31 TAC §§506.11, 506.12, 506.20, 506.28
The Texas Coastal Coordination Council (Council) adopts amendments
to §506.11(18), relating to Definitions; and §506.28(b), relating
to General Consistency Agreements and Interagency Coordination Groups for
Federal Development Projects.
The Council also adopts amendments to §506.12, relating to Federal
Agency Actions, Federal Agency Activities and Development Projects, and Outer
Continental Shelf Plans Subject to the Coastal Management Program; and §506.20,
relating to Consistency Determinations for Federal Agency Activities and Development
Projects. Specifically, the Council deletes §506.12(a)(1)(F), renumbers §506.12(a)(1)(G)
as §506.12(a)(1)(F), and deletes §506.12(a)(1)(G)(iii), §506.12(b)(1)(A),
and §506.20(d).
The rule amendments are adopted without changes to the text, as published
in the October 17, 2003, issue of the
Texas Register
(28 TexReg 9060). The text will not be republished.
The purposes of the amendments to §506.11(18) are to change the term
"interagency coordination group" to "interagency coordination team," and to
describe, rather than dictate, who typically serves on an interagency coordination
team and its purpose. The reasoned justification for these changes is that
it makes the term consistent with common usage by the Council and the U.S.
Army Corps of Engineers (USACE), which have personnel who participate in and
coordinate interagency coordination teams for federal agency activities and
development projects. Also, the membership of each team is determined by the
sponsoring federal agency, typically the USACE.
The purpose of the amendment of §506.28(b) is to clarify the process
by which the Council will issue consistency agreements for federal agency
activities and development projects for which the federal agency has employed
the use of an interagency coordination team (ICT). The reasoned justification
for the change is that §506.28(b) has been reworded for clarity and to
better define procedures that are acceptable to the Council and to the USACE
when an ICT is used for a project. The ICT process was originally created
to assist the USACE in planning and designing projects so that all environmental
concerns would be fully identified and addressed during planning. To encourage
federal agencies to pursue this type of consensus-based process, the Council
established a streamlined consistency review process for federal development
projects at 31 TAC §506.28(b), wherein the Council members on the ICT
could issue a consistency finding. This procedure is intended to fold the
consistency review process into the overall project assessment and design
process and to ensure that major federal projects are designed to be consistent
with the CMP goals and policies.
Section 506.28(b) is amended to apply to federal agency activities as well
as federal development projects. The reasoned justification is that federal
agencies employ ICTs for both federal agency activities and federal development
projects. By including federal agency activities under this section, the Council
will no longer be in the position of determining whether a federal project
is an activity or a development project, and the Council may employ the procedures
in §506.28(b) for all federal projects where an ICT is used.
Additionally, the term "interagency coordination group" is changed to "interagency
coordination team." The reasoned justification is that this change makes the
term consistent with common usage by the Council and the USACE.
The §506.28(b) amendments also clarify that the "natural resource
agencies" under 506.28(b)(2) include all the Council member agencies. The
reasoned justification is that all Council member agencies should be allowed
to serve on an ICT without the need to determine which would qualify as "natural
resource agencies."
New §506.28(b)(5) has been added to clarify that public comment should
be considered by the Council member agency representatives on the ICT. The
federal agency's consistency determination is considered to be affirmed unless
a majority of the Council member agency representatives on the ICT object
to the federal agency's consistency determination within 15 days after the
close of the public comment period. The reasoned justification for this change
is to comply with the federal consistency procedural requirement that the
Council allow for public comment. Also, the Council member agency representatives
on the ICT are the best qualified to consider the public comment. In order
to facilitate the coordination of the ICT Council member agencies' concurrence
with the federal agency's consistency determination, the rule change assumes
that the Council member agency representatives concur unless they explicitly
object within the 15-day time period.
The purpose of the deletion of §506.12(a)(1)(F) and 506.12(b)(1)(A)
is to remove the listing of the National Marine Fisheries Service's (NMFS's)
promulgation of fishery management measures for the Gulf of Mexico under 16
United States Code §1854 from the list of actions subject to Council
consistency review. The reasoned justification for this change is to comply
with National Oceanic and Atmospheric Administration (NOAA) directives. The
Council listed this federal activity in a rulemaking effective August 27,
2000. However, NOAA has indicated that it would not approve the listing of
federal fishery management measures as an activity subject to Council consistency
review because it would require compliance with the Council's marine fishery
management policies by only the NMFS. According to NOAA, the Council's policies
concerning marine fishery management in 31 TAC §501.14(t) must apply
to both state and federal activities, and the Council has not listed any corresponding
state activity that would be subject to Council consistency review. The Council
has also determined that, at this time, there is little benefit to the state
in reviewing NMFS fishery management measures. Therefore, the Council has
determined that it should delete §506.12(a)(1)(F). The deletion of §506.12(a)(1)(F)
necessitates the renumbering of current subsection (1)(G) as subsection (1)(F).
The purpose of the deletion of §506.20(d) is to remove the procedural
requirement that the Texas Parks and Wildlife Department perform consistency
reviews of fishery management measures for the Gulf of Mexico promulgated
by the National Marine Fisheries Service for the Council. The reasoned justification
for this change is to make it consistent with the deletion of §506.12(a)(1)(F),
which removes the listing of the NMFS's promulgation of fishery management
measures from the list of actions subject to Council consistency review.
The purpose of the repeal of §506.12(a)(1)(G)(iii) is to remove from
the list of actions subject to Council consistency review the natural resource
restoration or mitigation plans developed as a result of enforcement actions
for violations of §10 of the Rivers and Harbors Act or §404 of the
Clean Water Act. The reasoned justification is that NOAA would not approve
the listing of these enforcement restoration or mitigation plans at this time,
without further coordination with the USACE and the United States Department
of Justice. The Council has also found other ways to work with the USACE to
address the concerns that gave rise to this listing.
No comments were received regarding the amendments to this rule.
Pursuant to Texas Government Code §2001.0225, a regulatory analysis
is not required for the proposed rulemaking as a "major environmental rule."
Under the Government Code, a "major environmental rule" is a rule the specific
intent of which is to protect the environment or reduce risks to human health
from environmental exposure and that may adversely affect, in a material way,
the economy, a sector of the economy, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state. A regulatory analysis is required only when a major environmental rule
exceeds a standard set by federal law, exceeds an express requirement of state
law, exceeds a requirement of a delegation agreement or contract between the
state and an agency or representative of the federal government to implement
a state or federal program, or are adopted solely under the general powers
of the Council. The proposed rulemaking will not adversely affect, in a material
way, the economy, a sector of the economy, productivity, competition, jobs,
the environment, or the public health and safety of the state or a sector
of the state. The proposed rulemaking does not exceed a standard set by federal
law, does not exceed an express requirement of state law, does not exceed
a requirement of a delegation agreement or contract between the state and
an agency or representative of the federal government to implement a state
or federal program, and is not adopted solely under the general powers of
the Council.
These amendments are adopted under Texas Natural Resources Code,
Chapter 33, §33.051, which authorizes the Council and the Texas General
Land Office to perform the duties provided in Subchapter C; §33.052,
which authorizes the commissioner to develop a continuing comprehensive CMP; §33.053,
which sets out the elements of the CMP, including a description of the organizational
structure for implementing and administering the CMP; §33.054, which
allows the commissioner to review and amend the CMP; §33.055, which requires
the Council to hold public hearings, as deemed appropriate, to consider amendments
to the CMP; and §33.206(d) which authorizes the Council to adopt procedural
rules for the review of federal actions, activities and outer continental
shelf plans that incorporate provisions of federal regulations governing those
reviews.
Texas Natural Resources Code §§33.051, 33.052, 33.053, 33.054,
33.055, 33.204 and 33.206(d) are affected by this rulemaking.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 8, 2004.
TRD-200400124
Larry Soward
Chief Clerk, General Land Office
Coastal Coordination Council
Effective date: January 28, 2004
Proposal publication date: October 17, 2003
For further information, please call: (512) 305-9129