Coastal Zone Management Act Federal Consistency Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 930

[Docket No. 030604145-4038-02]

RIN 0648-AR16

Coastal Zone Management Act Federal Consistency Regulations

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) revises the federal consistency regulations under the Coastal Zone Management Act of 1972 (CZMA). This final rule addresses the CZMA-related recommendations of the Report of the National Energy Policy Development Group, dated May 2001 (Energy Report) as described in NOAA's June 11, 2003, Notice of Proposed Rulemaking (68 FR 34851-34874) (proposed rule), and comments submitted to NOAA on the proposed rule. In addition, this final rule includes provisions complying with statutory amendments made in the Energy Policy Act of 2005 (Pub. L. 109-58) (Energy Policy Act) that concerned matters addressed in the proposed rule. This final rule continues to provide the balance between State-Federal-private interests embodied in the CZMA, while making improvements to the federal consistency regulations by clarifying some sections and providing greater transparency and predictability to the implementation of federal consistency. This final rule fully maintains the authority and ability of coastal States to review proposed federal actions that would have a reasonably foreseeable effect on any land or water use or natural resource of a State's coastal zone, as provided for in the CZMA and NOAA's regulations, as revised in 2000.

DATES:

Effective date:

These rules shall become effective on February 6, 2006.

Applicability date:

All appeals to the Secretary under 15 CFR part 930, subpart H, filed on or after February 6, 2006, shall be processed in accordance with the procedures and time frames adopted in subpart H of this final rule. For appeals to the Secretary under 15 CFR part 930, subpart H, any procedural or threshold issues which occurred prior to February 6, 2006, shall be governed by the regulations in 15 CFR part 930, subpart D, E, and/or F, in effect at the time the procedural or threshold issue occurred.

FOR FURTHER INFORMATION CONTACT:

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

Additional information on federal consistency can be located at OCRM's federal consistency Web page:

http://coastalmanagement.noaa.gov/czm/federal_consistency.html

.

SUPPLEMENTARY INFORMATION:

I. Background

For nearly 30 years, the CZMA has met the needs of coastal States, Great Lake States and United States Trust Territories and Commonwealths (collectively referred to as “coastal States” or “States”), Federal agencies, industry and the public to balance the protection of coastal resources with coastal development, including energy development. The CZMA requires the States to consider the national interest as stated in the CZMA objectives and give priority consideration to coastal dependant uses and processes for facilities related to national defense, energy, fisheries, recreation, ports and transportation, when adopting and amending their Coastal Management Programs (CMPs), and when making coastal management decisions. CZMA sections 303(2)(D) and 306(d)(8).

Coastal States have collaborated with industry on a variety of energy facilities, including oil and gas pipelines, nuclear power plants, hydroelectric facilities, and alternative energy development. States have reviewed and approved thousands of offshore oil and gas facilities and related onshore support facilities.

On December 8, 2000, NOAA issued a comprehensive revision to the federal consistency regulations, which reflected substantial effort over a five year period and participation by Federal agencies, States, industry, and the public. Given this recent broad-based review, NOAA did not propose a comprehensive re-write of the 2000 final rule; rather, it has made improvements to address the issues raised in the Energy Report, the proposed rule and comments submitted on the proposed rule.

In February 2001, the Vice President established the National Energy Policy Development Group to bring together business, government, local communities and citizens to promote a dependable, affordable, and environmentally sound National Energy Policy. Vice President Cheney submitted the Energy Report to President Bush on May 16, 2001.

The Energy Report contains numerous recommendations for a long-term, comprehensive energy strategy. The Energy Report found that the effectiveness of Commerce and Interior programs are “sometimes lost through a lack of clearly defined requirements and information needs from Federal and State entities, as well as uncertain deadlines during the process.” The CZMA and the Outer Continental Shelf Lands Act (OCSLA), a statute administered by the Minerals Management Service (MMS), within the Department of the Interior (Interior), are specifically mentioned in the Energy Report. The Energy Report recommended that Commerce and Interior “re-examine the current federal legal and policy regime (statutes, regulations, and Executive Orders) to determine if changes are needed regarding energy-related activities and the siting of energy facilities in the coastal zone and on the Outer Continental Shelf (OCS).” Energy Report at 5-7. There is no explicit reference to other energy programs in this recommendation, but its purpose is reinforced by related Energy Report recommendations which encourage and direct the streamlining of significant energy actions within the jurisdiction of other Federal agencies, including the Federal Energy Regulatory Commission (FERC).

In July 2002, NOAA published an Advanced Notice of Proposed Rulemaking, 67 FR 44407-44410 (July 2, 2002) (ANPR), seeking comments on whether improvements should be made to NOAA's federal consistency regulations. In response to public comments on the ANPR NOAA issued its proposed rule. After review of the comments received on the proposed rule and after waiting for the final report of the U.S. Commission on Ocean Policy (released in Fall 2004), NOAA has decided to issue this final rule.

NOAA emphasizes that the changes to the federal consistency regulations contained in this final rule fully maintain the authority granted to States to review federal actions, pursuant to the CZMA and NOAA's 2000 rule. This final rule does not, in any way, alter the scope of the federal consistency “effects test” or the obligation of Federal agencies and non-federal applicants for required federal licenses or permits to comply with the federal consistency requirement. The issue of whether a proposed Federal agency activity under CZMA section 307(c)(1)is subject to

State consistency review is still guided by the Federal agency's determination of reasonably foreseeable coastal effects, in accordance with NOAA's long-standing implementation and as articulated in the 2000 rule. Likewise, the application of State consistency review to federal license or permit activities, OCS plans and Federal financial assistance activities under CZMA sections 307(c)(3)(A) and (B) and 307(d) remains unchanged, i.e., the application of the “listing” and “unlisted” requirements in 15 CFR 930.53 and 930.54 remains unchanged. The time periods for the States' substantive consistency reviews and decisions remain unchanged (75 days for Federal agency activities, six months for federal license or permit activities and OCS plans, and the time periods established by the States for federal assistance activities). States may continue to amend their CMP's to describe State specific information necessary to start the CZMA review period for federal license or permit activities and OCS plans. States may continue to request additional information during the 75-day and six-month review periods and may still object for lack of information. The final rule does not change these and other important regulatory provisions. At the same time this final rule improves the clarity, transparency and predictability of the regulations within the discretion granted to NOAA by the CZMA.

Although this final rule does not change the fundamental federal consistency process, coastal states are strongly encouraged to coordinate and participate with applicants for energy projects and responsible Federal agencies early in project development. This effort will ensure that the States' ability to require NEPA documentation as necessary data and information does not delay the start of the six-month consistency review period or unnecessarily delay a Federal agency's decision for a proposed project it finds to be in the public interest.

While this rulemaking was pending the House and Senate passed the Energy Policy Act of 2005 (H.R. 6 and S. 10), signed by President Bush on August 8, 2005 (Pub. L. 109-58). Some provisions of the Energy Policy Act directly address matters raised in the proposed rule and comments on the proposed rule related to appeals under subpart H of these regulations. Specifically, the Energy Policy Act established new appeal deadlines: 30 days to publish a notice of appeal, then 160 days to develop a decision record, with provisions to stay the 160-day period for 60 days, and a 60-75 day period to issue a decision after the record is closed. These deadlines are shorter than NOAA proposed, but longer than the deadlines some commenters recommended in comments on the proposed rule. In addition, the Energy Policy Act proscribed the method of developing the Secretary's decision record for appeals of energy projects. These provisions were also similar to comments made on the proposed rule. The changes to subpart H in this final rule are necessary to ensure NOAA's regulations are in compliance with the Energy Policy Act and are within the scope of the provisions contained in the proposed rule and the public comments received on that proposal. Therefore, there was no need to re-propose subpart H for additional comment.

II. History of the CZMA and NOAA's Federal Consistency Regulations

The CZMA was enacted in 1972 to encourage States to be proactive in managing natural resources for their benefit and the benefit of the Nation. The CZMA recognizes a national interest in the resources of the coastal zone and in the importance of balancing the competing uses of those resources. The CZMA is a voluntary program for States. If a State elects to participate it must develop and implement a CMP pursuant to federal requirements.

See

CZMA section 306(d); 15 CFR part 923. State CMPs are comprehensive management plans that describe the uses subject to the management program, the authorities and enforceable policies of the management program, the boundaries of the State's coastal zone, the organization of the management program, and related State coastal management concerns. The State CMPs are developed with the participation of Federal agencies, industry, other interested groups and the public. Thirty-five coastal States are eligible to participate in the federal coastal management program. Thirty-four of the eligible States have federally approved CMPs. Illinois is not currently participating.

The CZMA federal consistency provision is a cornerstone of the CZMA program and a primary incentive for States' participation. Federal consistency is a limited waiver of federal supremacy and authority. Federal agency activities that have coastal effects must be consistent to the maximum extent practicable with the federally approved enforceable policies of the State's CMP. In addition, non-federal applicants for federal authorizations and funding must be fully consistent with the enforceable policies of State CMPs. While States have negotiated changes to thousands of federal actions over the years, States have concurred with approximately 93%-95% of all federal actions reviewed.

NOAA's federal consistency regulations were first promulgated in 1979. In late 1996, OCRM began a process to comprehensively revise the regulations in consultation with Federal agencies, States, industry, Congress, and other interested parties. NOAA published a proposed rule in April 2000 and a final rule on December 8, 2000, which became effective on January 8, 2001. Most of the changes in the revised 2000 regulations were dictated by changes in the CZMA or by specific statements in the accompanying legislative history. For instance, the 2000 regulations added language concerning the scope of the federal consistency “effects test.” Prior to the CZMA 1990 amendments, Federal agency activities “directly affecting” the coastal zone were subject to federal consistency. The 1990 CZMA amendments broadened this language by dropping the word “directly” to include actions with “effects” on any land or water use or natural resource of the coastal zone. Other changes to the original 1979 regulations improved and clarified procedures based on long-standing interpretive practice.

There are several basic statutory tenets to federal consistency. These are:

1. A federal action is subject to federal consistency if it has reasonably foreseeable coastal effects: the “effects test.” CZMA section 307.

2. Federal actions cannot be categorically exempted from federal consistency—the effects test determines the application of the CZMA. CZMA section 307.

3. There are no geographical boundaries to the application of the effects test. CZMA section 307.

4. Early coordination between Federal agencies, applicants and States is encouraged. CZMA section 307.

5. State federal consistency decisions must be based on enforceable policies that are approved by NOAA as part of the State's federally approved CMP. CZMA section 307.

6. States must provide for public comment on their federal consistency decisions. CZMA sections 307; 306(d)(14).

7. Federal development projects within a State's coastal zone are automatically subject to federal consistency. CZMA section 307(c)(2).

8. The Federal agency determines whether a Federal agency activity has coastal effects, and, if there are coastal effects, must provide a consistency determination to the affected State(s) no

later than 90 days before final approval unless the Federal agency and the State agree to a different schedule. CZMA section 307(c)(1).

9. A Federal agency activity must be carried out in a manner consistent to the maximum extent practicable with the enforceable policies of a State's CMP. However, a Federal agency may proceed over a State's objection if the Federal agency provides the State a written statement showing that its activity is consistent to the maximum extent practicable. CZMA section 307(c)(1), (2).

10. States and Federal agencies may seek mediation by the Secretary to resolve serious federal consistency disputes. CZMA section 307.

11. An activity proposed by a non-Federal entity for a required federal license or permit (including an OCS oil and gas plan) is subject to federal consistency if the activity will have reasonably foreseeable coastal effects. CZMA section 307(c)(3)(A) and (B).

12. An applicant for a required federal license or permit activity resulting in coastal effects, including OCS plans, must provide affected States with a consistency certification and necessary information and data supporting the certification. The State must object to or concur with the certification within six months or its concurrence is presumed. For review of OCS plans States must first provide a three-month notice as to the status of its review and if the three-month notice is not provided, then concurrence is presumed. CZMA section 307(c)(3)(A) and (B).

13. An applicant can appeal the State's objection to the Secretary of Commerce, who can override the State's objection if the Secretary finds that the activity is consistent with CZMA objectives or is otherwise necessary in the interest of national security. The Secretary, in making a decision on an appeal, must provide a reasonable opportunity for detailed comments from the Federal agency involved and from the State. CZMA section 307(c)(3)(A).

14. The authorizing Federal agency cannot approve a federal license or permit for an activity with reasonably foreseeable coastal effects unless the State concurs or the Secretary overrides the State's objection. CZMA section 307(c)(3)(A) and (B).

15. State agencies and local governments applying for Federal funds for activities that have reasonably foreseeable coastal effects must provide the State with a consistency certification and the authorizing Federal agency cannot issue the funds unless the State concurs. Applicant agencies can also appeal State objections to the Secretary. CZMA section 307(d).

16. Federal consistency does not supersede, modify or repeal existing laws applicable to Federal agencies. CZMA section 307(e).

17. Federal consistency does not affect the requirements of the Clean Water Act or the Clean Air Act established by the Federal Government or the States and such requirements are part of the States' federally approved CMPs. CZMA section 307(f).

18. The Secretary shall have 30 days to publish a notice of appeal, then 160 days to develop a decision record, and may stay the 160-day period for 60 days, and has a 60-75 day period to issue a decision after the record is closed. CZMA section 319.

These are the statutory parameters of federal consistency. Since 1979, NOAA's federal consistency regulations have interpreted CZMA requirements and provided reliable procedures and predictability for the implementation of federal consistency. Even though the Secretary has discretion in the establishment of procedures to implement the CZMA's statutory provisions, NOAA, in this final rule, as in the 2000 rule, is not altering its long-standing interpretations of the major regulatory definitions set forth in the 1979 regulations, endorsed by Congress in the 1990 reauthorization of the CZMA, relied on in court decisions and as described in the 2000 rule. Consistent with the statute, the 2000 rule and court decisions, NOAA has retained these fundamental and well-established regulatory interpretations. The improvements contained in this final rule change the language of some regulatory provisions to provide greater clarity, transparency and predictability to federal consistency procedures, while retaining NOAA's long-standing interpretations of the CZMA. NOAA's regulations have operated well for the Federal and State agencies and permit applicants and the changes in this final rule will allow them to continue to do so more efficiently and effectively.

III. The Role of the CZMA in OCS and Other Energy Development

The CZMA and the OCSLA interact both by explicit cross-reference in the statutes and through their regulatory implementation. Both statutes mandate State review of OCS oil and gas Exploration Plans (EP's) and Development and Production Plans (DPP's). Both statutes and their corresponding regulations provide a compatible and interrelated process for States to review EP's and DPP's.

When MMS offers an OCS lease sale, it is a Federal agency activity. If MMS determines that the lease sale will have reasonably foreseeable coastal effects, then MMS must provide a CZMA consistency determination to the affected State(s) examining whether the lease sale is “consistent to the maximum extent practicable” with the enforceable policies of the State's CMP. If the State objects, MMS may still proceed with the lease sale if MMS' administrative record and the OCSLA show that it is fully consistent or consistent to the maximum extent practicable. The ability of a Federal agency to proceed over a State's objection to a proposed Federal agency activity existed prior to the 2000 rule, was further clarified in the 2000 rule and remains unchanged by this final rule.

The CZMA requires that when a lessee seeks MMS approval for its EP or DPP, the lessee must certify to the affected State(s) that the activities authorized by the licenses or permits described in the plans are fully consistent with the enforceable policies of the State's CMP. If the State objects to the consistency certification, then MMS is prohibited from approving the license or permits described in detail in the EP or DPP. The lessee may appeal to the Secretary of Commerce to override the State objection and allow MMS to issue its approvals described in the plan. When deciding an appeal, the Secretary balances the national interest in energy development, among other elements, against adverse effects on coastal resources and coastal uses.

The CZMA and NOAA's regulations ensure that the national interest in the CZMA objectives are furthered. These safeguards are discussed below using OCS oil and gas activities as illustrations.

The

“Effects Test.”

As discussed above, federal consistency review is triggered only when it is reasonably foreseeable that the federal action will have coastal effects, referred to as the “effects test.” Consistency does NOT apply to every action or authorization of a Federal agency, or of a non-federal applicant for federal authorizations.

For OCS oil and gas lease sales, MMS determines whether coastal effects are reasonably foreseeable and provides affected States with a consistency determination. For example, MMS has established the Eastern Planning, Central Planning and Western Planning Areas for the Gulf of Mexico. MMS may determine that lease sales in the Eastern Planning Area will not have reasonably foreseeable effects on State coastal uses or resources within the Central Planning Area. Therefore, MMS may choose not to provide States adjacent to the Central Planning Area with a consistency

determination. MMS could also determine that a lease sale held far offshore in the Eastern Planning Area would not have foreseeable coastal effects on Florida or Alabama coastal uses or resources.

For OCS EP's and DPP's the CZMA mandates State consistency review. However, as with Federal agency activities, a coastal State's ability to review the Plans stops at the point where coastal effects are not reasonably foreseeable. Whether coastal effects are reasonably foreseeable is a factual matter to be determined by the State, the applicant and MMS on a case-by-case basis.

If a State wanted to ensure that OCS EP's and DPP's located in a particular offshore area would be subject to State CZMA review automatically, a State could, if NOAA approved, amend its CMP to specifically describe a geographic location outside the State's coastal zone where such plans would be presumed to affect State coastal uses or resources.

See

15 CFR 930.53. Or, if a State wanted to review an EP or DPP where the applicant and/or MMS have asserted that coastal effects are not reasonably foreseeable, the State could request approval from NOAA to review such plans on a case-by-case basis.

See

15 CFR 930.54 (unlisted activities). In both situations, NOAA would approve only if the State made a factual demonstration that effects on its coastal uses or resources are reasonably foreseeable as a result of activities authorized by a particular EP or DPP. Similarly, where the applicant or FERC has asserted that a proposed project located outside the coastal zone or outside a geographic location described in a state's management program pursuant to 15 CFR 930.53, will not have reasonably foreseeable coastal effects, NOAA would not approve a State request to review the project unless the State made a factual demonstration that the project has reasonably foreseeable coastal effects. This final rule does not change that process.

NOAA Approval of State CMPs.

NOAA, with substantial input from Federal agencies, local governments, industry, non-governmental organizations and the public, must approve State CMPs and their enforceable policies, including subsequent changes to a State's CMP. NOAA's required approval ensures consideration of Federal agency activities and federal license or permit activities, including OCS plans. For example, NOAA has denied State requests to include policies in its federally approved CMP that would prohibit all oil and gas activities off its coast because such policies conflict with the CZMA requirements to consider the national interest in energy development,

see

CZMA sections 303(2)(D) and 306(d)(8), and to balance resource protection with coastal uses of national significance.

Consistent to the Maximum Extent Practicable and Fully Consistent.

For Federal agency activities under CZMA section 307(c)(1), such as OCS Lease Sales, a Federal agency may proceed with the activity over a State's objection if the Federal agency determines its activity is consistent to the maximum extent practicable with the enforceable policies of the State's CMP. This means that even if a State objects, MMS may proceed with an OCS lease sale when MMS provides the State with the reasons why the OCSLA and MMS's administrative record supporting the lease sale decisions prohibit MMS from fully complying with the State's enforceable policies. MMS could also proceed if it determined that its activity was fully consistent with the State's enforceable policies. Under NOAA's regulations, the consistent to the maximum extent practicable standard also allows Federal agencies to deviate from State enforceable policies and CZMA procedures due to unforeseen circumstances and emergencies. This final rule does not change the application of the consistent to the maximum extent practicable standard.

Appeal to the Secretary of Commerce.

For non-federal applicants for federal authorizations, such as OCS EP and DPP approvals and FERC certificates under the Natural Gas Act or licenses under the Federal Power Act, the applicant may appeal a State's objection to the Secretary of Commerce pursuant to CZMA sections 307(c)(3) and (d). The Secretary overrides the State's objection if the Secretary finds that the activity is consistent with the objectives or purposes of the CZMA or is necessary in the interest of national security. If the Secretary overrides the State's objection, then the Federal agency may issue its authorization.

Since 1978, MMS has approved over 10,600 EP's and over 6,000 DPP's. States have concurred with nearly all of these plans. In the 30-year history of the CZMA, there have been only 18 instances where the offshore oil and gas industry appealed a State's federal consistency objection to the Secretary of Commerce. The Secretary issued a decision in 14 of those cases. The Secretary did not issue a decision for the other 4 OCS appeals because the appeals were withdrawn due to settlement negotiations between the State and applicant or a settlement agreement between the Federal Government and the oil companies involved in the projects. Of the 14 decisions (1 DPP and 13 EP's), there were 7 decisions to override the State's objection and 7 decisions not to override the State.

Since the 1990 amendments to the CZMA, there have been several OCS oil and gas lease sales by MMS and only one State objection. In that one objection OCRM determined that the State's objection was not based on enforceable policies, MMS determined that it was consistent to the maximum extent practicable with the State's CMP, and the lease sale proceeded. Thus, all lease sales offered by MMS since the 1990 amendments have proceeded after State federal consistency review. In addition, since 1990, there have been six State objections to OCS plans. In three of those cases, the Secretary did not override the State's objection. In two of the cases the Secretary did override the State allowing MMS approval of the permits described in the plans, and in one case the State objection was withdrawn as a result of a settlement agreement between the Federal Government and the oil companies involved in the project.

With respect to FERC jurisdictional matters, there have been two State objections in the past three years to applications for certificates of public convenience and necessity to construct and operate natural gas pipelines. In one of these cases, the Secretary ruled the project did not meet the requirements for overriding State objections. In the other, the Secretary overrode State objections and ruled the project could proceed.

Presidential Exemption.

After any appealable final judgement, decree, or order of any Federal court, the President may exempt from compliance the elements of a Federal agency activity that are found by a Federal court to be inconsistent with a State's CMP, if the President determines that the activity is in the paramount interest of the United States. CZMA § 307(c)(1)(B). This exemption was added to the statute in 1990 and has not yet been used.

Mediation.

Mediation has been used to resolve federal consistency disputes and allowed federal actions to proceed. In the event of a serious disagreement between a Federal agency and a State, either party may request that the Secretary of Commerce mediate the dispute. NOAA's regulations also provide for OCRM mediation to resolve disputes between States, Federal agencies, and other parties.

IV. Explanation of Proposed Changes to the Federal Consistency Regulations

Rule Change 1:

§ 930.1(b) and (c) Overall Objectives. This change moves the parenthetical with the description of “federal action” from § 930.11(g) to the first instance of the term in § 930.1(b). Federal action is used throughout the regulations to refer, when appropriate, to subparts C, D, E, F and I. The final rule adds a statement to § 930.1(c) to encourage states to participate in the administrative processes of federal agencies. This would strengthen the early coordination objectives of the CZMA and enhance the ability of federal agencies to address the enforceable policies of a state's management program.

Rule Change 2:

§ 930.10 Definitions Table of Contents—Definition of Failure Substantially to Comply with an OCS Plan. The reference to section 930.86(d) is incorrect. There was no 930.86(d). The reference is now to 930.85(c). There is no change from the proposed rule.

Rule Change 3:

§ 930.11(g) Definitions—Effect on any coastal use or resource (coastal effects). This change moves the parenthetical for “federal actions” to the first instance of federal action in § 930.1(b) and inserts more specific language for Federal agency activity and federal license or permit activity. There is no change from the proposed rule.

Rule Change 4:

§ 930.31(a) Federal agency activity. This change does not alter the current application of the definition of Federal agency activity, but clarifies that a “function” by a Federal agency refers to a

proposal for action.

The examples included are also re-written to emphasize that a proposed action is an essential element of the definition. In response to commenters' concerns that Federal agencies may view this change as a basis to exempt some activities from the effects test, NOAA reiterates that this change does

not

affect the application of the effects test. Congress amended the CZMA in 1990 to make it clear that no federal actions are categorically exempt from federal consistency and that the determination of whether consistency applies is a case-by-case analysis of whether a Federal agency activity will have reasonably foreseeable effects on any coastal use or resource.

See

H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess. 968-975, 971; 136 Cong. Rec. H 8076 (Sep. 26, 1990); and 65 FR 77125 (December 8, 2000). The change to this section is consistent with Congressional directives.

It has always been NOAA's view that federal consistency applies to proposals to take an action or initiate a series of actions that have reasonably foreseeable coastal effects, and not to agency deliberations or internal tasks related to a proposed agency action.

See e.g.

, sections in NOAA's 2000 regulations that refer to “proposed” activities: 15 CFR 930.36(a), 930.35, 930.39(a), 930.46(a), 930.1(c), 930.11(d).

See also

discussion in the preamble to the 2000 final rule: 65 FR 77130, Col. 2-3 (December 8, 2000). Thus, a planning document that explores possible projects or priorities for an agency is not a Federal agency activity, as there is no action proposed. However, a Federal agency plan or rulemaking proposing a new action is a Federal agency activity subject to the effects test.

Not all “planning” or “rulemaking” activities are subject to federal consistency since such planning or rulemaking may merely be part of the agency's deliberative process. Likewise, the plan or rulemaking may not propose an action with reasonably foreseeable coastal effects and would therefore not be subject to federal consistency. If, however, an agency's administrative deliberations result in a plan to take an action, or a rulemaking proposing an action or a directive, then that plan or rulemaking could be subject to federal consistency if coastal effects are reasonably foreseeable. For example, MMS produces a 5-year Leasing Program “Plan,” pursuant to the OCSLA. MMS has informed NOAA that the 5-Year Program Plan is a preliminary activity that does not set forth a proposal for action and thus, coastal effects cannot be determined at this early stage. Accordingly, MMS' proposal for action would occur when MMS conducts a particular OCS oil and gas lease sale.

Once a Federal agency proposes an action, it is the proposal for action which is the subject of the consistency review. The State only reviews the proposed action and does not review all tasks, ministerial activities, meetings, discussions, and exchanges of views incidental or related to a proposed action, and does not review other aspects of a Federal agency's deliberative process. In addition, Federal agency activities do not include interim or preliminary activities incidental or related to a proposed action for which a consistency determination has been or will be submitted and which do not make new commitments for actions with coastal effects. Such interim or preliminary activities are not independent actions subject to federal consistency review.

For example, where a Federal agency has not yet submitted a consistency determination to a State or where a State has already concurred with a Federal agency's consistency determination for a proposed action, planning activities related to the agency's deliberative process may occur before or after the State's federal consistency review that are incidental to the proposed action. In these cases the interim or preliminary activity would not be subject to federal consistency review.

In the OCS oil and gas context, examples of interim or preliminary activities which are not Federal agency activities include the publication of OCS 5-Year programs, as discussed above; or rulemakings establishing administrative procedures for OCS-related activities that do not affect coastal uses or resources (

e.g.

, rulemaking prescribing the completion and submission of forms). Consistent with the Ninth Circuit's decision in

California ex rel. Cal. Coastal Comm'n

v.

Norton,

150 F. Supp.2d 1046 (N.D. Cal. 2001),

aff'd,

311 F.3d 1162 (9th Cir. 2002), MMS action to grant or direct suspensions of OCS operations or production is an interim or preliminary activity and not a Federal agency activity subject to federal consistency when the lease suspension would not have reasonably foreseeable coastal effects. If the State had previously reviewed any reasonably foreseeable coastal effects of a lease suspension during the State's review of the lease sale, EP or DPP for federal consistency, then the lease suspension would not be the subject of a new consistency review. In this sense, the lease suspension is an interim or preliminary activity.

See

NOAA's response to comments 25 and 26 for further discussion on lease suspensions and

California

v.

Norton

and NOAA's conclusion that in all foreseeable instances, lease suspensions would not be subject to federal consistency review since (1) in general, they do not authorize activities with coastal effects, and (2) if they did contain activities with coastal effects, the activities and coastal effects would be covered in a State's review of a previous lease sale, an EP or a DPP. If a State believes that a particular lease suspension should be subject to federal consistency, the State should notify MMS. MMS could (1) agree with the State that coastal effects are reasonably foreseeable and provide the State with a consistency determination; (2) provide the State with a negative determination pursuant to 15 CFR 930.35; and/or (3) determine that the lease suspension is an interim activity that does not propose a new action with coastal effects.

In another example of what is subject to State consistency review, consider

the situation when the Navy proposes to construct a pier. The project involves compliance with numerous federal laws,

e.g.

, National Environmental Policy Act (NEPA) documents, Endangered Species Act (ESA) section 7 consultation, a Rivers and Harbors Act section 10 permit from the Army Corps of Engineers (Corps), contracts with a construction company to build the pier, etc. These various authorizations and activities related to the Navy's proposal to build the pier are not separate Federal agency activities subject to federal consistency. The Federal agency activity for purposes of 15 CFR 930.31 is the proposal to build the pier. Under 15 CFR 930.36(b), the Federal agency determines when it has sufficient information to provide the State with a consistency determination. For instance, in this example of the Navy pier, the Navy could conclude that under Navy procedures the pier is not a proposed action until the proposed activity requires analysis under NEPA. The State reviews only the pier proposal. The State uses the information provided by the Navy, pursuant to 15 CFR 930.39(a), to evaluate coastal effects and determine consistency with the State's enforceable policies. The State may request, or the Navy may provide, the Corps section 10 permit application, or the Biological Opinion under the ESA or the NEPA document, in addition to the Navy's consistency determination. Information in these documents may be used as part of the necessary information required by 15 CFR 930.39, but they are not required to be part of the information required in § 930.39(a) and are not reviewed as the proposed Federal agency activity for consistency.

NOAA has changed “event(s)” to “activity(ies)” since the term “activities” more closely follows the statute and NOAA's regulations.

The final rule makes minor changes from proposed rule. There is no change in meaning from the proposed rule. The first sentence in this section in the proposed rule language was grammatically awkward. The final rule merely breaks the first sentence into two sentences and makes minor grammatical corrections to the second sentence.

Rule Change 5:

§ 930.31(d) Federal agency activity—General Permits. In the 2000 rule, NOAA acknowledged the hybrid nature of general permits and gave Federal agencies the option of issuing a general permit under either CZMA § 307(c)(1) (Federal agency activity) or CZMA § 307(c)(3)(A) (federal license or permit activity), even though NOAA has opined that, for CZMA purposes, a general permit was more appropriately treated as a Federal agency activity. In this final rule, NOAA has removed the option to allow Federal agencies to treat their general permits as a federal license or permit activity for purposes of complying with CZMA § 307 and 15 CFR part 930. If a general permit is proposed by a Federal agency and coastal effects are reasonably foreseeable, then the general permit is a Federal agency activity under CZMA § 307(c)(1) and 15 CFR part 930, subpart C. NOAA's determination that general permits are Federal agency activities and not federal license or permit activities under CZMA § 307 is for CZMA purposes only and is based on the reasons described below, which are specific to the requirements of the CZMA. Therefore, this determination does not affect the status of general permits under the Administrative Procedure Act or under any other federal statute. For example, while general permits issued under the Clean Water Act are Federal agency activities under these revised regulations, NOAA recognizes that EPA continues to consider those same permits to be licenses or permits for purposes of the APA and for purposes of State certification under Clean Water Act section 401.

There are several reasons why a general permit should not be a federal license or permit activity under CZMA § 307. Under NOAA's regulations, Federal agencies are not “applicants” within the meaning of 15 CFR 930.52.

See

65 FR 77145 (col 1&2) (Dec. 8, 2000). Even if NOAA were to change its regulations to allow a Federal agency to be an “applicant,” it is not clear how the Federal agency could appeal the State's objection to the Secretary of Commerce.

Further, even if a general permit were treated as a federal license or permit activity for CZMA § 307 purposes and a State objected, it would be problematic for the potential users of a general permit to appeal the State's objection since there would be no case specific factual inquiry on which the Secretary could base an appeal decision.

Other changes clarify that if a State objects to a consistency determination for a general permit, the general permit would, pursuant to the consistent to the maximum extent practicable standard as described in 15 CFR 930.32, still be in legal effect for that State, but that 15 CFR part 930, subpart C of the consistency regulations would no longer apply. Thus, a State objection to a consistency determination for the issuance of a general permit would alter the form of CZMA compliance required, transforming the general permit into a series of case-by-case CZMA decisions and requiring an individual who wants to use the general permit to submit an individual consistency certification to the State agency in compliance with 15 CFR part 930, subpart D. However, all provisions of the license or permit sections would apply, including the “listing,” “unlisted,” and “geographic location description” requirements in §§ 930.53 and 930.54. Once the State concurs with the certification, then an individual user may undertake the activity(ies) authorized by the general permit in accordance with the State's concurrence. If the State objects to the individual user's (now an applicant under subpart D) consistency certification, then the individual cannot undertake the activity(ies) authorized by the general permit, unless the individual user (now the applicant) appeals the State's objection to the Secretary of Commerce, pursuant to subpart H, and the Secretary overrides the State's objection.

NOAA reiterates that if a State concurs with a consistency determination for a general permit, then the State has no authority under the CZMA to review individual uses of the general permit under subpart C or D. For example, in the OCS oil and gas context, if a State has concurred with the Environmental Protection Agency's consistency determination for an OCS National Pollutant Discharge Elimination System (NPDES) general permit under the Clean Water Act, then the State may not review the use of the NPDES general permit for consistency at the OCS EP or DPP stage of reviews or when a facility files a notice of intent to be covered by a general permit under the NPDES regulations. If, however, a State objects to the OCS NPDES general permit, then each user, or “applicant” in CZMA parlance, must file a consistency certification with the State pursuant to subpart D, and obtain the State's concurrence before it may undertake the activities authorized by the NPDES general permit.

Minor editorial changes were made from the proposed rule with no change in meaning. The term “approval” was replaced with “issuance” since issuance more accurately describes the distinction between a general permit and case-by-case permits. The last sentence was not clear regarding when someone had to provide the State with a certification after a State objected to a general permit. The change provides a clearer statement that only applicants and persons who want to use a general permit would have to provide the certification, and not all potential users in the State. The general permit section

would only apply to subpart D and E applicants.

Rule Change 6:

§ 930.35(d) General negative determination. Section 930.35(d) is changed to (e) and a new section 930.35(d) is added. The general negative determination (General ND) has been developed as an administrative convenience when Federal agencies undertake repetitive activities that, either on an individual, case-by-case basis or cumulatively, do not have coastal effects. The General ND does not alter the factual basis required for federal consistency reviews.

A General ND does not alter the requirement for Federal agencies to provide consistency determinations to coastal States when there are reasonably foreseeable coastal effects, the “effects test.” The Federal agency must still make an analysis of coastal effects for the repetitive activities, individually and cumulatively. The General ND is an analogue to the existing General consistency determinations (15 CFR 930.36(c)) (which is for repetitive activities which do have cumulative effects). For example, a General ND may apply to activities far away from the coastal zone because coastal effects are not foreseeable, but might not apply to the same set of activities if proposed in or near the coastal zone where the proximity of the activities to coastal uses or resources may have coastal effects and require a General consistency determination or individual consistency determination.

A Federal agency is not required to use a General ND. If any one of the conditions for a negative determination are met, then a Federal agency could choose to provide the State with either an individual Negative Determination, or if applicable, a General ND. The conditions for a Negative Determination are when a Federal agency determines that its proposed action will not have coastal effects and the activity is (1) listed in the State's program or the State has notified the Federal agency that it believes coastal effects are reasonably foreseeable, (2) the activity is the same as or is similar to activities for which consistency determinations have been prepared in the past, or (3) the Federal agency undertook a thorough consistency assessment and developed initial findings on the coastal effects of the activity.

See

15 CFR 930.35(a)(1)-(3).

If a State subsequently finds that a General ND may no longer be applicable, the State agency may request that the Federal agency reassess the General ND. In the case of a disagreement between the State and the Federal agency, the conflict resolution provisions of subpart G are available.

A minor editorial change was made from the proposed rule. NOAA replaced the word “specified” with “specific.”

Rule Change 7:

§ 930.37 Consistency determinations and National Environmental Policy Act (NEPA) requirements. The change clarifies information needs related to NEPA documents by providing more specific direction of the long-standing understanding of the distinction between NEPA and CZMA. Federal agencies are required to submit information to support a consistency determination, pursuant to the requirements in § 930.39, and may do so in any manner it chooses. Thus, even though a Federal agency may provide a NEPA document to support its consistency determination, States cannot require Federal agencies to do so.

Rule Change 8:

§ 930.41(a) State agency response. This change clarifies when the State's consistency review period begins for Federal agency activities. The changes provide additional clarification that the State's determination of whether the information provided by the Federal agency pursuant to 15 CFR 930.39(a) is complete, is not a substantive review. Instead, it is a “checklist” review to see if the description of the activity, the coastal effects, and the evaluation of the State's enforceable policies are included in the submission to the State agency. If the items required by § 930.39(a) are included, then the 60-day review starts. This review does not determine or evaluate the

substantive adequacy

of the information. The adequacy of the information is a component of the State's substantive consistency review which occurs during the 60-day review period.

To help resolve disputes as to when the 60-day review period started when a State later claims that required information was not provided, NOAA replaced the requirement to “immediately” notify the Federal agency that information required by § 930.39(a) is missing with a 14-day notification period. If the State agency has not notified the Federal agency of missing information within this 14-day period, then the State waives the ability to make that claim and the 60-day review period is deemed to have started when the State received the initial determination and information. This means that State agencies should pay close attention to the date they receive consistency determinations. States retain the ability to conduct a full 60-day review (or 75-day review with extension), request additional information during the State's 60-day review, or object for lack of information at the end of the 60-day review period.

A minor editorial change was made from the proposed rule. The last sentence was grammatically awkward so it was broken into two sentences, with no change in meaning.

Rule Change 9:

§ 930.51(a) Federal license or permit. The language changes emphasize and clarify NOAA's long-standing view of the elements needed determine that an authorization from a Federal agency is a “federal license or permit” within the meaning of the CZMA and therefore subject to State federal consistency review. First, Federal law must require that the applicant obtain the federal authorization. Second, the purpose of the federal authorization is to allow a non-federal applicant to conduct a proposed activity. Third, the activity proposed must have reasonably foreseeable effects on a State's coastal uses or resources, and fourth, the proposed activity was not previously reviewed for federal consistency by the State agency (unless the authorization is a renewal or major amendment pursuant to § 930.51(b)). All four of these elements are required to trigger federal consistency review.

For CZMA federal consistency purposes, “federal license or permit” does not include federal authorizations for activities that do not have coastal effects. Federal consistency does not apply to a required federal certification of an applicant's ministerial paperwork which is merely incidental or related to an activity that either does not have coastal effects or an activity that is already subject to federal consistency review. Ministerial certifications which are merely incidental to an activity undertaken by the applicant and which has already or will soon be the subject of a full federal consistency review are not federal license or permit activities for subpart D purposes. The following examples are authorizations which are not a “federal license or permit” under the CZMA:

Example 1.

MMS makes certain determinations such as the qualification of bidders for OCS lease sales, bonding certifications, certifications of financial responsibility, approvals of departures from regulations in order to enhance safety.

Example 2.

A Federal agency certifies equipment to be used for an activity where the activity has already been the subject of a consistency review.

Example 3.

MMS issuance of “Notification requirements” which merely require the operator to notify MMS of an activity and where MMS’ approval is not required are not subject to federal consistency.

Example 4.

When the Coast Guard merely reviews the transportation plan of an energy company transporting spent nuclear waste by ship, there is no “license or permit” under CZMA section 307(c)(3)(A) because Coast Guard authorization is not required by Federal law.

See New Jersey

v.

Long Island Power Authority,

30 F.3d 403 (3d Cir. 1994) (Coast Guard review of vessel transportation plans was not a Federal agency activity or federal license or permit activity).

However, a lease issued by a Federal agency to a non-federal entity which is the only federal authorization for the use of the federal property for a non-federal activity is a “federal license or permit,” pursuant to section 307(c)(3)(A), if the applicant is required to obtain a lease from the Federal agency for use of the Federal property, the proposed activity will have coastal effects, and the State did not previously review a required federal authorization for the same activity.

Thus, the language changes to the rule ensure that the definition of “federal license or permits” is not overly-inclusive or beyond the commonly understood meaning of license or permit, while at the same time retaining the phrase “any required authorization” to capture any form of federal license or permit that is: (1) Required by Federal law, (2) authorizes an activity, (3) the activity to be authorized has reasonably foreseeable coastal effects, and (4) the authorization is not incidental to a federal license or permit previously reviewed by the State. Thus, the removal of the forms of approvals listed in the current language does not exclude any category of federal authorizations from federal consistency, but instead emphasizes that any form of federal authorization must have the required elements to be considered a “federal license or permit” for CZMA purposes.

Factual disputes concerning whether a federal authorization is subject to federal consistency can be addressed through NOAA's procedures for the review of listed or unlisted federal license or permit activities. 15 CFR 930.53 and 930.54.

The effects test language previously at the end of the definition is deleted as superfluous since subpart C contains the effects analysis for Federal agency activities.

A minor editorial change was made from the proposed rule with no change in meaning. The proposed language was somewhat redundant and awkward. NOAA moved the end of the first sentence to the beginning, providing a clearer flow for the sentence. In addition, a minor correction was made to add the phrase “federal license or permit” to the second sentence.

Rule Change 10:

§ 930.51(e) Substantially different coastal effects. Section (e) was added in the 2000 rule to emphasize that determining whether the effects from a renewal or major amendment are substantially different is a case-by-case factual determination requiring the input of all parties. NOAA used the phrase “the opinion of the State agency shall be

accorded deference,

” (emphasis added) to help ensure that the State agency has the opportunity to review coastal effects which may be substantially different than previously reviewed. NOAA expected that the parties would discuss the matter and agree whether effects are substantially different. NOAA did not intend to use the phrase to have the State agency make the decision on whether coastal effects are substantially different. Thus, to provide clarification, NOAA has amended the section so that the Federal permitting agency makes this determination after consulting with the State and applicant. If a State disagrees with a Federal agency's determination concerning substantially different coastal effects, then the State could either request NOAA mediation or seek judicial review to resolve the factual dispute.

A minor editorial change was made from the proposed rule breaking the second sentence into two sentences, with no change in meaning.

Rule Change 11:

§ 930.58(a)(1) Necessary data and information. This change provides more specific information requirements for federal license or permit activities. The purpose of § 930.58 is to identify the information needed to start the six-month consistency review period and to the extent possible, identify the information needed by the State agency to make its concurrence or objection. Thus, the more specific the information requirements are, the more predictable and transparent the process.

Section 930.58(a)(1) is reorganized to clarify that “necessary data and information” means (1) a copy of the federal application, (2) all supporting material provided to the Federal agency in support of the application, (3) information that is required and specifically described in the State's management program, and (4) if not included in 1 or 2, a detailed description of the activity, its associated facilities and the coastal effects of the activity. The evaluation of the State's enforceable policies is retained under § 930.58(a)(3).

NOAA removed the clause in § 930.58(a)(1) that said “and comprehensive data and information sufficient to support the applicant's consistency certification.” The language removed is viewed as ambiguous because it could refer to the other paragraphs in this section or to other undefined information, and could create uncertainty in the determination of when the six-month review period starts. Section 930.58(a)(2) allows the State to describe in its CMP the necessary specific information in addition to that required by NOAA regulations.

These changes do not affect a State's ability to specifically describe “necessary data and information” in the State's federally approved management program (§ 930.58(a)(2)), or to request additional information during the six-month review period (§ 930.60(c)), or to object for lack of information (§ 930.63(c)).

There is no change from the proposed rule.

Rule Change 12:

§ 930.58(a)(2) Necessary data and information (State permits). In the 2000 rule, NOAA allowed States to describe State permits as necessary data and information. Unfortunately, implementation of this provision revealed the potential for States to require applicants to obtain State permit approval before the six-month consistency review period could begin. This could result in a State consistency decision

before

the six-month review period even begins, thus potentially defeating the statutory time frames in the CZMA. In addition, the public comment on federal consistency could be rendered moot because necessary State approvals would already have been obtained. NOAA did not intend the 2000 rule to create a potential conflict between the statutorily defined six-month consistency review process and State permit requirements. While it may be appropriate or necessary for a State to require completed State permit

applications

as necessary data and information, it is not appropriate to require a State approved or issued permit. Therefore, NOAA has removed “State permits” as eligible necessary data and information requirements, but has retained State permit applications. This change, as described in the proposed rule, contemplated “complete” State permit applications, and NOAA has included “complete” in the final rule. When appropriate, the applicant and the State could agree, pursuant to § 930.60, to stay the six-month period until a specific date to allow for issuance of the State permit. A State, at the end of the six-month review period may, of course, object if the applicant has not yet received the State permit.

In addition, NOAA added language to clarify that when a Federal statute requires a Federal agency to initiate the CZMA review prior to its completion of NEPA compliance, NEPA documents will not be considered necessary data and information pursuant to § 930.58(a)(2). For example, when the operation of a Federal statute precludes a Federal agency from delaying the start of the CZMA process because the NEPA document is not complete, NEPA documents listed in a State's management program cannot be considered necessary data and information. This issue has come to light in the case of the Outer Continental Shelf Lands Act (OCSLA).

See

explanation of rule change 15: § 930.76(a) and (b) Submission of an OCS plan, necessary data and information and consistency certification. In addition, neither the CZMA nor NEPA require the Federal agency to include CZMA consistency determination information in NEPA documents. Therefore, States cannot delay the start of the CZMA review period because CZMA consistency information is not included in a NEPA document.

Two minor changes were made from the proposed rule. As discussed in the preamble to the proposed rule and in this final rule NOAA intended the rule to refer to “completed” State permit applications. Thus, “completed” is added to the third sentence. The second change is the language regarding NEPA documents discussed above.

Rule Change 13:

§ 930.60 Commencement of State agency review. These changes clarify when the State's six-month review period begins for federal license or permit activities. The changes clarify that the State's determination of whether the information provided by the applicant pursuant to 15 CFR 930.58 is complete is not a substantive review. Instead it is a “checklist” review to see if the application, description of the activity, the coastal effects, the evaluation of the State's enforceable policies, and specific information described in the State's federally approved program are included in the submission to the State agency. If the items required by § 930.58 are included, then the six-month review starts. This review does

not

determine or evaluate the

substantive adequacy

of the information. The adequacy of the information is a component of the State's substantive review which occurs during the six-month review period. The change also further clarifies that a State may not stop, stay or otherwise alter the consistency review period once it begins, unless the applicant agrees in writing to stay the review period until a specific end date. NOAA deleted the word “extend” to avoid potential conflicts with the six-month period set by statute. Thus, the State agency and applicant can stay or “toll” the running of the six-month review period for an agreed upon time ending on a specific date, after which the remainder of the six-month review period would continue. Such agreements must be set forth in writing so that it is clear there is a meeting-of-the-minds between the State and the applicant. Ideally, the written agreement should be one document that both parties sign. The written agreement for a stay must refer to a specific end date and should not be written to require a later event or condition to be satisfied to end the stay.

If a State wants to require information in addition to that required by NOAA in § 930.58(a) prior to starting the six-month review period, the only way the State can do so is to amend its management program to identify specific “necessary data and information” pursuant to § 930.58(a)(2). This is not a new requirement, but was required in the 1979 rule and clarified in the 2000 rule.

NOAA also has removed a State's option of starting the six-month review period when a consistency certification has not been submitted.

See

below under

Collier Decision

for further information. The rest of the re-write of the section more clearly sets forth the existing provisions for starting the six-month review period when (1) the applicant has not provided a consistency certification, but has provided the necessary data and information described in § 930.58(a), (2) the applicant has provided the consistency certification, but not all necessary data and information described in § 930.58(a), or (3) the applicant has not provided either the consistency certification or all necessary data and information. The paragraphs have been renumbered accordingly.

The Collier Decision.

Under the 2000 rule, § 930.60(a)(1)(ii) allowed a State to start the six-month consistency review period even if the applicant had not provided a consistency certification or the necessary data and information. However, now, as described in

Collier,

NOAA has determined that a State could not start the six-month review without the applicant's consistency certification.

See

NOAA's Dismissal Letter in the Consistency Appeal of Collier Resources Company (April 17, 2002). In

Collier,

NOAA determined that:

An applicant's failure to provide a state with a consistency certification cannot divest a state of its authority pursuant to CZMA section 307(c)(3)(A). However, filing a state objection without an underlying consistency certification provided by the applicant is neither a remedy for the applicant's failure to comply with the CZMA, nor a valid exercise of [the State's] own CZMA authorities.

The statutory language and scheme of the CZMA presumes that the applicant has the first opportunity to demonstrate that its activity is consistent with the enforceable policies of the state CMP. Section 307(c)(3)(A) provides in pertinent part: “[a]t the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the applicant's certification.” The NOAA regulations also require a state objection be made in response to the applicant's consistency certification. 15 CFR 930.64. Likewise, consistency cannot be presumed without the receipt of a consistency certification. 16 U.S.C. 1456(c)(3)(A) and 15 CFR 930.63. Finally, NOAA's regulations anticipate that the applicant will have the first opportunity to provide the state with the necessary information and data to demonstrate consistency with the state CMP and that only after the receipt of that information can the state consistency review process begin.

See

15 CFR 930.58.

Given the language and structure of the statute and NOAA's implementing regulations, it is clear that an applicant's consistency certification is essential to a state's Federal consistency review. Therefore, I conclude that a State may not “object” within the meaning of the CZMA, to an application for a federal license or permit when no consistency certification has been submitted. Florida's objection in this case has no effect or is not valid.

A coastal state is not without remedy, however, when a recalcitrant applicant declines to provide the necessary consistency certification. First, both the statute and the regulations make it clear that a Federal agency cannot issue a license or permit until “the state or its designated agency has concurred with the applicant's consistency certification or until by the state's failure to act, the concurrence is conclusively presumed.” 16 U.S.C. 1456(c)(3)(A). In addition, a state may seek enforcement of the CZMA in federal court. Unlike the Secretary of Commerce, the federal courts have the authority to require compliance with federal law through the issuance of mandamus, injunction and other relief.

Optimally, in matters such as this, where an applicant disagrees that its permit or license activity is subject to the provisions of a state CMP can be resolved through the availability of mediation services of NOAA's Office of Ocean and Coastal Resource Management (OCRM), 15 CFR 930.55, or an advisory letter issued by OCRM pursuant to 15 CFR 930.142 (15 CFR 930.3(2001)). While these informal procedures do not carry the weight of a federal court order, they represent the views of the expert agency charged with the implementation of the CZMA. These informal remedies are also more expedient and less costly than the Secretarial appeals process or federal litigation.

While not central to the decision made in

Collier,

NOAA opined in

Collier

that the six-month review period could also only start after receipt of the necessary data and information.

Id.

However, NOAA has determined that a State could, if it wished to, waive the requirement that all necessary data and information be received and start the six-month review upon receipt of a consistency certification, but without the necessary data and information (but could not then later stop the six-month time period without agreement from the applicant). NOAA makes this distinction because, as discussed in

Collier,

a consistency certification is central to the State's jurisdiction and authority under the statute to conduct a consistency review. Allowing necessary data and information to be submitted after the six-month period has begun provides flexibility to the State and applicant.

Various edits to § 930.60 were made from the proposed rule. These edits do not change the meaning of the proposed rule and do not add or remove requirements that were not described in the proposed rule. Some of the changes to this section in the proposed rule were difficult to follow. Therefore, the final rule somewhat reorganizes and restates the requirements described in the proposed rule. The final rule replaces “information” in this section with “necessary data and information” to be clear that the section refers to the necessary data and information described in § 930.58(a), and not to other information the State may want during the six-month review. Also, the final rule uses “review period” as a more accurate description than “timeclock.”

In paragraph (a), the reference to 930.54(e) is removed because there is no exception in § 930.54(e), as changed in the 2000 rule. Paragraph (a)(1) is rewritten to be clear that this paragraph describes the requirement that a certification must be submitted to start the review period. Paragraph (a)(2) more clearly describes the cases where either the necessary data and information was not received or both the consistency certification and the necessary data and information are missing. The last clause in paragraph (a)(2) addresses the scenario where both the certification and the necessary data and information are missing by clarifying that a certification must be submitted, even if the State elects to start the review period without all necessary data and information. The requirements that were in paragraphs (a)(1)(i) and (ii) in the proposed rule are now more clearly described in paragraphs (a)(1) and (2).

The waiver and last statement in paragraph (a)(2) more clearly describes the requirements that were in (a)(1)(ii), allowing the State to choose to start the review period before receiving all necessary data and information. The last sentence in paragraph (a)(3) is needed when the State starts the six-month review period before receiving all necessary data and information (i.e., the “waiver” described in (a)(2)) to make clear that the review period does not start anew when the State receives the missing necessary data and information.

Minor edits were made to paragraph (a)(3), which was (a)(2) in the proposed rule; paragraph (b), which was (a)(3) in the proposed rule; and paragraph (c), which was (b) in the proposed rule.

Rule Change 14:

§ 930.63(d). The cross reference to 930.121(d) is incorrect. There is no 930.121(d). The reference is to 930.121(c). There is no change from the proposed rule.

Rule Change 15:

§ 930.76(a) and (b) Submission of an OCS plan, necessary data and information and consistency certification. These changes address information requirements for OCS plans. The changes provide a more specific list of the information required. Clean Air Act and Clean Water Act permits are not included in NOAA's regulations as these permits are already required to be “described in detail” in OCS plans and are covered under the State's review of the OCS plan.

See

30 CFR 250.203(b)(4), 203(b)(19), 204(b)(8)(ii) and 204(b)(14). Thus, States should review CWA and CAA permit applications concurrently with the OCS plan review. If the CWA and CAA information is not described in detail in an OCS plan, then subpart D applies.

While the status of the completion of NEPA documents is an issue raised by coastal States when performing consistency reviews, NOAA is not adding language requiring that NEPA documents be included as information necessary to start the six-month review period. A requirement that NEPA documents (draft or final) be completed prior to the start of the six-month review period is incompatible with statutory requirements in the OCSLA. 43 U.S.C. 1340(c)(1) and 1351(h). MMS must make its decision whether to approve an EP within 30 days of receipt of the EP. Within that 30-day period, MMS completes its Environmental Assessment (EA). Interior has informed NOAA that, MMS submits the EP and accompanying information to the State within days of receipt of the EP to meet OCSLA requirements and to avoid delay in the CZMA process. The six-month review period starts when the State receives that information. MMS sends the EA to the State when the EA is completed. Since the State receives the EA within a very short period (20-30 days) after the start of the six-month review period, the CZMA process is not delayed unnecessarily.

For DPP's, States can amend their programs, pursuant to 15 CFR 930.58(a)(2), to include draft NEPA documents as data and information necessary to start the six-month review, because there is additional time in the OCSLA process.

See

43 U.S.C. 1351(h) and 30 CFR 250.204(1). States can not amend their programs to require final NEPA documents for OCSLA purposes as part of the necessary data and information because the OCSLA requires MMS to approve or deny a DPP within 60 days after completion of the final EIS. Id. This 60-day OCSLA period does not provide sufficient time for the six-month CZMA consistency review period.

Paragraph (a) is deleted and combined with (b) as (a) is redundant with (b), particularly (1) and (3).

There is a minor correction from the proposed rule. The term “confidential” is added at the of § 930.76(b), because the phrase used throughout the regulations is “confidential and proprietary information.”

Rule Change 16:

§ 930.77(a) Commencement of State agency review and public notice. This change clarifies the time when the State's consistency review period begins for OCS plans. The changes provide additional direction that the State's determination of whether the information provided by the person pursuant to 15 CFR 930.76 is complete, is not a substantive review. Instead, it is a “checklist” review to see if the OCS plan, description of the activity, the coastal effects, the evaluation of the State's enforceable policies, specific information described in the State's federally approved program, and information required by Interior's regulations are included in the submission to the State agency. If the items required by § 930.76 are included, then the six-month review starts. This review does not determine the

substantive adequacy

of the information. The adequacy of the information is a component of the State's substantive review which occurs during the six-month review period.

The changes also clarify that if the State wants to require additional information in addition to that required by § 930.76 for its review of OCS plans, it would have to describe such information in an amendment to its management program, pursuant to § 930.58(a)(2). This is not a new

provision, but was provided in the 1979 rule and restated in the 2000 rule.

This section is changed to address the circumstances where a State believes the information submitted, as required by NOAA's regulations, is insufficient (e.g., either the analysis is substantively inadequate, or that the OCS plan addresses new activities or effects not foreseen and for which information was not provided). In such a case a State may request additional information. The rule change requires that such a request be made within the first three months of the six-month review period. A change is made from the proposed rule such that, if after the three-month period, new activities or coastal effects not previously described and for which information was not provided become part of the OCS plan, then the State may request additional information on the new activities or effects. A request for additional information does not stop, stay or otherwise alter the six-month review period. As discussed in rule change 26, a consistency concurrence is limited to the scope of the activities and effects reviewed by the State.

In addition to the minor substantive change from the proposed rule discussed above, two minor editorial changes were made, with no change in meaning. The first was to add the term “certification” to the first sentence of § 930.77(a)(1) since the proposed language could be incorrectly interpreted to mean that the six-month review period could start with the necessary data and information, but not a certification. The second editorial change is to rewrite the second sentence of § 930.77(a)(2). The original sentence, while referring to the necessary data and information section for OCS plans, 930.76, it is not clear that this is a reference to the need to amend the State's program if the State wants to require additional necessary data and information to start the six-month review period as opposed to a State's request for additional information after the six-month review period has started.

Rule Change 17:

§ 930.82 Amended OCS plans. To be consistent with § 930.76(c), this change clarifies that it is Interior, not the person, that submits the consistency certification and information to the State for amended OCS plans.

There is a minor correction from the proposed rule. The term “confidential” is added at the end of § 930.82, because the phrase used throughout the regulations is “confidential and proprietary information.”

Rule Change 18:

§ 930.85 Failure to substantially comply with an approved OCS plan. While this section existed prior to the 2000 rule revisions, NOAA makes this change to more closely coordinate CZMA and OCSLA requirements. Under NOAA's regulations and the OCSLA program, it is MMS that determines whether a change to an OCS plan is “significant” and thus, whether the change requires CZMA federal consistency review. This determination should be the same for failure to substantially comply with an approved OCS plan. This change would be consistent with CZMA section 307(c)(3)(B), and in fact the language is taken directly from the statute. The previous language was developed in the 1979 regulations as a means of determining when a person has failed to substantially comply. However, CZMA does not provide authorization to NOAA to make such determinations, which should be made by MMS, pursuant to the OCSLA and MMS regulations. Also, to be consistent with § 930.76(c), this change clarifies that it is Interior, not the person, that submits the consistency certification and information to the State for OCS plans.

Three minor changes were made to paragraph (c) from the proposed rule with no change in meaning. Grammar was corrected in the first sentence by reversing “substantially to” to “to substantially” and “comply” was changed to “come into compliance.” A third change was made to the second sentence to acknowledge the applicable process under Interior's regulations.

Rule Change 19:

§ 930.121(c) Alternatives on appeal. This provision was amended in the 2000 rule to address “confusion as to when alternatives may be raised, the consequences of a State agency not providing alternatives or [sic] when it issues its objection, and the level of specificity that the State agency needs to provide to satisfy the element on appeal.” 65 FR 77151 (December 8, 2000). Implementation of this change has prompted NOAA to make several refinements in the language. The word “new” is struck to clarify that all information submitted to the Secretary during the appeal may be considered in determining whether an alternative is reasonable and available. The word “submitted” is substituted for the word “described” to reflect more accurately the manner in which information becomes part of the decision record of an appeal.

The last sentence is added to make clear that the Secretary does not substitute his judgement for that of the State in determining whether an alternative is consistent with the enforceable policies of the State management program. This is not a change in standards or practice, only a clarification. As described in the 2000 rule, both the State and appellant and commenters on the appeal will be able to provide the Secretary with information concerning an alternative. The addition of this sentence, however, makes clear that no alternative, whether submitted to the Secretary by the appellant, the State, a third party, or identified by the Secretary will be considered by the Secretary unless the State submits a written statement that the alternative will allow the activity to be conducted in a manner consistent with the enforceable policies of the management program. Otherwise, the Secretary would be required to make a finding that the alternative is consistent with the management program and effectively substitute the Secretary's judgement for that of the State. The Secretarial appeals process does not review whether the proposed activity is consistent with the State's enforceable policies, but is a

de novo

consideration of whether a proposed activity is consistent with the objectives of the CZMA or otherwise necessary in the interest of national security. Therefore, the Secretary relies on the State to determine whether an alternative would allow the project to proceed in a manner consistent with the enforceable policies of the management program. If a State determines an alternative is consistent with its CMP and the Secretary does not override the State's objection to the proposed activity, then the applicant may pursue the identified alternative approved by the State without further CZMA review by the State.

A minor editorial change with no change in meaning was made from the proposed rule in the beginning of the third sentence.

Rule Change 20:

§ 930.123 Definitions. Section 930.123 previously defined only “appellant” and “Federal agency” for appeal purposes. The Energy Policy Act described three other terms related to CZMA appeals that NOAA will use in subpart H and need to be defined as well. These three terms are “energy project,” “consolidated record,” and “lead Federal permitting agency.” The definition of “energy project” is broad to cover foreseeable energy facilities related to delivery of energy, e.g., electricity transmission, and development of energy resources, e.g., crude oil and natural gas. For example, energy project would include: nuclear power plants; offshore oil and gas exploration, development, and production facilities; natural gas pipelines; Liquefied Natural Gas (LNG) terminals; hydroelectric facilities; wind power facilities; wave and tidal energy

projects; ocean thermal energy conversion projects; where these projects would require a federal authorization under numerous federal statutes such as the Nuclear Energy Act, OCSLA, Natural Gas Act, Federal Power Act, etc.

The Energy Policy Act defined “consolidated record,” and NOAA has adopted that definition in the regulations as the record of all decisions made or actions taken by the lead Federal permitting agency or by another Federal or State administrative agency or officer, maintained by the lead Federal permitting agency, with the cooperation of Federal and State administrative agencies, related to any federal authorization for the permitting, approval or other authorization of an energy project.

The term “lead Federal permitting agency” as used in the Energy Policy Act, is meant to apply to the Federal agency required to issue authorizations under the various energy-related statutes and which would be subject to a federal license or permit under subparts D or I, approval of an OCS plan under subpart E, or federal financial assistance under subparts F or I, of this part for an energy project.

Rule Change 21:

§ 930.125 Notice of appeal and application fee to the Secretary. In order to process an appeal within the time frames required by the Energy Policy Act, as described in § 930.130, changes are made to various sections (§§ 125, 127, 128 129 and 130) to ensure that briefs, information, and public and Federal agency comment periods accommodate a restricted time period for developing the decision record and issuing a decision. These procedures will provide due process and fair opportunity for comment to all parties and the public.

Changes were made from the proposed rule. The changes are meant to further highlight that, given the 160-day deadline to close the decision record, a 60-day limit on a stay of the 160-day period, and a 60-75 day period to issue a decision after the decision record closes, the appellant's notice of appeal must, at least, raise all issues to be addressed. These issues can be further explored in the appellant's brief, but they must at least be raised in the notice of appeal in order to be considered by the Secretary.

NOAA also changed the deadline in paragraph (f) that an appellant must submit the appeal fee if the Secretary denies a fee waiver request from 20 days to 10 days. This change is necessary to meet the new appeal deadlines established by the Energy Policy Act. Otherwise, NOAA would likely have to publish its 30-day notice of the appeal in the

Federal Register

before knowing whether appellant wanted to continue with the appeal.

Rule Change 22:

§ 930.127 Briefs and Supporting Materials. The changes in § 930.127 reflect changes in practice necessary to accommodate the time frames for the closure of the decision record in § 930.130 and to make the administration of the appeals process more efficient and transparent to the public, States and potential appellants. These changes will likely mean that States, appellants, Federal agencies and the public will have to be more diligent in providing thorough and complete information to the Secretary in a shorter amount of time. The changes allow each party and the public, in most cases, only one opportunity to provide their information and arguments to the Secretary. The changes reflect the fact that the Secretary needs only sufficient time and information to make a rational and well-reasoned determination of each of the elements in 15 CFR 930.121 or 930.122.

NOAA has retained the requirement from the proposed rule that the appellant's brief is due within 30 days of the filing of the notice of appeal and the State's brief will be due 60 days after appellant's filing of the notice of appeal. It was necessary to retain these time periods in order to meet the 160-day period established by the Energy Policy Act. In addition, NOAA provided a 20-day period for the appellant to file a reply brief to the State agency's brief. NOAA is including the appellant's reply brief, but not a reply brief from the State agency for the following reasons. It is standard appellate procedure and is predicated on the fact that the State agency's principal brief is a reply to the appellant's principal brief. Since the State agency may raise issues not addressed by appellant, appellant should be able to reply since appellant bears the burden of persuasion on the appeals. Further, NOAA's regulations do provide the Secretary with flexibility to require supplemental briefs if deemed necessary. Therefore, if a State agency wanted to reply to a particular matter raised in appellant's reply brief, it could request that the Secretary authorize such a brief.

NOAA has added new §§ 930.127(b) and (c). In paragraph (b) NOAA establishes page limits for briefs and in (c) a slightly different way for the appellant and State agency to organize the supporting documentation and material. By establishing an “appendix,” as is done for judicial proceedings, the parties and the Secretary would have a common record to cite to. These changes are provided to encourage the appellant and State agency to help the Secretary meet the deadlines established in the Energy Policy Act.

The change to § 930.127(f) would move language from § 930.130(d) regarding the appellant's burden to support its appeal. NOAA has removed language that was in the proposed rule regarding the State's burden of persuasion for alternatives. This is a minor change, since the proposed rule appeared to misstate the Secretary's long-standing practice in accordance with the Secretary's decision in

Korea Drilling Inc.

at 23 (1989) (“If a State describes one or more consistent alternatives in its objection, the burden shifts to the appellant. In order to prevail on Element [three], the appellant must then demonstrate that the alternative(s) is unreasonable or unavailable”). Thus, the State's burden regarding alternatives is described in sections 930.63(d) (describing alternatives with sufficient specificity), and 930.121(c) (determining if the alternative is consistent with the State's enforceable policies).

NOAA also amended paragraph (c)(1) to more clearly describe the content of the decision record and that the Secretary takes notice of the administrative decisions and records of the authorizing Federal agency, when the information is submitted to the Secretary's appeal decision record.

Paragraph (g) is amended to allow the Secretary to extend the time for submission, and length, of briefs and supporting materials for good cause.

NOAA has added paragraph (i) to comply with provisions in the Energy Policy Act specifying the content of the Secretary's decision record for energy projects, including projects requiring an authorization under section 3 or a certificate of public convenience and necessity under section 7 of the Natural Gas Act (15 U.S.C. 717b and 717f). The Energy Policy Act requires that the lead Federal permitting agency, with the cooperation of Federal and State administrative agencies, maintain a consolidated record of all decisions made or actions taken by the lead agency or by another Federal or State administrative agency or officer. The Secretary must use this consolidated record for CZMA appeals. The Secretary may supplement the consolidated record pursuant to CZMA section 319, as amended by the Energy Policy Act and as described in § 930.130(a)(2) of this final rule. The Secretary may require any supplemental information specifically requested by the Secretary to complete a consistency review under

the CZMA, or any clarifying information submitted by a party to the proceeding related to information in the consolidated record compiled by the lead Federal permitting agency.

The intent of the Energy Policy Act and paragraph (i) is to provide a more efficient and less time consuming process to develop a decision record for CZMA appeals. Relying principally on the lead Federal permitting agency's consolidated record should help. NOAA has determined that in order to effectively and efficiently frame and evaluate CZMA arguments needed to decide the grounds for appeal described in § 930.121 for an appeal of an energy project, briefs required in § 930.127(a), (b) and (c) are required. This is consistent with Energy Policy Act requirements for the consolidated record. NOAA recognizes that the Energy Policy Act is a limitation on the Secretary's evidentiary record. NOAA does not believe such limitation includes appeal briefs. The consolidated record is the background materials and comments compiled as part of the lead Federal permitting agency, other Federal and State agency processes, and maintained by the lead Federal permitting agency. The CZMA appeal briefs are needed so appellants and State agencies can use the consolidated record and argue their case before the Secretary; otherwise, parties would not be able to argue their CZMA case. Moreover, the Energy Policy Act clearly expects CZMA appeals to be processed since it describes decision record deadlines. If no briefs were allowed there would be no reason to have any decision record deadlines for energy projects.

Further, in order for the Secretary to have sufficient time within the 160-day decision record period to evaluate the decision record, the appellant must submit the lead Federal permitting agency's consolidated record along with appellant's notice of appeal. NOAA has provided that, notwithstanding § 930.125(e), the Secretary, for good cause shown, may extend the time required for filing a notice of appeal for an energy project to allow appellant time to prepare the consolidated record for filing.

Finally, in keeping with the timeframes mandated by the Energy Policy Act, NOAA will not provide a public or Federal agency comment period for appeals of energy projects. The appellant, State agency, Federal agencies or the public may only submit supplemental materials when the Secretary requests such information after a determination that the information is needed pursuant to § 930.130(a)(2). Therefore, to have their views included in the consolidated record, interested parties should submit comments on energy projects when the lead Federal permitting agency provides such comment periods according to applicable Federal law, and through the State agency's CZMA review, including comments related to the CZMA and potential appeals to the Secretary.

Rule Change 23:

§ 930.128 Public notice, comment period, and public hearing. The changes to § 930.128 would accommodate the 160-day period to develop the decision record in § 930.130. Other changes promote clarity and efficiency in obtaining comments from the public and interested Federal agencies, and in processing the appeal. In addition, NOAA makes explicit the Secretary's practice of giving additional weight to a Federal agency's comments when the comments concern topics within the area(s) of the agency's technical expertise.

Other changes were made from the proposed rule. In paragraph (b), NOAA established a definitive 30-day comment period for both the public and Federal agencies. Pursuant to the requirements of the Energy Policy Act, NOAA will not provide a public or Federal agency comment period for appeals of energy projects. Supplemental public or Federal agency comment during the Secretary's review of an appeal for an energy project may only be provided if the Secretary determines such opportunity for comment is needed pursuant to § 930.130(a)(2). The 30-day comment period will be noticed in the Secretary's Notice of Appeal. This is needed to accommodate the 160-day period to develop the decision record. The Secretary will be able to provide a longer comment period, if necessary, pursuant to § 930.127. Minor edits were made to the last sentence of paragraph (c)(1) to be more precise about comments from Federal agencies. A minor change was made to paragraph (d) changing the time period from 45 days to 30 days for submitting a request for a public hearing. In addition, NOAA clarified that if a public hearing is held, the comment period shall be reopened and public and Federal agency comments must be submitted 10 days after the hearing. These changes will help the Secretary process appeals in a timely manner.

Rule Change 24:

§ 930.129 Dismissal, remand, stay, and procedural override. The additions to 930.129 accommodate the 160-day period to develop the decision record in § 930.130. Two changes were made from the proposed rule. In paragraph (c), NOAA deleted the proposed language regarding “extending” the appeal process. By establishing the new 160-day period for closing the decision record, the Secretary would not “extend” the processing of the appeal beyond the 160 days, but would stay (or “toll” the running of) the 160-day period, pursuant to the stay provisions in 930.130. In paragraph (d) NOAA removed the “20-day” period giving the Secretary more flexibility to determine the time period for remand back to the State during the 160-day period to develop the decision record.

Rule Change 25:

§ 930.130 Closure of the decision record and issuance of decision. NOAA's proposed 270-day period to develop the decision record, and the stays for NEPA and ESA purposes, were superceded by the Energy Policy Act. The provisions in § 930.130 now follow the wording of the Energy Policy Act. The section now provides 160 days as a definitive date by which the Secretary shall close the decision record in appeals filed from State objections under 15 CFR part 930, subparts D, E and F. The Secretary may stay the 160-day period for a period not to exceed 60 days: (1) If the parties mutually agree to stay the 160-day period or, (2) to ensure that the Secretary has any supplemental information specifically requested by the Secretary to complete a consistency review under the CZMA, or any clarifying information submitted by a party to the proceeding related to information in the consolidated record compiled by the lead Federal permitting agency. This could include relevant NEPA and ESA documents, if the Secretary determines that such information is needed to decide the appeal. NOAA continues to emphasize that if NEPA or ESA documents are needed, this does not mean that the Secretary would create NEPA or ESA documents for the appeal. The Secretary would only be seeking NEPA and/or ESA documents required for the Federal agency authorization or funding which is the subject of the appeal. The Secretary's action in deciding a consistency appeal does not require the preparation of environmental analyses pursuant to NEPA and ESA.

Other changes are made to more accurately track the existing statutory language. Minor grammatical edits were made from the proposed rule, with no change in meaning.

Rule Change 26:

§§ 930.46(a)(3), 930.66(a)(3), 930.101(a)(3) Supplemental coordination for proposed activities. The changes to these sections were not in the proposed rule. However, these changes address

the objectives and proposed changes in the proposed rule to improve the clarity of the consistency process related to commencement of the States' review periods and changes to information needs. This change recognizes the fact that if a State concurs or concurrence is presumed, the concurrence is valid only for the activities and effects described by the Federal agency, applicant or applicant agency submitted to the State during the State's review. This change addresses the problem posed by a State concurrence for a project which was substantially changed during the State's review period, but the State was not privy to the change, the change would have coastal effects and the State has enforceable policies applicable to the change or its effects. The rule also reflects the importance of ensuring that the State is provided with timely notice of project changes and related information during the States review periods. This rule change does not apply to subpart E because amended OCS plans are already covered under § 930.82.

V. Comments Received by NOAA on the Proposed Rule

NOAA received 3066 comments on the proposed rule from the House of Representatives, the Senate, States, the Energy Industry, Environmental Groups, Federal agencies, and the public. Most comments strongly oppose any changes to NOAA's rules. NOAA appreciates these comments and understands, and agrees with, the concern that NOAA not “weaken” the federal consistency authority as provided in the CZMA and the 2000 rule. However, NOAA believes that neither the proposed rule nor this final rule affect a State's ability to review federal actions that have coastal effects. In addition, it is NOAA's view that the clarifications and improvements in this final rule do not change the agency's long-standing interpretation of the CZMA. NOAA carefully reviewed each comment in developing this final rule. Below are NOAA's responses to comments on the proposed rule. Comments 1-19 are general comments on the proposed rule. Comments 20-113 are comments on specific sections of NOAA's consistency regulations. A list of commenters by comment will be posted on OCRM's Federal Consistency Web site:

http://coastalmanagement.noaa.gov/czm/federal_consistency.html

.

General Comments

Comment 1.

Overall, we feel that the proposed changes will go far to clarify the confusion which exists in the current regulations.

Comment 2.

We find many of the changes to be worthwhile both in terms of clarity and streamlining the consistency process. In particular we note that many of the proposed changes are intended to speed the appeals process; we recognize the need, for all parties involved, for an efficient and predictable process. We support NOAA's rule modification and guidance to develop an expedited appeals process that is fair and equitable both to States and to applicants.

NOAA Response to Comments 1 and 2.

NOAA notes these comments.

Comment 3.

The proposed changes are inconsistent with, and fail to implement, the CZMA and would substantially weaken the States' abilities to safeguard their coastal resources. For example, the proposed changes would:

—Make it more difficult for a State to obtain the information it needs to evaluate a proposed plan, and impose unrealistic deadlines for State review;

—Reduce the weight given to a State's opinion on the application of consistency to a federal action;

—Potentially exempt major proposals from State review, such as offshore oil and gas development, even though the projects may impact the coastal zone of the affected State;

—Virtually eliminate States from the process of considering appeals from States' objections to CZMA approvals; and

—Overturn recent Federal court decisions upholding States' authority to review certain Federal offshore oil drilling decisions.

Taken together, these changes would essentially strip the coastal States of any meaningful authority to control the ways in which their coastal areas are used. The proposed changes would turn the CZMA into a partnership between the Federal Government and oil and gas interests, to the detriment of coastal States. The proposed rule is a clear attempt to short-circuit procedures designed to ensure State participation in decision-making. The rule changes will strip States of an equal voice in decisions that could have significant adverse effects on local coastal communities and coastal resources. The proposed rules will, if enacted, do irreparable harm to this Federal-State partnership so effectively implemented during the past three decades. Therefore, we strongly urge you to withdraw the proposed rule changes.

Comment 4.

There is no demonstrated need for these rule changes particularly when comprehensive consistency rule changes were approved just over two years ago. To the extent that changes are made, they must be targeted only to address “limited and specific procedural changes or guidance” as called for in the ANPR and as needed to clarify offshore energy activity and siting information needs and deadlines. There is a danger, if not likelihood, that resorting to regulatory changes to “solve” perceived problems or to “clarify” well established language from current regulations will result in creating unforeseen conflicts, confusion, and possibly increase litigation. Ad hoc regulatory changes should be avoided and more resources should be dedicated to developing memoranda of understanding with the States, working with States and assisting agencies and applicants with understanding their consistency responsibilities.

Comment 5.

For many years, this legislative delegation has fought off numerous attempts by government and private industry groups whose planned actions would have caused detrimental effects to the water quality of the Atlantic Ocean, the ocean floor, the air above and our shoreline. New Jersey's tourism industry, as well as our overall environment, would suffer greatly if the Federal Government would allow the oil and gas industries to explore our ocean waters. We share the Federal Government's desire for this great nation to be less dependent on foreign oil, but not at the high price of ocean and coastal water quality. We strongly urge NOAA to withdraw the proposed changes that would expedite the issuance of permits to those who would ravage our ocean waters and shorelines. Reducing the review time which States and local governments have to properly and thoroughly investigate ocean drilling applications would certainly send the wrong signal to citizens of the United States of America, as well as the entire world, that the USA is a rubber-stamp for energy interests, not for its citizens nor its natural beauty.

NOAA Response to Comments 3, 4 and 5.

NOAA concludes that the changes in the final rule do not, in any way, change the authority granted to States to review Federal actions affecting the coastal zone. Neither do the changes short-circuit procedures, reduce the State review period or otherwise diminish the ability of States, or other interested parties, from participating in the Federal consistency process as provided for in NOAA's 2000 rule and the Energy Policy Act. The CZMA State-Federal partnership is strengthened by bringing greater clarity, transparency and predictability to NOAA's CZMA regulations.

In drafting the proposed rule and in issuing this final rule NOAA has carefully sought to avoid upsetting the

long-standing, basic tenets of Federal consistency. State CZMA review authority is, and has always been, centered on a Federal agency activity or Federal license or permit activity having coastal effects. The rule changes steadfastly retain this “effects test”; continues to emphasize early coordination between Federal agencies, applicants and States; maintains the time frames for State review; further emphasizes the ability of States to define information needs specific to their State; does not exempt any Federal action from the “effects test”; does not significantly alter the States' ability to participate in appeals to State objections; and is fully consistent with recent Federal court decisions.

While NOAA completed a comprehensive rulemaking in 2000, NOAA determined that some targeted improvements could be made based on the Energy Report and comments received on the ANPR questions. Some of the improvements addressing these issues, while initiated to respond to energy matters, will improve the consistency process in general, while other changes affect only the OCS subpart of the regulations.

Comment 6.

CZMA section 307(c) has evolved into a program that, in many States, is used to “regulate” Federal activities through the consistency review process.

NOAA Response to Comment 6.

The CZMA does not authorize States to regulate Federal agency activities. States may review Federal agency activities with reasonably foreseeable coastal effects and concur with or object to an activity, but the CZMA does not give the States any regulatory or enforcement authority over Federal agencies.

Comment 7.

NOAA has made some progress in clarifying the ambiguities of the 2000 final rule. However, because of the great degree of latitude given States in interpreting what are reasonable and practicable information needs, Corps project managers are having difficulty meeting navigation project maintenance schedules established by the Congress through the budget process, while complying with coastal zone management programs. The fundamental question for Corps operations and maintenance activities becomes one of how, rather than whether, the project can be accomplished. Often, Federal agencies have little discretion to modify projects re-authorized by the Congress through the annual budget process.

NOAA Response to Comment 7.

The comment demonstrates the need for Federal agencies and States to coordinate as early as possible in the planning of a Federal agency activity. Early coordination and identification of applicable State CMP enforceable policies should help determine what measures, if any, need to be taken so that the activity is consistent with the State policies. If a Federal law provides little discretion to modify a Federal agency activity, then the Federal agency should be better able to demonstrate that it is consistent to the maximum extent practicable.

Comment 8.

We concur with NOAA's changes and explanations for § 930.31(a) (Federal agency activity); § 930.35(d) general negative determination); § 930.51(a) (Federal license or permit); § 930.58(a)(1) (Necessary data and information); and subpart H (Appeals to the Secretary).

NOAA Response to Comment 8.

NOAA notes this comment.

Comment 9.

NOAA should clarify its response to General Comment 3 in the proposed rule regarding Virginia's statement describing information needs related to Virginia's Chesapeake Bay Preservation Act Program.

NOAA Response to Comment 9.

In the proposed rule NOAA informed the State that for Federal license or permit activities under 15 CFR part 930, subpart D, the State could amend its program to require that the detailed maps and delineation of Chesapeake Bay Preservation Areas on non-Federal lands be included as “necessary data and information,” pursuant to 15 CFR 930.58(a)(2). NOAA emphasizes that this is only for Federal license or permit activities and does not apply to required information for Federal agency activities. Thus, a Federal agency could not be required to provide this information to Virginia for a Federal agency activity. For Federal agency activities, a Federal agency is only required to provide the information described in 15 CFR 930.39, necessary to support its consistency determination. Since the CZMA does not grant States authority to regulate activities on Federal lands, there would be no Chesapeake Bay Preservation Areas to delineate on Federal lands located within Virginia.

Comment 10—Geographical Considerations.

The rule does not make any revisions regarding the identification of offshore projects having reasonably foreseeable coastal effects. Considering NOAA's repeated observations that State reviews of OCS projects at distances far from a State's coastline would entail “case-by-case” consideration, API believes it would be inappropriate for NOAA to ever allow a State to amend its program to automatically include such a general geographic area of review. The right of such review, if ever justified by actual “effects,” should be confined instead to a case-by-case consideration under the procedures provided in 15 CFR 930.54 (review of unlisted activities). We urge NOAA and MMS to implement an MOA process whereby objective criteria can be employed to determine what are “reasonably foreseeable effects.”

NOAA Response to Comment 10.

NOAA continues to believe that a regulatory change is not needed to address State review of OCS plans located far offshore. As discussed in the proposed rule, such conflicts are isolated examples and can be dealt with on a case-by-case basis should an issue arise. A new regulatory process to determine when an OCS plan will have reasonably foreseeable coastal effects on a particular State would likely increase administrative and fact-finding burdens on industry, the States and Federal agencies. Finally, the case-by-case nature of Federal consistency review precludes rigid definitions of effects and what is reasonably foreseeable. 65 FR 77130, 2d col. (Dec. 8, 2000).

The determination of coastal effects for Federal license or permit activities is made by NOAA through the listing and geographical location description requirements in NOAA's regulations at 15 CFR 930.53. Each State must list the Federal license or permit activities it believes will affect its coastal uses or resources. The list becomes part of the State's management program development and may be revised through NOAA's program change procedures.

See

15 CFR 930.53(c), and 15 CFR part 923, subpart H. When listing Federal license or permit activities, States must demonstrate whether the activity to be listed would have reasonably foreseeable coastal effects, when conducted inside the coastal zone. Once listed in the State's federally approved program, all applications for the listed Federal authorizations in the coastal zone are automatically subject to the consistency process.

States interested in reviewing activities located outside the coastal zone must provide to NOAA for approval a description of the geographic location outside its coastal zone where activities will be presumed to have coastal effects. Federal agencies and other interested parties may comment to NOAA during the approval process. NOAA's approval is based on whether effects on the coastal zone from the described geographic area are reasonably foreseeable.

A State may also review a listed activity located outside the coastal zone

that is not in a described geographic location as an “unlisted” activity on a case-by-case basis, pursuant to 15 CFR 930.54. NOAA's approval is required and is based on whether coastal effects of the proposed activity are reasonably foreseeable.

The purpose of these listing requirements is to provide predictable procedures to determine when a Federal license or permit activity is subject to CZMA Federal consistency review. These procedures have been in place since 1979 and provide reasonable notice to Federal agencies and applicants for Federal authorizations as to when and how Federal consistency applies.

The geographic location description requirement for Federal license or permit activities has not been used for Federal authorizations described in detail in OCS plans when coastal effects are reasonably foreseeable because these activities are specifically described in the CZMA. 16 U.S.C. 1456(c)(3)(B). In the past, most OCS oil and gas plans were for projects located near shore and coastal effects were readily identifiable. Now, however, technology allows oil and gas projects to be located far offshore and the connection between a project and its effects on a State's coastal uses or resources is less certain. In cases where a person demonstrates that its project will not have coastal effects and the State disagrees, then the question of whether the “effects test” is met can be resolved through the mediation provisions of the CZMA, OCSLA provisions and/or litigation. Of course, this does not preclude the ability of a State to seek NOAA approval to describe an offshore area for OCS plans under § 930.53, or request to review a project as an unlisted activity under § 930.54.

Comment 11—Geographical Considerations.

The rule overlooks the distinction made in the legislative history of the 1990 amendments between Congress's focus on the reversal of the

California

v.

Watt

decision and the expansion of State review of Federal agency activity to include lease sales, and the corresponding recognition by Congress that there would be no change in the status quo for State review of private permitting activity. We continue to take issue with NOAA's reading of the Congressional history of the 1990 amendments and Congress's various “endorsements” of NOAA's consistency policies at that time.

NOAA Response to Comment 11.

NOAA disagrees. The 1990 CZMA amendments apply to all the consistency requirements. The “technical amendments” were to conform all of CZMA section 307 with the changes made to CZMA § 307(c)(1). Moreover, “direct” effects were not a limiting factor to the pre-1990 CZMA application of Federal consistency for Federal license or permit activities—the “effects test” was always the controlling factor. The Conference Report contains authority for NOAA's position, which is also supported by the discussion in the September 26, 1990, Congressional Record, incorporated by reference into the Conference Report.

Comment 12—Geographical Considerations.

Earlier comments to the ANPR also questioned NOAA's revisions to the definition of a “coastal use or resource” within 15 CFR 930.11. NOAA has taken no specific action to remedy this overbroad definition and in the proposal does not acknowledge that adding terms such as “scenic and aesthetic enjoyment” broadens this definition, and thereby inappropriately expands the reach of the effects test.

NOAA Response to Comment 12.

The definition of coastal use or resource did not create new thresholds, but is based on the effects test as described in the CZMA and the Conference Report for the CZMA 1990 amendments.

See

65 FR 77123-77133 (Dec. 8, 2000).

Comment 13—Secretarial Appeal Criteria and Past Secretarial Appeal Decisions.

In the June 11th notice, NOAA comments that the term “development” was used as a “general descriptor for OCS oil and gas activities”, and further, that: “[a]t this time, NOAA cannot foresee a case where OCS oil and gas activities do not further the national interest in a significant or substantial manner, inclusive of the exploration, development and production phases.” While NOAA's comment is a positive statement, its position is still modified by the critical words “[a]t this time,” and remains in marked conflict with the precedential finding in the

Manteo

Secretarial override decisions that an OCS exploration plan targeting a potential natural gas reserve of 5 trillion cubic feet—which would constitute the largest find of domestic hydrocarbons since Prudhoe Bay—would make only a “minimal” contribution to the national interest. Because this inconsistency cannot be reconciled, the particular

Manteo

findings should be formally rescinded by the Secretary of Commerce in order to conform to NOAA's current articulation of CZMA national policy. Although Interior officials were quoted as describing the

Manteo

EP as the

most comprehensive exploration plan

prepared in the history of the U.S. offshore program, the Secretary refused to override based on the State's “lack of information” contentions. This experience seems to belie NOAA's insistence found elsewhere in its June 11th notice that the Secretary has given, and will continue to give, particular deference to comments from agencies with expertise over the activities which are the subject of the override appeals.

NOAA Response to Comment 13.

NOAA maintains that, at this time, it cannot foresee a case where OCS oil and gas activities do not further the national interest in a significant or substantial manner. NOAA cannot, however, say that this will always be the case or will be the case in any particular situation. NOAA can only speak, as a general matter and to the foreseeable future. As for the

Manteo

decision, all Secretarial appeal decisions are made on a case-by-case basis and rely on the record developed for that case. NOAA does not anticipate that the Secretary will reexamine the

Manteo

decision. Further, as discussed in response to comment 100, the Secretary gives the expert Federal agency's view more weight in the areas of its technical expertise than the views of other commenting Federal agencies. NOAA reiterates that each Secretarial decision is based on its individual decision record and evidence in that record may controvert an agency opinion.

Comment 14.

API supports NOAA's acknowledgment of its responsibility under the President's National Energy Policy (NEP) to promote coordination between NOAA and MMS in OCS energy development. We believe, however, that the agency should more fully implement the requirement that the Departments of the Interior and Commerce work together to solve interagency conflicts and develop mechanisms to address differences in the OCSLA and the CZMA. API reiterates that any revisions to the Federal consistency process should incorporate a permanent mechanism for close consultation and coordination between NOAA and MMS such as a formal Memorandum of Agreement (MOA). The MOA could outline the respective responsibilities of the two agencies, institute procedures for ensuring decisions consistent with national energy policy and explain how each agency would meet the objectives of the NEP and Executive Order 13211, on streamlining energy project permitting, (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use, May 18, 2001), and Executive Order 13212 stressing the importance of assessing impacts of government decisions on energy supplies (Actions to

Expedite Energy-Related Projects, May 18, 2001).

NOAA Response to Comment 14.

As described earlier, this rulemaking is designed to address the CZMA recommendations in the Energy Report. Specifically, that report directed the Secretaries of Commerce and Interior to “re-examine the current Federal legal and policy regime (statutes, regulations, and Executive Orders) to determine if changes are needed regarding energy-related activities and the siting of energy facilities in the coastal zone and on the Outer Continental Shelf (OCS).” Energy Report at 5-7. This rulemaking similarly implements Executive Order 13212, which mandates that “agencies shall expedite their review of permits or take other actions as necessary to accelerate the completion of such projects, while maintaining safety, public health, and environmental protections.” NOAA is also coordinating with the President's Council on Environmental Quality on implementation of this Executive Order. Executive Order 13211 requires that agencies prepare and submit a Statement of Energy Effects to the President's Office of Management and Budget for certain actions, and NOAA continues to comply with this requirement when applicable. (Please see the Classification section, below.)

Neither executive order has created a need for a separate MOU with Interior or with other Federal agencies. An MOU is not necessary between MMS and NOAA on CZMA-OCSLA interaction, as the agencies have already established an interagency working group and policy decision group to facilitate interagency coordination concerning the CZMA and OCSLA. NOAA will maintain this effective arrangement.

Comment 15.

We question NOAA's characterizations in its June 11th notice of the widespread success of the CZMA consistency process in the review of OCS activity. NOAA's statements do not make clear that the scope of offshore activity since 1990—and for that matter since the mid-1980s—has been severely curtailed. Indeed, the “offshore statistics” promoted by NOAA have been overwhelmingly generated by activities mainly occurring offshore Texas, Louisiana, Mississippi, and Alabama—four States with combined coastlines barely exceeding seven per cent of the length of the entire coastal shoreline of the continental United States. It cannot be accurately represented that the CZMA consistency review process for OCS activity serves the national interest unless and until that process is realistically employed and tested against offshore activities proposed to be conducted off of the East and West coasts—where, indeed, quite heated consistency battles have occurred in the past. Certainly, there are no “flourishing” OCS operations along coastal North Carolina, Florida, California, or New England.

NOAA Response to Comment 15.

The CZMA requires States to consider the national interest when developing their management programs. When approving State programs and when evaluating proposed changes to State programs NOAA carefully considers elements of management program that may affect the national interest, particularly in energy facility siting. There is a large offshore oil and gas presence in the Gulf, and thus, statistics from MMS are undoubtedly representative of the OCS activities in the Gulf. However, OCS EPs and DPPs have been regularly approved off Alaska and California as well. Even after the Supreme Court's decision in 1984 that OCS lease sales were not subject to Federal consistency review, California found that most of the 150 or so wells associated with the Court's decision were consistent with the State's CMP. In addition, in the limited instances where a State has raised a CZMA objection, the Secretarial appeals process provided an appropriate remedy. Thus, the CZMA

does

support the national energy policy. Moratoria that currently preclude OCS oil and gas exploration in offshore areas are the result of Executive Orders or congressional enactments, and do not result from the CZMA.

Comment 16.

Rule changes should not be based on unseen information. The preamble states that the proposed rule will implement recommendations of the Energy Report prepared by the National Energy Policy Development Group that was established by Vice President Cheney. The process that led to the preparation of the Energy Report often was not a public process and, indeed, the United States Department of Energy still refuses to release many of the documents that were created for and considered by the Task Force. If the recommendations of the Energy Report are to be the basis for the rule amendments, then all documents and records relevant to the Energy Report's preparation and recommendations must be made available to the public as part of the public docket for this rulemaking action and the comment period must be extended to afford members of the public an opportunity to review and comment on this information and evidence. The County is particularly interested in any documents that detail the need for the changes to the NOAA regulations that are now being proposed. For NOAA to proceed without disclosing such documents will be in violation of the Federal Administrative Procedure Act (5 U.S.C. 551

et seq.

).

NOAA Response to Comment 16.

NOAA's rulemaking implements the recommendations stated in the publicly available Energy Report (

http://www.whitehouse.gov/energy/index.html

). The rulemaking is not based on any particular information underlying the Energy Report. NOAA has developed its own administrative record to support this rulemaking. That record includes the ANPR, which asked what changes, if any, should be made in response to the Energy Report recommendations. In addition, the proposed rule sought public comment on NOAA's proposed changes. This final rule is based on public comments to the proposed rule and NOAA's analysis of its administrative record.

Comment 17.

The preamble to the proposed rule says that in certain instances, OCS oil and gas lease sales may not affect the coastal zone, thereby suggesting that there will be a case-by-case review of whether lease sales require a consistency analysis. The County's position is that, given the impacts eventually caused by the development that follows lease sales, it will always be reasonably foreseeable that such lease sales will adversely affect the coastal zone in a manner that will require a consistency review. The development implications of lease sales are far too great to ever support a finding that they would have no adverse impact on the coastal zone.

NOAA Response to Comment 17.

All Federal agency activities are subject to the effects test. The CZMA does not obligate MMS to automatically provide States with a consistency determination for all OCS lease sales, but, rather, requires that MMS determine whether a particular lease sale will have reasonably foreseeable coastal effects. If MMS determines coastal effects are reasonably foreseeable, it must provide the affected State(s) with a consistency determination.

Comment 18.

In

Skokomish Indian Tribe

v.

Fitzsimmons

, 97 Wn. App. 84, 982 P.2d 1179 (1999), the Washington Court of Appeals invalidated the Department of Ecology's “waiver” of its right to object to the City of Tacoma's consistency certification, while simultaneously objecting to the adverse coastal effects of Tacoma's proposed hydroelectric license for the Cushman Dam project. The court held that a State CMZA agency illegally “renders meaningless” the federal and State CZMA regulatory schemes, when it “choose[s] not to follow procedures

prescribed by law to ensure” that federally licensed projects comply with State CZMA laws.

Id

. at 95. The Washington Supreme Court unanimously denied Ecology's petition for review. 143 Wn.2d 1018 (2000). NOAA's proposed rule must incorporate this principle, which (1) is fully consistent with the CZMA, and (2) carries out NOAA's desired effect in its rule change of providing greater “transparency and predictability” to the federal consistency regulations. First, NOAA should amend its rules to clarify that State agencies must either

clearly

concur (through express statement or by complete silence) or object to consistency certifications. Second, the rules must clarify that State CMZA agencies cannot expressly waive their CZMA rights if they have previously raised objections regarding coastal impacts that the proposed license does not address. Third, the rules must expressly acknowledge NOAA's and the federal licensing agency's respective duties to actively inquire into the legality of a State CZMA concurrence or objection that circumvents or contradicts the CZMA's goals and procedures, before the six month window closes. Fourth, the rules must provide an appeal and/or mediation mechanism for the licensing agency, NOAA, and the participating public to challenge illegal State maneuvers.

Comment 19.

NOAA should adopt regulations to provide a mechanism for applicants to invoke NOAA's intervention and effective oversight during consistency review if a State attempts to request information beyond what is specified in NOAA and MMS requirements.

NOAA Response to Comments 18 and 19.

A rule change is not needed to address this issue as the current rules provide sufficient guidance. NOAA agrees that States cannot expressly waive their consistency responsibilities. The State has an obligation to enforce its federally-approved CMP and to provide public input into those decisions. The preamble to the 2000 final rule discussed at length the requirement that States implement their programs and to conduct federal consistency reviews.

See

65 FR 77126-77127 (Dec. 8, 2000). Likewise the 2000 rule discussed the need for States to either concur with or object to a proposed activity for which a State received a consistency certification (or concur with conditions pursuant to § 930.4).

NOAA and the authorizing Federal agency do not, however, have the authority to dictate to a State its interpretation of its own State law. Thus, a new CZMA appeal process cannot be developed to challenge “illegal State maneuvers.” If there is a CZMA procedural issue, any party can raise the issue to NOAA and NOAA may offer its views on the CZMA and its implementing regulations.

See

15 CFR 930.3. The CZMA does not grant NOAA enforcement authority to override a State's decision during the six-month review period. NOAA can require the State to take corrective actions as part of the CZMA section 312 evaluation process and/or the Secretary can override a State's objection on procedural grounds if a State's objection is appealed to the Secretary.

Section Specific Comments

Section 930.3—Review of the Implementation of the Federal Consistency Requirement

Comment 20.

We continue to propose that NOAA should undertake a more active review of State programs than the current three-year rotation undertaken pursuant to 15 CFR 930.3, and specifically suggest that such review should be conducted on a semi-annual basis. NOAA asserts that it does not review the validity of the State's underlying objection in a consistency appeal, but rather in a State program review. NOAA's “de novo” approach to appeals does not include a review of the underlying State's objection should be reevaluated in light of NOAA's statements regarding resource constraints NOAA says it faces in conducting section 312 program reviews. An important oversight function of the statutory scheme is not being effectuated, if the State's manner of carrying out their consistency responsibilities is not undergoing thorough review under section 312, as well as not reviewed as part of the consistency appeal process.

NOAA Response to Comment 20.

As discussed in the proposed rule, the CZMA section 312 evaluation process is the primary means for NOAA to review State programs. When conducting these reviews, NOAA, among other things, evaluates the State's use of federal consistency. As for the Secretarial appeals, the CZMA specifically sets out the criteria for override. In addition, the Secretary reviews State procedural compliance as an aspect of the appeal process,

e.g.

, did the State meet the statutory and regulatory time frames. Additional oversight can be, and often is, provided on a day-to-day basis when a Federal agency, State or applicant bring a specific consistency issue to the attention of NOAA. NOAA may then investigate the matter and either provide its view or seek to mediate an agreement.

Section 930.4—Conditional Concurrences

Comment 21.

The proposed rules do not address the States' use of conditional concurrences. We would like OCRM to clarify in the regulations that conditional concurrences are simply not contemplated under the CZMA.

NOAA Response to Comment 21.

NOAA determined in the 2000 rule that conditional concurrences were allowable under the CZMA within certain parameters. NOAA's regulation, § 930.4, contains adequate standards to ensure State conditions are based on specific enforceable policies. If the requirements for a conditional concurrence are not met within the six-month review period, then the State decision is automatically treated as an objection. For instance, if an applicant does not agree with a condition and does not amend its application to the Federal agency, then the State decision is automatically an objection. Likewise, if a Federal agency finds a condition is contrary to its statutory mandate and refuses to accept the condition, then the State decision is automatically an objection. The benefit is that it allows a State to concur when it might otherwise object. If the conditions are acceptable to the applicant and the Federal agency, then the Federal agency can approve the project. All elements of the conditional concurrence process must be completed prior to the expiration of the State agency's review period. If each element in the conditional concurrence process is not complete prior to the expiration of the State's review period, the conditional concurrence becomes an objection automatically. NOAA's regulations, section 930.4(a)(1-3), set forth each element necessary to make the conditional concurrence effective. First, the State agency must state in its concurrence letter each of the conditions to be met and identify and explain how and why each condition is necessary to satisfy the enforceable policies of the State's CMP. Second, the Federal agency (subpart C) or applicant (subpart D, E, F or I) must change or modify its proposed activity, application or plan to incorporate and satisfy the conditions set forth in the concurrence letter. Third, the Federal agency (subparts D, E, F or I) must approve the

amended

application or amend its approval to include the conditions set forth in the concurrence letter. If these three elements are not satisfied within the State agency's review period, the State's conditional

concurrence letter automatically becomes an objection and the State's concurrence is not presumed pursuant to CZMA section 307(c). Thus there is no delay in the six month review period and there is clear direction regarding time frames, the substance of the conditions and whether the State has objected or concurred.

If a State agency issues a conditional concurrence under subpart D, but there is no response from the applicant and/or the authorizing Federal agency within the six-month review period, then the State's conditional concurrence automatically becomes an objection. If a State agency issues an objection within the six-month review period, then subsequently issues a conditional concurrence, the State's original objection remains in effect and the Federal agency cannot issue its authorization unless the objection is withdrawn by the State agency (or the Secretary, on appeal by the applicant, overrides the State's objection). A conditional concurrence letter issued subsequent to an objection letter after the six-month review period has expired has no effect upon the objection.

For purposes of an appeal to the Secretary pursuant to CZMA section 307(c)(3), an applicant's time to file a notice of appeal (or person's under subpart E or applicant agency's under subpart F) begins under one of the following three scenarios: (1) 30 days after receipt of the State agency's conditional concurrence if the applicant does not agree with the conditions; (2) 30 days after receiving notice from the Federal agency that the application for the approval as amended to meet the State agency's conditions is not approved; or (3) 30 days after the end of the State's six-month review period if neither the applicant nor the Federal agency respond to the conditional concurrence within the six-month review period.

Section 930.11(g)—Definitions—Effect on Any Coastal Use or Resource

Comment 22.

We believe that the proposed change is unusually complicated and therefore oppose it. We suggest that because OCRM proposes to move the definition of “federal action” to § 930.1(b), the use in § 930.11(g) of the previously defined term “federal action” would be sufficient. As drafted, the language is confusing because it appears to use two distinct phrases,

i.e.

“federal action” and “Federal agency activity or federal license or permit activity” to refer to the same thing.

NOAA Response to Comment 22.

Federal agency activity and federal license or permit activity are well-defined terms in the regulations and should pose no confusion. NOAA believes that in this particular section using the more specific terms as opposed to the general “federal action” term is more appropriate.

Section 930.31(a)—Federal Agency Activity

Comment 23.

This section is all-inclusive and could mean “any” Federal agency activity. We do not believe the Congress intended for routine maintenance or other non-consequential activities to be subject to State consistency review. The language as proposed could give States authority to determine colors of paint for Government buildings or where Government employees might park on government property, for example. At subsection 930.51 of the proposed rule OCRM defined certain categories of federal license and permit activities that do not meet the test for requiring consistency determinations. Similar language should be included in this proposed subsection as well.

NOAA Response to Comment 23.

This final rule does not identify categories of federal license or permit activities that are exempt from consistency. NOAA emphasizes, again, that the effects test is the determinative factor. Congress clearly intended for “Federal agency activities” to be interpreted broadly. NOAA did clarify in the proposed rule and in this final rule that a Federal agency activity is a proposal for action that has coastal effects. This is discussed in detail above. This clarification is not a new standard, but emphasizes long-standing agency interpretation.

Comment 24.

The proposed section's recitation of a “plan” as an example of an action requiring a consistency analysis would introduce considerable ambiguity into the interpretation of the regulations. A “plan” can be many things to many people, as can something that “direct[s] Federal agency action.” As a practical matter, any proposal would have to have a certain degree of specificity in order for a meaningful coastal consistency analysis to be undertaken at all. The revised rule's proposed language of “proposal for action which initiates an activity or series of activities * * *” adequately captures those plans that would be ripe for analysis. Accordingly, the planning example should be stricken from the rule as revised. If NOAA believes it is necessary to retain the current language in the rule, the following statement should be added to the preamble discussion of the Navy pier project on page 34855 of the

Federal Register

, following “The Federal agency activity for purposes of 15 CFR 930.31 is the proposal to build the pier.” (add): “Until this activity is sufficiently concrete to require analysis under the National Environmental Policy Act, it is not subject to a consistency determination.”

NOAA Response to Comment 24.

Plans have always been included in the definition of Federal agency activity. The retention of plans as a Federal agency activity does not add ambiguity and the revisions to this section make the application of consistency to plans more clear. As described above in the explanation for the changes to this section, some federal plans will be used to initiate a proposal for action and some federal plans will be part of the Federal agency's pre-decisional deliberations and not be subject to federal consistency. NOAA cannot add the suggested sentence to the preamble since the application of NEPA is not necessarily a trigger for federal consistency. However, NOAA has added the following two sentences to the Navy example in the explanation for rule change 4: “Under 15 CFR 930.36(b), the Federal agency determines when it has sufficient information to provide the State with a consistency determination. For instance, in this example of the Navy pier, the Navy could conclude that under Navy procedures the pier is not a proposed action until the proposed activity requires analysis under NEPA.”

Comment 25.

The proposed changes would narrow the definition of federal activities. The addition of the phrase “makes a proposal for action” is troublesome since it could reduce the type of federal activity which may be subject to review for consistency. In the preamble, NOAA explains that the change is intended to eliminate review of pre-decisional activities such as planning documents. However, the explanation goes on to mischaracterize the recent Ninth Circuit Court of Appeals decision,

State of California

v.

Norton

, 311 F.3d 1162 (9th Cir. 2002), in which the Court embraced a broad definition of federal activities subject to federal consistency review. The change appears to be a thinly veiled attempt to eliminate review of certain activities, such as lease suspensions, in direct contravention of the Ninth Circuit's decision. NOAA characterizes such federal activities as interim or preliminary and thus not rising to the level of a federal activity for purposes of consistency review. The Ninth Circuit expressly rejected the argument that lease suspensions do not grant new rights or authority and are merely ministerial. The Court held that the

lease suspensions are discretionary and their approval involves the exercise of judgment and implicates policy choices. Because the decision to extend leases through the suspension process is discretionary, it does grant new rights to the lessees when, absent the suspensions, all rights would have terminated. (

State of California

v.

Norton

,

supra

, at p. 1173, fn. 6.) The proposed change is also contrary to Congress's express statement in the 1990 amendments in which Congress unequivocally stated its intent to adopt a broad interpretation of federal activity subject to consistency review. NOAA should not undermine Congressional intent by adopting a crabbed interpretation of Federal agency activity.

Comment 26.

NOAA is not required to adopt a decision of the Ninth Circuit (

California

v.

Norton

) and extend such decision nationwide.

NOAA Response to Comments 25 and 26.

On June 20, 2001, the U.S. District Court for Northern California ordered Interior to provide California with a consistency determination pursuant to CZMA section 307(c)(1) for the lease suspensions it issued for 36 leases located offshore California.

California ex rel. Cal. Coastal Comm'n

v.

Norton

, 150 F. Supp.2d 1046 (N.D. Cal. 2001),

aff'd

, 311 F.3d 1162 (9th Cir. 2002). The Court also ordered Interior to provide, pursuant to NEPA, a reasoned explanation for its reliance on a categorical exemption for the lease suspensions. On appeal by the United States, the Ninth Circuit affirmed the District Court's finding that the lease suspensions, in the case of these 36 leases, whether granted or directed by Interior, were Federal agency activities under CZMA section 307(c)(1), and not “federal license or permit activities” under CZMA section 307(c)(3)(A). The Ninth Circuit found that the suspensions allowed the leases to continue for lengthy additional terms and, more importantly, these leases had not been previously reviewed by California under the CZMA. The Court viewed the suspensions as an extension of the leases and thus any suspension of the lease was, in the Court's view, a Federal agency activity under CZMA section 307(c)(1). The Ninth Circuit further found that the lease suspensions at issue would have coastal effects since, among other things, the suspensions required lessees to engage in certain milestone activities which could affect coastal resources. The Ninth Circuit also determined that the effect of the 1990 amendments to the CZMA in overturning the decision of the Supreme Court in

Secretary of the Interior

v.

California

, 464 U.S. 312 (1984), is that lease suspensions are not subsidiary to exploration plans and development and production plans (and thus are not barred from consistency review by CZMA section 307(c)(3)(B)), and that activities with coastal effects preceding exploration plans and development and production plans are subject to consistency review. In making this finding, the Ninth Circuit stated:

In subjecting lease sales to consistency review, Congress has made it clear that the statute [CZMA] does not prohibit consistency review of federal agency activities that are not subsidiary to exploration and development and production plans. The exploration and development and production plan stages are

not

the only opportunities for review afforded to States under the statutory scheme.

Referring to the fact-specific inquiry necessary to determine whether a federal action has coastal effects and, thus, is subject to federal consistency review, the Ninth Circuit, quoting from the preamble to NOAA's 2000 rule, agreed “with the reasoning of the National Oceanic and Atmospheric Administration that a lease suspension or set of lease suspensions might “affect the uses or resources of the State's coastal zone, and thus CZMA bars * * * categorically exempting suspensions from consistency [review.]”

As described above in the explanation of the changes to § 930.31(a), and elsewhere in this preamble, NOAA has not altered the consistency effects test nor has it altered the long-standing application of federal consistency to Federal agency activities. The revisions to the definition in no way narrow or limit the types of Federal agency activities subject to review. The changes more clearly state the long-standing NOAA interpretation of this section: that consistency applies to proposed activities and not to what a Federal agency might be thinking about doing. Likewise, the change does not eliminate planning activities from the “effects test.” Indeed, the preamble to the proposed rule and this final rule clearly state that some planning activities will be used by Federal agencies to propose an action with coastal effects and at other times the planning activities will not, but will be part of an agency's deliberative process to determine whether it will propose an activity. The definition of Federal agency activity articulated by the Ninth Circuit is not affected by these changes.

NOAA's view and the changes in this final rule are consistent with the Ninth Circuit's decision. NOAA is not exempting lease suspensions from consistency review and is not determining whether the lease suspensions at issue in

California

v.

Norton

are subject to consistency review.

The heart of the Ninth Circuit's decision is that lease suspensions cannot be categorically exempt from CZMA review. Applying the CZMA “effects test,” the Ninth Circuit found that the 36 lease suspensions at issue had coastal effects. It is NOAA's view that the Ninth Circuit's coastal effects determination is limited to the 36 leases in that case. NOAA believes that in all other foreseeable instances, lease suspensions would not be subject to federal consistency review since (1) they do not generally authorize activities with coastal effects, and (2) if lease suspensions did result in activities with coastal effects, they should be addressed in a State's consistency review of the lease sale, EP or DPP.

Comment 27.

In its earlier ANPR comments, API pointed out that NOAA's previous remarks treating MMS activities such as five-year leasing plans as potential “Federal agency actions subject to consistency review” were not only inconsistent with CZMA legislative history, but also an incorrect application of the definition of “Federal agency activity.” API notes that NOAA has receded from this position and acknowledges that MMS pre-leasing activity is typically more in the nature of preliminary or interim agency action not considered to have reasonably foreseeable coastal effects. API also notes NOAA's recognition in its June 11th notice that application of the “effects test” for purposes of Federal agency consistency determinations is to be conducted by that particular Federal agency. API supports NOAA's articulation of consistency review policy on this issue. API also supports NOAA's deference to an MMS determination that lease suspensions should be considered “interim activities” having no coastal effects.

NOAA Response to Comment 27.

NOAA has not “receded” from previous and long-standing interpretations of Federal agency activity. NOAA's preamble to the proposed rule reported that Interior informed NOAA that the 5-year leasing plan did not propose an action which would have reasonably foreseeable coastal effects. This is consistent with the long-standing definition of Federal agency activity that the Federal agency determines whether coastal effects are reasonably foreseeable. Regarding lease suspensions

see

response to Comments 25 and 26.

Comment 28.

Without explanation, the proposed revision deletes “exclusion of uses” among listed

examples. We request that you reinstate this example to reflect the full purpose and intent of the CZMA. Conflicts between coastal uses can and do result from some Federal agency activities.

NOAA Response to Comment 28.

If a Federal agency activity proposed an action that would exclude uses of the coastal zone, then that activity would have coastal effects and the Federal agency would be required to provide the affected State with a consistency determination. NOAA did not delete this example, but more broadly captured the concept (exclusion of uses) and other aspects of coastal uses in the revised example that says “a proposed rulemaking that alters uses of the coastal zone.”

Comment 29.

The 5-Year Leasing Program is a poor example and its use in this context unreasonably prejudices California's right to seek a determination of consistency. Five-Year Leasing Programs culminate in a formal decision pursuant to the OCSLA, as to the location, concentration and timing of OCS leasing nationwide that is believed necessary to meet the nation's energy needs. By law, this decision is based upon several factors, explicitly including a determination of coastal effects. Each 5-Year Leasing Program is accompanied by an Environmental Impact Statement, which assesses impacts of different leasing alternatives that affect the distribution and concentration of proposed lease sales around the nation. Additionally, each program is subject to a formal public review and comment process that does not meet the narrow exceptions of “agency deliberations or internal tasks.” Subsequent lease sales provide an opportunity to address the effects on coastal resources from developing only those leases involved in the lease sale. However, the lease sale is not the earliest time where consultation should commence and it occurs too late to consider alternative distributions and concentrations of leasing to best balance the nation's energy needs with protection of coastal resources. Those alternatives were finalized in the 5-Year Leasing Program. Accordingly, Santa Barbara County believes much earlier consultation on issues, which the federal consistency review process is intended to address and resolve through better alternatives, can and should occur during the 5-Year Leasing Program. The 5-Year Leasing Program does initiate a series of actions with reasonably foreseeable coastal effects. If it did not, it would not comply with the requirements of the OCSLA.

NOAA Response to Comment 29.

NOAA agrees that an important objective of federal consistency is to facilitate early State-Federal coordination. Many of the modifications in this final rule are, however, made to clarify when consistency must attach. As pointed out in the comment, MMS' 5-year planning process is mandated by statute and is an initial exploration into whether and where OCS leasing might occur. As such, the 5-year plan looks at numerous issues, but, according to MMS, does not determine which leases may actually be offered for bid. MMS is the agency conducting the activity and NOAA must continue to rely on MMS's determination that the 5-year program does not propose an action with coastal effects. This is consistent with NOAA's statements regarding the 5-year planning process in the preamble to NOAA's 2000 rule.

Section 930.31(d)—Federal Agency Activity

Comment 30.

The primary change proposed in this section is to eliminate the Federal option to treat a proposed general permit as a federal license or permit, rather than as a Federal agency activity. It is not clear whether a Federal agency has ever availed itself of this option or what advantages it might have. The final rule should further explain the significance of this change. In addition, the final rule should clearly affirm that when a State issues a consistency objection to the general permits, or other conditions are imposed on general permits that require case-by-case review, then the applicant must obtain the State's concurrence before relying on the general permit.

NOAA Response to Comment 30.

NOAA's explanation of this change is provided in its explanation for rule change 5. Summarizing that explanation, NOAA removed the option to allow Federal agencies to treat their general permits as a federal license or permit activity for purposes of complying with CZMA § 307 and 15 CFR part 930. A State objection to a consistency determination for the issuance of a general permit alters the form of CZMA compliance required, transforming the general permit into a series of case-by-case CZMA decisions and requiring an individual who wants to use the general permit to submit an individual consistency certification as an “applicant” in compliance with 15 CFR part 930, subpart D.

Comment 31.

We suggest that the phrase “[i]f the State's conditions are not incorporated into the general permit” should be clarified. If the language used by the Federal agency to incorporate the State-proposed condition varies in any way from the State-proposed condition or if other conditions of the federal permit conflict with or override the State-proposed condition, this should cause the general federal permit to be a federal licensing or permitting action and not a Federal agency activity. With such clarification, we do not oppose the proposal.

NOAA Response to Comment 31.

Section 930.4 is clear that State conditions of concurrence for a general permit must be based on enforceable policies and if the conditions are not, to the maximum extent practicable, included in the general permit, then the State has objected and the general permit will not be available to an individual who wants to use the general permit until the individual user has satisfied the requirements of subpart D.

Comment 32.

We have concerns about NOAA's proposed amendments to section 930.31(d) to clarify that if a State objects to a Federal agency's consistency determination for a general permit, all potential users of that general permit would thereafter have to furnish individual consistency certifications for State review. This procedure counters the fundamental purpose of the general permit process. Indeed, NOAA's position conflicts with its own recognition of the nature of the federal approval involved in an MMS lease sale, whereby MMS can with justification proceed to conduct the lease sale even in the face of State consistency objections. NOAA has consistently recognized that individual lessees, in taking their leases from the MMS after such a sale is conducted, would not have to furnish individual consistency certifications.

Comment 33.

A general permit may have adverse impacts on the coastal zone that are only revealed on a case-by-case review. Therefore, while a State may not find a basis to object to a general permit, such as an NPDES permit, the actual application to a particular situation involving sensitive coastal resources may make a consistency review appropriate and necessary. The rule amendments should reflect this possibility.

Comment 34.

Some general permit conditions necessitate case-by-case reviews to verify that the project meets the requirements for coverage.

NOAA Response to Comments 32, 33 and 34.

The purpose of a general permit is to develop conditions of use so as to eliminate individual case-by-case reviews. Thus, if a State concurs with the general permit (including those conditions of use), then the State is not allowed to review case-by-case uses of the general permit. As noted in the explanation to rule change 5, the general

permits are a hybrid between a Federal agency activity and a federal license or permit activity. Thus, NOAA added this section in the 2000 rule requiring that when a State objects to a general permit, even though the general permit is still issued, it is not available for use in that State until an individual who wants to use the general permit provides the State with a consistency certification pursuant to subpart D, and the State concurs or the Secretary overrides a State's objection to the individual consistency certification. There is no conflict with NOAA's regulations. A Federal agency could, pursuant to the consistent to the maximum extent practicable standard, still proceed with issuing a general permit, but individual users could not avail themselves of the general permit if the State objected, until after the requirements of 15 CFR part 930, subpart D are met.

NOAA has modified the proposed language to clarify that it is an individual intending to conduct an activity pursuant to a general per

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