to make certain that all Federal agency and State agency consistency decisions are directly related to the enforceable policies of approved coastal management programs;

(f) To provide procedures which the Secretary, in cooperation with the Executive Office of the President, may use to mediate serious disagreements which arise between Federal and State agencies during the administration of approved coastal management programs; and

(g) To provide procedures which permit the Secretary to review federal license or permit activities, or federal assistance activities, to determine whether they are consistent with the objectives or purposes of the Act, or are necessary in the interest of national security.

§ 930.2
Public participation.
State management programs shall provide an opportunity for public participation in the State agency's review of a Federal agency's consistency determination or an applicant's or person's consistency certification.

§ 930.3
Review of the implementation of the federal consistency requirement.
As part of the responsibility to conduct a continuing review of approved management programs, the Director of the Office of Ocean and Coastal Resource Management (Director) shall review the performance of each state's implementation of the federal consistency requirement. The Director shall evaluate instances where a State agency is believed to have either failed to object to inconsistent federal actions, or improperly objected to consistent federal actions. This evaluation shall be incorporated within the Director's general efforts to ascertain instances where a state has not adhered to its approved management program and such lack of adherence is not justified.

§ 930.4
Conditional concurrences.

(a) Federal agencies, applicants, persons and applicant agencies should

cooperate with State agencies to develop conditions that, if agreed to during the State agency's consistency review period and included in a Federal agency's final decision under subpart C or in a Federal agency's approval under subparts D, E, F or I of this part, would allow the State agency to concur with the federal action. If a State agency issues a conditional concurrence:

(1) The State agency shall include in its concurrence letter the conditions which must be satisfied, an explanation of why the conditions are necessary to ensure consistency with specific enforceable policies of the management program, and an identification of the specific enforceable policies. The State agency's concurrence letter shall also inform the parties that if the requirements of paragraphs (a)(1) through (3) of this section are not met, then all parties shall treat the State agency's conditional concurrence letter as an objection pursuant to the applicable subpart and notify, pursuant to § 930.63(e), applicants, persons and applicant agencies of the opportunity to appeal the State agency's objection to the Secretary of Commerce within 30 days after receipt of the State agency's conditional concurrence/objection or 30 days after receiving notice from the Federal agency that the application will not be approved as amended by the State agency's conditions;

(2) The Federal agency (for subpart C), applicant (for subparts D and I), person (for subpart E) or applicant agency (for subpart F) shall modify the applicable plan, project proposal, or application to the Federal agency pursuant to the State agency's conditions. The Federal agency, applicant, person or applicant agency shall immediately notify the State agency if the State agency's conditions are not acceptable; and

(3) The Federal agency (for subparts D, E, F and I) shall approve the amended application (with the State agency's conditions). The Federal agency shall immediately notify the State agency and applicant or applicant agency if the Federal agency will not approve the application as amended by the State agency's conditions. Federal agencies shall enforce, to the extent allowed by law, the state conditions contained in the federal permit or license as approved with the state's conditions.

(b) If the requirements of paragraphs (a)(1) through (3) of this section are not met, then all parties shall treat the State agency's conditional concurrence as an objection pursuant to the applicable subpart.

§ 930.5
State enforcement action.
The regulations in this part are not intended in any way to alter or limit other legal remedies, including judicial review or state enforcement, otherwise available. State agencies and Federal agencies should first use the various remedial action and mediation sections of this part to resolve their differences or to enforce State agency concurrences or objections.

§ 930.6
State agency responsibility.
(a) This section describes the responsibilities of the “State agency” described in § 930.11(o). A designated State agency is required to uniformly and comprehensively apply the enforceable policies of the state's management program, efficiently coordinate all state coastal management requirements, and to provide a single point of contact for Federal agencies and the public to discuss consistency issues. Any appointment by the State agency of the state's consistency responsibilities to a designee agency must be described in the state's management program. In the absence of such description, all consistency determinations, consistency certifications and federal assistance proposals shall be sent to and reviewed by the State agency. A state may have two State agencies designated pursuant to section 306(d)(6) of the Act where the state has two geographically separate federally-approved coastal management programs.

(b) The State agency is responsible for commenting on and concurring with or objecting to Federal agency consistency determinations and negative determinations (
see
subpart C of this part), consistency certifications for federal licenses, permits, and Outer Continental Shelf plans (
see
subparts D, E and
I
of this part), and reviewing the consistency of federal assistance activities proposed by applicant agencies (
see
subpart F of this part). The State agency shall be responsible for securing necessary review and comment from other state, regional, or local government agencies. Thereafter, only the State agency is authorized to comment officially on or concur with or object to a federal consistency determination or negative determination, a consistency certification, or determine the consistency of a proposed federal assistance activity.

(c) If described in a state's management program, the issuance or denial of relevant state permits can constitute the State agency's consistency concurrence or objection if the State agency ensures that the state permitting agencies or the State agency review individual projects to ensure consistency with all applicable state management program policies. The State agency shall monitor such permits issued by another state agency.

Subpart B—General Definitions

§ 930.10
Index to definitions for terms defined in part 930.

Term
Section

Act
930.11(a)

Any coastal use or resource
930.11(b)

Appellant
930.123

Applicant
930.52

Applicant agency
930.92

Assistant Administrator
930.11(c)

Associated facilities
930.11(d)

Coastal zone
930.11(e)

Consistent to the maximum extent practicable
930.32

Consistent with the objectives or purposes of the Act
930.121

Development project
930.31(b)

Director
930.11(f)

Effect on any coastal use or resource
930.11(g)

Enforceable policy
930.11(h)

Executive Office of the President
930.11(i)

Failure substantially to comply with an OCS plan
930.86(d)

Federal agency
930.11(j)

Federal agency activity
930.31

Federal assistance
930.91

Federal license or permit
930.51

Federal license or permit activity described in detail
930.71

Interstate coastal effect .
930.151

Major amendment
930.51(c)

Management program
930.11(k)

Necessary in the interest of national security
930.122

OCS plan
930.73

OCRM
930.11(l)

Person
930.72

Secretary
930.11(m)

Section
930.11(n)

State agency
930.11(o)

§ 930.11
Definitions.

(a)
Act.
The term “Act” means the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451-1464).

(b)
Any coastal use or resource.
The phrase “any coastal use or resource” means any land or water use or natural resource of the coastal zone. Land and water uses, or coastal uses, are defined in sections 304(10) and (18) of the Act, respectively, and include, but are not limited to, public access, recreation, fishing, historic or cultural preservation, development, hazards management, marinas and floodplain management, scenic and aesthetic enjoyment, and resource creation or restoration projects. Natural resources include biological or physical resources that are found within a state's coastal zone on a regular or cyclical basis. Biological and physical resources include, but are not limited to,

air, tidal and nontidal wetlands, ocean waters, estuaries, rivers, streams, lakes, aquifers, submerged aquatic vegetation, land, plants, trees, minerals, fish, shellfish, invertebrates, amphibians, birds, mammals, reptiles, and coastal resources of national significance. Coastal uses and resources also includes uses and resources appropriately described in a state's management program.

(c)
Assistant Administrator.
The term “Assistant Administrator” means the Assistant Administrator for Ocean Services and Coastal Zone Management, NOAA.

(d)
Associated facilities.
The term “associated facilities” means all proposed facilities which are specifically designed, located, constructed, operated, adapted, or otherwise used, in full or in major part, to meet the needs of a federal action (e.g., activity, development project, license, permit, or assistance), and without which the federal action, as proposed, could not be conducted. The proponent of a federal action shall consider whether the federal action and its associated facilities affect any coastal use or resource and, if so, whether these interrelated activities satisfy the requirements of the applicable subpart (subparts C, D, E, F or I of this part).

(e)
Coastal Zone.
The term “coastal zone” has the same definition as provided in section 304(1) of the Act.

(f)
Director.
The term “Director” means the Director of the Office of Ocean and Coastal Resource Management (OCRM), National Ocean Service, NOAA.

(g)
Effect on any coastal use or resource (coastal effect).
The term “effect on any coastal use or resource” means any reasonably foreseeable effect on any coastal use or resource resulting from a federal action. (The term “federal action” includes all types of activities subject to the federal consistency requirement under subparts C, D, E, F and I of this part.) Effects are not just environmental effects, but include effects on coastal uses. Effects include both direct effects which result from the activity and occur at the same time and place as the activity, 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. Indirect effects are effects resulting from the incremental impact of the federal action when added to other past, present, and reasonably foreseeable actions, regardless of what person(s) undertake(s) such actions.

(h)
Enforceable policy.
“The term ‘enforceable policy’ means State policies which are legally binding through constitutional provisions, laws, regulations, land use plans, ordinances, or judicial or administrative decisions, by which a State exerts control over private and public land and water uses and natural resources in the coastal zone,” 16 U.S.C. 1453(6a), and which are incorporated in a state's management program as approved by OCRM either as part of program approval or as a program change under 15 CFR part 923, subpart H. An enforceable policy shall contain standards of sufficient specificity to guide public and private uses. Enforceable policies need not establish detailed criteria such that a proponent of an activity could determine the consistency of an activity without interaction with the State agency. State agencies may identify management measures which are based on enforceable policies, and, if implemented, would allow the activity to be conducted consistent with the enforceable policies of the program. A State agency, however, must base its objection on enforceable policies.

(i)
Executive Office of the President.
The term “Executive Office of the President” means the office, council, board, or other entity within the Executive Office of the President which shall participate with the Secretary in seeking to mediate serious disagreements which may arise between a Federal agency and a coastal state.

(j)
Federal agency.
The term “Federal agency” means any department, agency, board, commission, council, independent office or similar entity within the executive branch of the federal government, or any wholly owned federal government corporation.

(k)
Management program.
The term “management program” has the same definition as provided in section 304(12) of the Act, except that for the purposes of this part the term is limited to those management programs adopted by a coastal state in accordance with the provisions of section 306 of the Act, and approved by the Assistant Administrator.

(l)
OCRM.
The term “OCRM” means the Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration (“NOAA”), U.S. Department of Commerce.

(m)
Secretary.
The term “Secretary” means the Secretary of Commerce and/or designee.

(n)
Section.
The term “Section” means a section of the Coastal Zone Management Act of 1972, as amended.

(o) State agency. The term “State agency” means the agency of the state government designated pursuant to section 306(d)(6) of the Act to receive and administer grants for an approved management program, or a single designee State agency appointed by the 306(d)(6) State agency.

Subpart C—Consistency for Federal Agency Activities

§ 930.30
Objectives.
The provisions of this subpart are intended to assure that all Federal agency activities including development projects affecting any coastal use or resource will be undertaken in a manner consistent to the maximum extent practicable with the enforceable policies of approved state management programs. The provisions of subpart I of this part are intended to supplement the provisions of this subpart for Federal agency activities having interstate coastal effects.

§ 930.31
Federal agency activity.

(a) The term “Federal agency activity” means any functions performed by or on behalf of a Federal agency in the exercise of its statutory responsibilities. This encompasses a wide range of Federal agency activities which initiate an event or series of events where coastal effects are reasonably foreseeable,
e.g.,
rulemaking, planning, physical alteration, exclusion of uses. The term “Federal agency activity” does not include the issuance of a federal license or permit to an applicant or person (see subparts D and E of this part) or the granting of federal assistance to an applicant agency (see subpart F of this part).

(b) The term federal “development project” means a Federal agency activity involving the planning, construction, modification, or removal of public works, facilities, or other structures, and the acquisition, use, or disposal of any coastal use or resource.

(c) The Federal agency activity category is a residual category for federal actions that are not covered under subparts D, E, or F of this part.

(d) A general permit program proposed by a Federal agency is subject to this subpart, unless a Federal agency chooses to subject its general permit program to consistency review under subpart D of this part. When proposing a general permit program, a Federal agency shall provide a consistency determination to the relevant state management programs and request that the State agency(ies) provide the Federal agency with conditions that would permit the State agency to concur with

the Federal agency's consistency determination. State concurrence should remove the need for the State agency to review future case-by-case uses of the general permit. Federal agencies shall, to the maximum extent practicable, incorporate the state conditions into the general permit. If the state conditions are not incorporated into the general permit or a State agency objects to the general permit, then the Federal agency shall notify potential users of the general permit that the general permit is not authorized for that state. Accordingly, the applicants in those states shall provide the State agency with a consistency certification under subpart D of this part.

§ 930.32
Consistent to the maximum extent practicable.
(a)(1) The term “consistent to the maximum extent practicable” means fully consistent with the enforceable policies of management programs unless full consistency is prohibited by existing law applicable to the Federal agency.

(2) Section 307(e) of the Act does not relieve Federal agencies of the consistency requirements under the Act. The Act was intended to cause substantive changes in Federal agency decisionmaking within the context of the discretionary powers residing within such agencies. Accordingly, whenever legally permissible, Federal agencies shall consider the enforceable policies of state management programs as requirements to be adhered to in addition to existing Federal agency statutory mandates. If a Federal agency asserts that full consistency with the management program is prohibited, it shall clearly describe, in writing, to the State agency the statutory provisions, legislative history, or other legal authority which limits the Federal agency's discretion to be consistent with the enforceable policies of the management program.

(3) For the purpose of determining consistent to the maximum extent practicable under paragraphs (a) (1) and (2) of this section, federal legal authority includes Federal appropriation Acts if the appropriation Act includes language that specifically prohibits full consistency with specific enforceable policies of state management programs. Federal agencies shall not use a general claim of a lack of funding or insufficient appropriated funds or failure to include the cost of being fully consistent in Federal budget and planning processes as a basis for being consistent to the maximum extent practicable with an enforceable policy of a state's management program. The only circumstance where a Federal agency may rely on a lack of funding as a limitation on being fully consistent with an enforceable policy is the Presidential exemption described in section 307(c)(1)(B) of the Act (16 USC 1456(c)(1)(B)). In cases where the cost of being consistent with the enforceable policies of a state's management program was not included in the Federal agency's budget and planning processes, the Federal agency should determine the amount of funds needed and seek additional discretionary federal funds. Federal agencies should include the cost of being fully consistent with the enforceable policies of state management programs in their budget and planning processes, to the same extent that a Federal agency would plan for the cost of complying with other federal requirements.

(b) A Federal agency may deviate from full consistency with an approved management program when such deviation is justified because of some unforeseen circumstances,
e.g.,
an emergency, arising after the approval of the management program which present the Federal agency with a substantial obstacle that prevents complete adherence to the approved program. Such deviation shall be the minimum necessary to address the exigent circumstances. Federal agencies shall carry out their activities consistent to the maximum extent practicable with the enforceable policies of a state's management program, to the extent that the exigent circumstances allow. Federal agencies shall consult with State agencies to the extent that an unforeseen circumstance allows and shall attempt to seek State agency concurrence within the time allowed. This invariably involves a case-by-case evaluation conducted by the Federal agency. Once the exigent circumstances have passed Federal agencies shall ensure that their activities are consistent to the maximum extent practicable with the enforceable policies of state management programs.

(c) A classified activity that affects any coastal use or resource is not exempt from the requirements of this subpart, unless the activity is exempted by the President under section 307(c)(1)(B) of the Act. Under the consistent to the maximum extent practicable standard, the Federal agency shall provide to the State agency a description of the project and coastal effects that it is legally permitted to release or does not otherwise breach the classified nature of the activity. Even when a Federal agency may not be able to disclose project information, the Federal agency shall conduct the classified activity consistent to the maximum extent practicable with the enforceable policies of state management programs. The term classified means to protect from disclosure national security information concerning the national defense or foreign policy, provided that it has been properly classified in accordance with the substantive and procedural requirements of an executive order.

§ 930.33
Identifying Federal agency activities affecting any coastal use or resource.
(a) Federal agencies shall determine which of their activities affect any coastal use or resource of states with approved management programs.

(1) Effects are determined by looking at reasonably foreseeable direct and indirect effects on any coastal use or resource. An action which has minimal environmental effects may still have effects on a coastal use (
e.g.,
effects on public access and recreational opportunities, protection of historic property) or a coastal resource. Therefore, Federal agencies shall, in making a determination of effects, review relevant state coastal management program policies as part of determining effects on any coastal use or resource.

(2) If the Federal agency determines that there are no effects on any coastal use or resource, and a negative determination under § 930.35 is not required, then the Federal agency is not required to coordinate with State agencies under section 307 of the Act.

(3) De minimis Federal agency activities. Federal agencies are encouraged to review their activities, other than development projects within the coastal zone, to identify de minimis activities, and request State agency concurrence that these de minimis activities should not be subject to further State agency review. De minimis activities shall only be excluded from State agency review if a Federal agency and State agency have mutually agreed. The State agency is not required to provide for public participation under section 306(d)(14) of the Act for the Federal agency's de minimis activity request. If the State agency objects to the Federal agency's de minimis finding then the Federal agency must provide the State agency with either a negative determination or a consistency determination pursuant to this subpart. De minimis activities are activities that have coastal effects that are trifling in nature and a Federal agency and State agency have mutually agreed that the activity is de minimis. OCRM is

available to facilitate a Federal agency's proposal.

(4) Environmentally beneficial activities. The State agency and Federal agencies may mutually agree to exclude environmentally beneficial Federal agency activities (either on a case-by-case basis or for a category of activities) from further State agency review.

(5) General consistency determinations, phased consistency determinations, and national or regional consistency determinations under § 930.36 are also available to facilitate federal-state coordination.

(b) Federal agencies shall consider all development projects within the coastal zone to be activities affecting any coastal use or resource. All other types of activities within the coastal zone are subject to Federal agency review to determine whether they affect any coastal use or resource.

(c) Federal agency activities and development projects outside of the coastal zone are subject to Federal agency review to determine whether they affect any coastal use or resource.

(d) Federal agencies shall construe broadly the effects test to provide State agencies with a consistency determination under § 930.34 and not a negative determination under § 930.35 or other determinations of no effects. Early coordination and cooperation between a Federal agency and the State agency can enable the parties to focus their efforts on particular Federal agency activities of concern to the State agency.

§ 930.34
Federal and State agency coordination.
(a)(1) Federal agencies shall provide State agencies with consistency determinations for all Federal agency activities affecting any coastal use or resource. To facilitate State agency review, Federal agencies should coordinate with the State agency prior to providing the determination.

(2)
Use of existing procedures.
Federal agencies are encouraged to coordinate and consult with State agencies through use of existing procedures in order to avoid waste, duplication of effort, and to reduce Federal and State agency administrative burdens. Where necessary, these existing procedures should be modified to facilitate coordination and consultation under the Act.

(b)
Listed activities.
State agencies should list in their management programs Federal agency activities which, in the opinion of the State agency, will have reasonably foreseeable coastal effects and therefore, may require a Federal agency consistency determination. Listed Federal agency activities shall be described in terms of the specific type of activity involved (
e.g.,
federal reclamation projects). In the event the State agency chooses to describe Federal agency activities with reasonably foreseeable coastal effects outside of the coastal zone it shall also describe the geographic location of such activities (
e.g.,
reclamation projects in coastal floodplains).

(c)
Unlisted activities.
State agencies should monitor unlisted Federal agency activities (
e.g.,
by use of intergovernmental review process established pursuant to E.O. 12372, review of NEPA documents,
Federal Register
) and should notify Federal agencies of unlisted Federal agency activities which Federal agencies have not subjected to a co

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A00-8982. Public record. Not legal advice.