Final Policy Guidance on Public Participation Under Sec. 306(d)(14) of the Coastal Zone Management Act (CZMA)

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

Final Policy Guidance on Public Participation Under

Sec. 306(d)(14) of the Coastal Zone Management Act (CZMA)

AGENCY: Office of Ocean and Coastal Resource Management (OCRM),

National Ocean Service (NOS), National Oceanic and Atmospheric

Administration (NOAA), Department of Commerce.

ACTION: Issuance of final policy guidance section 306(d)(14) of the

CZMA.

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SUMMARY: The Office of Ocean and Coastal Resource Management is issuing

final policy guidance on section 306(d)(14) of the Coastal Zone

Management Act, which requires that state coastal management programs

provide public participation in permitting decisions, consistency

determinations, and other similar decisions. This final guidance

follows review and consideration of comments of draft guidance issued

in the Federal Register, Vol. 58, No. 212, Nov. 4, 1993, pp 58840-

58841.

DATES: States with approved coastal zone management programs must

comply with this guidance June 13, 1995.

FOR FURTHER INFORMATION CONTACT:

Elaine Vaudreuil at NOAA/NOS/OCRM, 1305 East-West Hwy, N/ORM4, Silver

Spring, MD 20910, by telephone at 301-713-3086, or by FAX at 301-713-

4370.

SUPPLEMENTARY INFORMATION:

I. Authority

This guidance is issued pursuant to the authority of the Coastal

Zone Management Act of 1972, as amended (16 U.S.C. 1451-1464)

II. Background

The following guidance outlines OCRM standards for states and

territories with Federally approved coastal management programs, and

those developing management programs, to meet the public participation

requirement under the Coastal Zone Management Act section 306(d)(14),

as amended by Pub. L. 101-508, the Coastal Zone Act Reauthorization

Amendments of 1990. This section states that before approving a

management program submitted by a coastal state, the Secretary of

Commerce shall find that ``[t]he management program provides for public

participation in permitting processes, consistency determinations, and

other similar decisions.''

The scope of this requirement extends to all activities that

require specific or general authorization through permitting,

consistency review, or other means pursuant to the enforceable policies

of the coastal management program, and applicable state law. This

guidance applies to all state authorizations subject to the statutory

public participation requirement and shall not conflict with existing

state or Federal regulations pertaining to Federal permitting

processes, state permitting processes, and Federal consistency review

of Federally permitted or licensed activities.

NOAA has reviewed public participation opportunities under state

coastal zone management programs and has determined that existing

public participation procedures under state law satisfy the public

participation requirement under section 306(d)(14) for state permits.

For applications under state general permits, public participation in

the review of administrative procedures or regulations allowing for a

general determination of consistency with the Federally approved state

coastal management program will satisfy the public participation

requirement. NOAA's regulations already require public participation in

state Federal consistency reviews of Federally permitted or licensed

activities.

Therefore, NOAA finds that section 306(d)(14) imposes a new

requirement for effective public participation only on the state's

review of Federal agency consistency determinations for direct Federal

activities under section 307(c)(1) of the CZMA and any other state

coastal management decisions not now covered by an existing public

participation procedure.

The following guidance outlines an acceptable standard for

meaningful public participation. State coastal zone management programs

will have one year to comply with this guidance. Within one year, each

state is to: (1) Develop public participation procedures for the review

of direct Federal activities under section 307(c)(1) of the CZMA, if

necessary, and submit a copy of those procedures to OCRM as a program

change or submit documentation that procedures are already incorporated

into the approved program and (2) conduct a review to determine if

other public participation procedures are necessary. If additional

procedures are necessary, the state must submit a copy of the

procedures developed to OCRM as a program change. If no further

procedures are needed, the state must submit to OCRM a notice that a

review has been conducted and that no additional procedures are

necessary.

This guidance is sufficiently broad to give states flexibility in

developing public participation procedures that meet the intent of

section 306(d)(14). OCRM will review each state's procedures during

regularly scheduled evaluations of state coastal zone management

programs under section 312 of the CZMA for compliance with the public

participation requirement under section 306(d)(14), and will recommend

procedural changes if necessary to meet OCRM's guidance.

III. Availability of Comments

All comments received in response to the notice of draft policy

guidance (58 FR 58840, November 4, 1993) are available for inspection

at the Office of Ocean and Coastal Resource Management during normal

business hours (8:00 to 4:30 p.m.) in room 11614, 1305 East-West

Highway, Silver Spring, Maryland, 20910.

IV. Response to Comments

The following comments were received on the draft policy guidance.

NOAA's response appears below:

Comment: The draft language of the Policy Guidance itself does not

clearly specify that the procedures apply only to consistency reviews

under section 307(c)(1) of the CZMA and other state coastal management

decisions not now covered by an existing public participation

procedure, although that fact is stated in the discussion preceding the

guidance.

Response: NOAA concurs and has added specific language in the

guidance to clarify this point.

Comment: Several states expressed concern that implementing this

guidance will add to the state's administrative costs.

Response: NOAA is sensitive to this issue and structured the

guidance to provide coastal states with a range options for

implementing the requirement in a cost-effective manner.

Comment: NOAA should change the language under (a)(1) to say that

``States must issue, or cause to be issued, public notice * * *''.

Response: Recognizing that this comment is consistent with the

provision allowing for joint public notice with Federal agencies, NOAA

has clarified this point in the final guidance.

Comment: The use of the word ``guidance'' coupled with the use of

mandatory terms such as ``must'', ``mandatory'', and ``at a minimum''

may be confusing.

Response: This guidance represents NOAA's interpretation of the

statutory requirement by outlining what it considers to be effective

public public participation. NOAA recognizes that the guidance itself

is not the enforceable policy. Rather, the obligation of coastal states

to comply rests in the language of section 306(d)(14).

V. Guidance to Implement CZMA Section 306(d)(14)

Section 306(d)(14) imposes a new requirement for effective public

participation only on the state's review of Federal agency consistency

determinations for direct Federal activities under section 307(c)(1) of

the CZMA and any other state coastal management decisions not now

covered by an existing public participation procedure. For applications

under state general permits, public participation in the review of

administrative procedures or regulations allowing for a general

determination of consistency will satisfy the public participation

requirement. The public should have an opportunity to comment on a

project's relationship with the state coastal management program's

goals and policies. NOAA interprets the statute to require the

following:

(a) States must provide timely public notice.

(1) States must issue, or cause to be issued, public notice at the

earliest practicable time after the application and/or consistency

determination has been received by the lead state coastal management

agency, except in cases where earlier public notice on the consistency

determinations by the relevant Federal agency meets OCRM's standards

for acceptable public notice listed below.

(2) A public comment period must be provided. The length of the

comment period may vary in accordance with state or Federal law, and as

appropriate for the type of authorization involved. However, the

comment period must be sufficient to give the public a meaningful

opportunity to develop and provide comments.

(b) Public participation, at a minimum, must consist of written

public notice and solicitation of public comments. Provision for a

public hearing or meeting may also be provided. If a state chooses to

use public hearings or public meetings to provide for effective public

participation, such hearings or meetings should be held in a location

accessible to most interested or affected parties to the maximum extent

possible.

The written public notice must:

(1) specify that the proposed activity is subject to review for

consistency uunder the policies of the state coastal management

program;

(2) provide sufficient information to serve as a basis for

meaningful comment;

(3) specify a source for additional information; and

(4) specify a contact for submitting comments to the state coastal

management program.

(c) At a minimum, the public notice must be provided in the area(s)

of the coastal zone likely to be affected by the activity. Procedural

options that may be used include, but are not limited to, the options

listed below.The use of one or more of the following must also conform

with the guidelines set forth in (a) and (b) above.

(1) public notice through an official state gazette;

(2) public notice through a local newspaper serving areas of

coastal zone likely to be affected by the activity;

(3) public notice through individual state mailings;

(4) public notice through a state coastal zone management

newsletter;

(5) arrangements between a state coastal management program and

appropriate Federal agencies for joint public notice to be provided by

the state and Federal agency where direct Federal activities under

section 307(c)(1) are involved OCRM also encourages other streamlined

procedures for providing public participation. Federal agency notice of

a proposed activity would suffice if it meets the guidelines set forth

in (a) and (b) above.

W. Stanley Wilson,

Assistant Administrator for Ocean Services and Coastal Zone Management.

[FR Doc. 94-14221 Filed 6-10-94; 8:45 am]

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