31 TAC §§506.11, 506.13, 506.27, 506.29, 506.35 - 506.37, 506.45, 506.50, 506.52 - 506.54
The Coastal Coordination Council (Council) adopts amendments
to §506.11, relating to Definitions; §506.27, relating to Council
Hearing to Review Federal Agency Activities and Availability of Mediation; §506.35,
relating to General Concurrence; §506.50, relating to Notice to the Council
of Applications for Federal Assistance; and §506.52, relating to Council
Hearing to Review Applications for Federal Assistance. The Council further
adopts new §506.13, relating to Conditional Concurrence; §506.29,
relating to Supplemental Interagency Coordination for Proposed Federal Agency
Activities; §506.36, relating to Supplemental Coordination for Proposed
Federal Agency Actions; §506.37, relating to Remedial Action for Previously
Reviewed Federal Agency Actions; §506.45, relating to Failure to Comply
Substantially with an Approved OCS Plan; §506.53, relating to Supplemental
Coordination for Federal Assistance Activities; and §506.54, relating
to Remedial Action for Previously Reviewed Federal Assistance Activities.
Sections 506.11(14), 506.13, 506.27, 506.29, 506.36, 506.37, 506.45, and 506.54
are adopted with minor grammatical corrections to the text as proposed in
the January 25, 2002, issue of the
Texas Register
(27 TexReg 577). The remaining rules are adopted without changes.
Section 506.11(14) has been changed from the published text to correct
a typographical error. The proposed change from "or" to "of" was misplaced
in the text. The adopted text reads "or removal of a public work." Section
506.13(a) has been changed from the published text to add the word "letter"
in order to clarify the reference to a conditional concurrence letter. Section
501.13(a)(1) has been changed from the published text to correct a grammatical
error without changing the meaning or effect. In addition, the published text
of §506.13(a)(1) and (b) referenced paragraphs (a)(1) through (3) of §506.13
with regard to requirements that must be met by the parties concerning conditional
concurrences. Upon further review, it was determined that paragraph (1) did
not contain any requirements relevant to the parties, only to the Council.
The reference to paragraph (1) was therefore deleted from the text to avoid
confusion regarding those requirements that must be met by the parties. Section
506.27(f) has been changed from the published text. The phrase "to the extent
practicable" has been changed to "to the maximum extent practicable" to correctly
reflect federal laws and regulations and to provide consistency with the remaining
provisions of §506.27. Section 506.27(g)(2) has been rearranged grammatically
for clarification without changing the meaning or effect. Section 506.29(b)
has been changed from the published text, which stated that the "council may
notify the federal agency and the Director of proposed activities that the
council believes should be subject to supplemental coordination." The text
has been changed to utilize a more definitive and appropriate term in order
to avoid confusion regarding the role of the Council. The adopted text states
that the "council may notify the federal agency and the Director of proposed
activities that the council determines should be subject to supplemental coordination."
Section 506.29(b) has also additionally been changed from the published text
by deleting an unnecessary semi-colon. Section 506.36(b) has been changed
from the published text, which stated that the "council may notify the applicant,
the federal agency, and the Director of proposed actions that the council
believes should be subject to supplemental coordination." The text has been
changed to utilize a more definitive and appropriate term in order to avoid
confusion regarding the role of the Council. The adopted text states that
the "council may notify the applicant, the federal agency, and the Director
of proposed actions that the council determines should be subject to supplemental
coordination." Section 506.37 has been changed from the published text. In §506.37(b)(1),
a comma has been moved to correct a grammatical error. Section 506.37(b)(2)
has been rearranged grammatically for clarification without changing the meaning
or effect. Section 506.37(c)(3) has been changed to add the word "the" in
front of "coastal effects." In addition, the phrase "the approved activity"
in §506.37(e) has been changed to "the activity as originally approved"
to clarify that the reference is with regard to initial approval. Section
506.45 has been changed from the proposed text. The phrase "failing substantially
to comply" in §506.45(b) and (d) has been changed to "failing to comply
substantially" in order to be consistent with the wording of §506.45(c).
Finally §506.54(b)(2) has been rearranged grammatically for clarification
without changing the meaning or effect.
The Council adopts these rule amendments and new rules to conform the Council's
rules to recent revisions of the National Oceanic and Atmospheric Administration's
(NOAA's) rules for federal consistency review and to make other minor corrections
and grammatical changes. These amendments and new rules revise existing provisions
of Chapter 506, relating to Council Procedures for Federal Consistency with
Coastal Management Goals and Priorities, incorporate new provisions to implement
new procedures for federal consistency review now allowed under NOAA's revised
rules for federal consistency review, and otherwise amend Chapter 506 to conform
to NOAA's revised rules,
Federal Register
,
Volume 65, Page 77,124, December 8, 2000, codified at Code of Federal Regulations,
Title 15, Part 930. The adopted amendments and new rules will function by
allowing for state implementation of changes to the federal consistency review
process.
The amendments to §506.11, relating to Definitions; §506.27,
relating to Council Hearing to Review Federal Agency Activities and Availability
of Mediation; §506.35, relating to General Concurrence; §506.50,
relating to Notice to the Council of Applications for Federal Assistance;
and §506.52, relating to Council Hearing to Review Applications for Federal
Assistance; and the new §506.13, relating to Conditional Concurrence; §506.29,
relating to Supplemental Interagency Coordination for Proposed Federal Agency
Activities; §506.36, relating to Supplemental Coordination for Proposed
Federal Agency Actions; §506.37, relating to Remedial Action for Previously
Reviewed Federal Agency Actions; §506.45, relating to Failure to Comply
Substantially with an Approved OCS Plan; §506.53, relating to Supplemental
Coordination for Federal Assistance Activities; and §506.54, relating
to Remedial Action for Previously Reviewed Financial Activities, are intended
to incorporate the changes in the recently amended federal regulations, relating
to federal consistency review.
The amendment to §506.11(3) changes the definition of "applicant agency"
to "applicant entity." The amendment to §506.11(12) adds a definition
of "Director" for NOAA's director of the Office of Ocean and Coastal Resource
Management as required to implement the changes to NOAA's federal consistency
regulations and renumbers the subsequent paragraphs accordingly. The amendments
to §506.11(14), §506.11(15), and §506.35 are grammatical and
editorial changes.
New §506.13, relating to Conditional Concurrence provides for conditional
concurrences and establishes the process by which such concurrences are issued.
A conditional concurrence would occur when the Council includes in its concurrence
letter conditions that must be satisfied to ensure consistency with specific
enforceable policies. Conditional concurrences are now allowed by NOAA's revised
federal consistency regulations. Code of Federal Regulations, Title 15, Part
930, Subpart A, §930.4. A conditional concurrence operates as a consistency
objection if the federal agency refuses to accept the Council's conditions;
therefore, a two-thirds vote of the Council members eligible to vote is required
to issue a conditional concurrence, under the Coastal Coordination Act, Texas
Natural Resources Code, §33.206(a). A conditional concurrence, then,
could only be issued by the Council and would not be used as part of routine
consistency reviews conducted by staff.
New §506.29, relating to Supplemental Interagency Coordination for
Proposed Federal Agency Activities, §506.36, relating to Supplemental
Coordination for Proposed Federal Agency Actions, and §506.53, relating
to Supplemental Coordination for Federal Assistance Activities, provide alternate
means of resolving consistency issues that may arise in the period of time
between the Council's consistency determination and actual project implementation
as provided for by NOAA's revised federal consistency regulations in the Code
of Federal Regulations, Title 15, Part 930, Subpart B, §930.46, Subpart
D, §930.66 and Subpart F, §930.101, respectively. The requirement
for supplemental coordination is triggered when a proposed project, that was
previously determined by the Council to be consistent with the Coastal Management
Program (CMP) goals and policies, will adversely affect any coastal use or
resources substantially different than originally described and that effect
was not reasonably foreseeable. Substantially different coastal effects are
reasonably foreseeable if the project is modified in a manner that includes
substantial changes that are relevant to the CMP goals and policies, or if
there are significant new circumstances or information relevant to the proposed
project and the proposed project's effect on any coastal use or resource that
was not available or known when the proposed project was initially reviewed
for consistency with the CMP goals and policies. Supplemental coordination
provides an alternative dispute resolution process that may be used to resolve
consistency issues with a project that arise subsequent to the Council's consistency
concurrence for the project.
Section 506.37, relating to Remedial Action for Previously Reviewed Federal
Agency Actions, and §506.54, relating to Remedial Action for Previously
Reviewed Federal Assistance Activities, are new rules that provide for remedial
actions as allowed under NOAA's revised federal consistency regulations. Code
of Federal Regulations, Title 15, Part 930, Subpart D, §930.65 and Subpart
F, §930.100, respectively. The amendment to §506.27, relating to
Council Hearing to Review Federal Agency Activities and Availability of Mediation
provides for mediation and a request for remedial action when there is a serious
disagreement resulting from a federal agency activity. The Council may request
a remedial consistency action when the Council previously determined that
a proposed project was consistent with the CMP but which the Council later
determines is being conducted or is having a substantially different effect
on any coastal use or resource than originally described and, as a result,
is no longer consistent with the CMP. The Council may also request a remedial
consistency action when the Council previously determined that the proposed
project would not affect any coastal use or resource but which the Council
later determines is being conducted or is having substantially different coastal
effects than originally described and, as a result, the project affects a
coastal use or resource in a manner inconsistent with the CMP. The amendment
to §506.27, relating to Council Hearings to Review Federal Agency Activities
and Availability of Mediation, provides for the availability of mediation
if a serious disagreement continues to exist after a reasonable time period
following a request for remedial action on a previously reviewed federal agency
activity.
New §506.45, relating to Failure to Comply Substantially with an Approved
OCS Plan, provides for coordination with the Minerals Management Service when
a person fails to substantially comply with an approved plan for operations
on the Outer Continental Shelf as allowed under NOAA's revised federal consistency
regulations. Code of Federal Regulations, Title 15, Part 930, Subpart E, §930.85.
The amendment to §506.50(a), relating to Notice to the Council of
Applications for Federal Assistance, is intended to clarify that an applicant
for federal assistance must ensure that an application is submitted to the
Council Secretary. The amendment is intended to clarify that coastal political
subdivisions must submit applications for federal assistance for consistency
review as required by the Coastal Coordination Act and the CMP. Section 506.50(c)
is added to require that an applicant for federal assistance provide a brief
evaluation of the proposed project's consistency with the CMP goals and policies
as required under NOAA's revised federal consistency regulations. Code of
Federal Regulations, Title 15, Part 930, Subpart F, §930.94(c).
The amendment to §506.52, relating to Council Hearing To Review Applications
for Federal Assistance, deletes the stipulation that the consistency review
will concur with the schedule established in the Texas Review and Comment
System (TRACS) regulations, because under these amendments not all applications
for federal assistance will be submitted to the Council for consistency review
through TRACS.
The General Land Office assisted the Council in preparing a takings impact
assessment for this rulemaking pursuant to the Texas Government Code, §2007.043,
and the Private Real Property Rights Preservation Act Guidelines, § 2.18,
published at 21 TexReg 387 (1996) and amended at 25 TexReg 8078 (2000). The
amendments and new sections substantially advance the stated purposes of implementing
the changes to NOAA's federal consistency review regulations and of ensuring
that the Council has the opportunity to adequately review applications for
federal assistance for consistency. The amendments and new sections relate
only to procedures for federal consistency review and do not impose any additional
burdens or restrictions on private real property. Accordingly, the Land Office
has determined that the amendments and new sections will not result in the
taking of private real property. No copies of the takings impact assessment
were requested.
One comment was received on the proposed rules. The U.S. Army Corps of
Engineers, Galveston District (Corps), requested an exclusion from federal
consistency review for environmentally beneficial federal agency activities
and projects that result in the protection, preservation, or restoration of
natural resources of the coastal zone. The Council agrees with the Corps'
objective of facilitating consistency review for environmentally beneficial
federal agency activities. However, the objective may be achieved through
other means, and staff has initiated discussions with the Corps to address
this issue. No change was made in response to this comment.
No other comments were received on the proposed amendments or proposed
new rules.
The amendments and new rules are adopted under Texas Natural
Resources Code, Chapter 33, §33.051, which authorizes the Council to
perform the duties provided in Subchapter C; §33.053, which sets out
the elements of the CMP, including a description of the organizational structure
for implementing and administering 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, 33.053, and §33.206(d)
are affected by this rulemaking.
§506.11.Definitions.
The following words, terms, and phrases, when used in this chapter,
shall have the following meanings, unless the context clearly indicates otherwise.
(1)
Administratively complete--A consistency determination
shall be determined to be administratively complete when the Council has received
the information identified in §506.20 (relating to Consistency Determinations
for Federal Agency Activities and Development Projects), §506.30 (relating
to Consistency Certifications for Federal Agency Actions), and §506.40
(relating to Consistency Certifications for Outer Continental Shelf Plans).
(2)
Applicant--Any individual, public or private corporation,
partnership, association, or other entity organized or existing under the
laws of any state, or any state, regional, or local government that, following
management program approval, files an application for a federal agency action
to conduct an activity affecting the coastal zone.
(3)
Applicant entity--Any agency or subdivision or any related
public entity such as a special purpose district, which, following federal
CMP approval, submits an application for federal assistance.
(4)
Assistant administrator--The assistant administrator for
Coastal Zone Management, National Oceanic and Atmospheric Administration,
United States Department of Commerce.
(5)
Associated facilities--All proposed facilities:
(A)
which are specifically designed, located, constructed,
operated, adapted, or otherwise used, in full or in major part, to meet the
needs of a federal action (e.g., activity, development project, license, permit,
or assistance); and
(B)
without which the federal action, as proposed, could not
be conducted.
(6)
CMP boundary--The CMP boundary established in §503.1
of this title (relating to the Coastal Management Program Boundary).
(7)
Coastal area--The geographic area comprising all the counties
in Texas which have any tidewater shoreline, including that portion of the
bed and water of the Gulf of Mexico within the jurisdiction of the State of
Texas.
(8)
Coastal zone--The portion of the coastal area located within
the boundaries established by the CMP under Texas Natural Resources Code, §33.2053(k),
and described in Chapter 503 of this title (relating to Coastal Management
Program Boundary).
(9)
Consistency certification--The statement submitted by an
applicant for a federal agency action subject to federal consistency review
certifying that the proposed activity requiring the federal agency action
is consistent with the CMP goals and policies.
(10)
Consistency determination--The statement and supporting
documentation submitted by a federal agency undertaking or planning a federal
agency activity subject to federal consistency review certifying that the
federal agency activity is consistent with the CMP goals and policies to the
maximum extent practicable.
(11)
Consistent to the maximum extent practicable--Being fully
consistent with the CMP unless compliance is prohibited based upon the requirements
of existing law.
(12)
Director--Director of the Office of Ocean and Coastal
Resource Management, National Ocean Service, National Oceanic and Atmospheric
Administration.
(13)
Federal agency action--A federal license or permit that
a federal agency may issue that represents the proposed federal authorization,
approval, or certification needed by the applicant to begin an activity. An
action to renew, amend, or modify an existing license or permit shall not
be considered an action subject to the CMP if the action only extends the
time period of the existing authorization without authorizing new or additional
work or activities, would not increase pollutant loads to coastal waters or
result in relocation of a wastewater outfall to a critical area, or is not
otherwise directly relevant to the policies in §501.14 of this title
(relating to Policies for Specific Activities and Coastal Natural Resource
Areas).
(14)
Federal agency activity--A function that is performed
by or for a federal agency in the exercise of its statutory responsibility,
including financial assistance, the planning, construction, modification,
or removal of a public work, facility, or any other structure, and the acquisition,
use, or disposal of land or water resources. The term does not include the
issuance of a federal license or permit.
(15)
Federal assistance--Assistance provided under a federal
program to an applicant entity through grant or contractual arrangements,
loans, subsidies, guarantees, insurance, or other forms of financial aid.
Except as otherwise requested by the applicant entity, council review of federal
assistance for consistency with the CMP goals and policies is limited to federal
programmatic requirements for project level funding. Agency management decisions
such as funding priorities and allocation of funds among various projects
are not subject to review. For purposes of the review procedures in this chapter,
the term includes only the transfer or commitment of funds from the federal
agency directly to an applicant entity.
(16)
Federal development project--A Federal activity involving
the planning, construction, modification, or removal of public works, facilities,
or other structures, and the acquisition, utilization, or disposal of land
or water resources.
(17)
Federal license or permit--Any authorization, certification,
approval, or other form of permission which any federal agency is empowered
to issue to an applicant.
(18)
Interagency coordination group--For purposes of the general
agreement in §506.28 of this title (relating to General Consistency Agreements),
a group established to review proposed federal development projects and whose
duties include, among other things, advising on the consistency determination.
Voting members of the group shall include, at a minimum, representatives of
the local project sponsor and federal and state natural resource and regulatory
agencies with jurisdiction over the project. The group shall seek and promote
broad participation by local governments and coastal citizen groups.
(19)
Outer continental shelf (OCS) plan--A plan for the exploration
or development of, or production from, an area leased under the Outer Continental
Shelf Lands Act (43 United States Code Annotated, §§1331-1356) and
the rules adopted under that Act that is submitted to the secretary of the
United States Department of the Interior after federal approval of the CMP.
(20)
State single point of contact--The state single point
of contact for the Texas Review and Comment System as defined by 1 TAC §5.194
(concerning Definitions).
§506.13.Conditional Concurrence.
(a)
Federal agencies shall cooperate with the council to develop
conditions that, if agreed to during the council's consistency review period,
and included in a federal agency's final decision or approval for activities
identified in §506.12 of this title (relating to Federal Agency Actions,
Federal Agency Activities, Outer Continental Shelf Plans Subject to the Coastal
Management Program), would allow the council to concur with the federal agency's
decision. As an alternative to finding a proposed federal agency action, activity,
or funding assistance inconsistent with the CMP goals and policies, the council
may, by a vote of two-thirds of all members eligible to vote, issue a conditional
concurrence letter as described under this section.
(1)
The council shall include in its concurrence letter the
conditions that must be satisfied, an explanation of why the conditions are
necessary to ensure consistency with specific enforceable policies and an
identification of the specific enforceable policies. The concurrence letter
shall also inform the parties that if the requirements of paragraphs (2) through
(3) of this subsection are not met, then all parties are to treat the conditional
concurrence as a consistency objection. The conditional concurrence letter
shall also notify the parties, pursuant to the Code of Federal Regulations,
Title 15, Part 930, Subpart D, §930.63(c), of the opportunity to appeal
the council's objection to the Secretary of Commerce within 30 days of receipt
of the council's conditional concurrence/objection or 30 days after receiving
notice from the federal agency that the application will not be approved as
amended by the council's conditions; and
(2)
The federal agency, applicant for a federal agency action,
the person submitting an OCS plan, or the entity applying for federal assistance,
as applicable, shall modify the applicable plan, project, proposal or application
to the federal agency in accordance with the council's conditions. The federal
agency, applicant, person, or applicant entity shall immediately notify the
council secretary if the council's conditions are not acceptable; and
(3)
The federal agency shall approve the amended application
with the council's conditions. The federal agency shall immediately notify
the council secretary and the applicant or applicant entity if the federal
agency will not approve the application as amended by the council's conditions.
(b)
If the requirements of subsection (a) paragraphs (2) and
(3) of the section are not met, then all parties shall treat the council's
conditional concurrence as an objection.
§506.27.Council Hearing to Review Federal Agency Activities and Availability of Mediation.
(a)
Following referral of a federal agency activity, the council
shall consider the public comments received, the relevant CMP goals and policies,
information submitted by the federal agency, and other relevant information
and determine whether the activity is consistent with the CMP goals and policies.
(b)
The council secretary shall, by certified mail or hand
delivery, provide notice of the hearing at which the council will review the
federal agency activity to the federal agency.
(c)
If the council decides to disagree with a consistency determination,
the council shall notify the federal agency and the assistant administrator
of its decision to disagree with the consistency determination prior to the
time, including any extensions, that the federal agency is entitled to presume
the activity's consistency under §506.26(e) of this title (relating to
Referral of Federal Agency Activities). An affirmative vote of two-thirds
of the council members is required for the council to disagree with a consistency
determination.
(d)
The council's finding that a proposed activity is inconsistent
with the CMP goals and policies shall include:
(1)
a description of how the proposed activity is inconsistent
with specific CMP goals and policies;
(2)
a description of any available alternative measures that
would permit the proposed activity to be conducted in a manner consistent
to the maximum extent practicable with the CMP; and
(3)
in cases where the council's finding is based upon the
federal agency's failure to supply sufficient information, the council shall
include a description of the nature of the information requested and the necessity
of having such information to determine the consistency of the federal activity
with the CMP.
(e)
If the council finds that a proposed activity is inconsistent
with the CMP goals and policies and the federal agency does not modify the
activity to achieve consistency with the program, the governor, with the assistance
of the chair of the council, may seek secretarial mediation (as provided in
Code of Federal Regulations, Title 15, Part 930, Subpart G, §§930.110
et seq).
(f)
Federal and state agencies shall cooperate in their efforts
to monitor federally approved activities in order to make certain that such
activities continue to be undertaken in a manner consistent to the maximum
extent practicable with the enforceable policies of the CMP.
(g)
The council may request that the federal agency take appropriate
remedial action following a serious disagreement resulting from a federal
agency activity, including those activities where the council's concurrence
was presumed, which was:
(1)
Previously determined to be consistent to the maximum extent
practicable with the CMP goals and policies, but which the council later maintains
is being conducted or is having an effect on any coastal use or resource substantially
different than originally described and, as a result, is no longer consistent
to the maximum extent practicable with the enforceable policies of the CMP;
or
(2)
Previously determined not to be a federal agency activity
affecting any coastal use or resource, but which the council later maintains
is having an effect on any coastal use or resource or is being conducted in
a manner substantially different than originally described, and as a result,
the activity affects any coastal use or resource and is not consistent to
the maximum extent practicable with the enforceable policies of the CMP. The
council's request shall include supporting information and a proposal for
recommended remedial action.
(h)
If, after a reasonable time following a request for remedial
action, the council still maintains that a serious disagreement exists, either
party may request the mediation services of the Secretary of the Interior
or the Office of Ocean and Coastal Resource Management as provided in Code
of Federal Regulations, Title 15, Part 930, Subpart G, §§930.110
et seq.
§506.29.Supplemental Interagency Coordination for Proposed Federal Agency Activities.
(a)
For proposed federal agency activities that were previously
determined by the council to be consistent with the CMP, but which have not
yet begun, federal agencies shall further coordinate with the council and
prepare a supplemental consistency determination if the proposed activity
will affect any coastal use or resources in a manner substantially different
than was reasonably foreseeable when the proposed activity was originally
described. Substantially different coastal effects are reasonably foreseeable
if:
(1)
The federal agency makes substantial changes in the proposed
activity that are relevant to the CMP goals and policies; or
(2)
There are significant new circumstances or information
relevant to the proposed activity and the proposed activity's effect on any
coastal use or resource.
(b)
The council may notify the federal agency and the Director
of proposed activities that the council determines should be subject to supplemental
coordination. The council's notification shall include information supporting
a finding of substantially different coastal effects than originally described
and the relevant CMP goals and policies and may recommend modifications to
the proposed activity (if any) that would allow the federal agency to implement
the proposed activity consistent with the CMP. Council notification under
this subsection does not remove the requirement under subsection (a) of this
section for federal agencies to notify the council when a proposed activity
will affect any coastal use or resource in a manner substantially different
than originally described.
§506.36.Supplemental Coordination for Proposed Federal Agency Actions.
(a)
For proposed federal actions that were previously determined
by the council to be consistent with the CMP, but which have not yet begun,
applicants shall further coordinate with the council and prepare a supplemental
consistency certification if the proposed action will affect any coastal use
or resources in a manner substantially different than was reasonably foreseeable
when the proposed action was originally described. Substantially different
coastal effects are reasonably foreseeable if:
(1)
The applicant makes substantial changes in the proposed
action that are relevant to the CMP goals and policies; or
(2)
There are significant new circumstances or information
relevant to the proposed action and the proposed action's effect on any coastal
use or resource.
(b)
The council may notify the applicant, the federal agency,
and the Director of proposed actions that the council determines should be
subject to supplemental coordination. The council's notification shall include
information supporting a finding of substantially different coastal effects
than originally described and the relevant CMP goals and policies, and may
recommend modifications to the proposed action (if any) that would allow the
applicant to implement the proposed activity consistent with the CMP. Council
notification under this subsection does not remove the requirement under subsection
(a) of this section for applicants to notify the council when a proposed activity
will affect any coastal use or resource in a manner substantially different
than originally described.
§506.37.Remedial Action for Previously Reviewed Federal Agency Actions.
(a)
Federal agencies and the council shall cooperate in their
efforts to monitor federal agency actions in order to make certain that such
actions continue to conform to both federal and state requirements.
(b)
The council shall notify the relevant federal agency representative
for the area involved of any federal agency action which the council claims
was:
(1)
Previously determined to be consistent with the CMP, but
which the council later maintains is being conducted or is having an effect
on any coastal use or resource substantially different than originally described,
and as a result, is no longer consistent with the CMP; or
(2)
Previously determined not to be an action affecting any
coastal use or resource, but which the council later maintains is having coastal
effects or is being conducted in a manner substantially different than originally
described, and as a result, the action affects any coastal use or resource
in a manner inconsistent with the CMP.
(c)
The council notification shall include:
(1)
A description of the implemented activity involved and
the alleged lack of compliance with the CMP;
(2)
supporting information; and
(3)
a request for appropriate remedial action. A copy of the
request shall be sent to the applicant and the Director. Remedial actions
shall be linked to the coastal effects substantially different than originally
described.
(d)
If, after 30 days following a request for remedial action,
the council still maintains that the applicant is failing to comply substantially
with the CMP, the council may file a written objection with the Director.
If the Director finds that the applicant is conducting an activity that is
substantially different from the approved activity, the applicant shall submit
an amended or new consistency certification and supporting information to
the federal agency and to the council, or comply with the originally approved
consistency certification.
(e)
An applicant shall be found to be conducting an activity
substantially different from the activity as originally approved if the council
claims and the Director finds that the activity affects any coastal use or
resource substantially different than originally described by the applicant
and, as a result, the activity is no longer being conducted in a manner consistent
with the CMP goals and policies. The Director may make a finding that an applicant
is conducting an activity substantially different from the approved activity
only after providing 15 days for the applicant and the federal agency to review
the council's objections and to submit comments for the Director's consideration.
§506.45.Failure to Comply Substantially with an Approved OCS Plan.
(a)
The Department of the Interior and the council shall cooperate
in their efforts to monitor federally licensed or permitted activities described
in detail in OCS plans to make certain that such activities continue to conform
to both federal and state requirements.
(b)
If the council claims that a person is failing to comply
substantially with an approved OCS plan subject to the requirements of the
Code of Federal Regulations, Title 15, Part 930, Subpart E, §§930.70
- 930.85, and such failure allegedly involves the conduct of activities affecting
any coastal use or resource in a manner that is not consistent with the CMP,
the council shall transmit its claim to the Minerals Management Service. Such
claim shall include: a description of the specific activity involved and the
alleged lack of compliance with the OCS plan, and a request for appropriate
remedial action. A copy of the claim shall be sent to the person and the Director.
(c)
If, after 30 days following a request for remedial action,
the council still maintains that the person is failing to comply substantially
with the OCS plan, the council may file a written objection with the Director.
If the Director finds that the person is failing to comply substantially with
the OCS plan, the person shall submit an amended or new OCS plan along with
a consistency certification and supporting information to the Secretary of
the Interior or designee and to the council. Following such a finding by the
Director, the person shall comply with the originally approved OCS plan, or
with interim orders issued jointly by the Director and the Minerals Management
Service, pending approval of the amended or new OCS plan. The requirements
of the Code of Federal Regulations, Title 15, Part 930, Subpart E, §930.82
(relating to Amended OCS Plans), §930.83 (relating to Review of Amended
OCS Plans), and §930.84 (relating to Continuing State Agency Objections)
shall apply to further council review of the consistency certification for
the amended or new OCS plan.
(d)
A person shall be found to have failed to comply substantially
with an approved OCS plan if the council claims and the Director finds that
one or more of the activities described in detail in the OCS plan which affects
any coastal use or resource are being conducted or are having an effect on
any coastal use or resource substantially different than originally described
by the person in the OCS plan or accompanying information and, as a result,
the activities are no longer being conducted in a manner consistent with the
CMP. The Director may make a finding that a person has failed to comply substantially
with an approved OCS plan only after providing a reasonable opportunity for
the person and the Secretary of the Interior to review the council's objection
and to submit comments for the Director's consideration.
§506.54.Remedial Action for Previously Reviewed Federal Assistance Activities.
(a)
Federal agencies and the council shall cooperate in their
efforts to monitor federal assistance activities in order to make certain
that such activities continue to conform to both federal and state requirements.
(b)
The council shall notify the relevant federal agency representative
for the area involved of any federal assistance activity which the council
claims was:
(1)
Previously determined to be consistent with the CMP goals
and policies, but which the council later maintains is being conducted or
is having an effect on any coastal use or resource substantially different
than originally described and, as a result, is no longer consistent with the
CMP goals and policies; or
(2)
Previously determined not to be a project affecting any
coastal use or resource, but which the council later maintains is having an
effect on any coastal use or resource or is being conducted in a manner substantially
different than originally described, and as a result, the project affects
a coastal use or resource in a manner inconsistent with the CMP goals and
policies.
(c)
The council notification shall include:
(1)
A description of the activity involved and the alleged
lack of compliance with the CMP goals and policies;
(2)
supporting information; and
(3)
a request for appropriate remedial action. A copy of the
request shall be sent to the applicant agency and the Director.
(d)
If, after 30 days following a request for remedial action,
the council still maintains that the applicant entity is failing to comply
substantially with the CMP goals and policies, the council may file a written
objection with the Director. If the Director finds that the applicant entity
is conducting an activity that is substantially different from the approved
activity, the council may reinitiate its review of the activity, or the applicant
entity may conduct the activity as it was originally approved.
(e)
An applicant entity shall be found to be conducting an
activity substantially different from the approved activity if the council
claims and the Director finds that the activity affects any coastal use or
resource substantially different than originally determined by the council
and, as a result, the activity is no longer being conducted in a manner consistent
with the CMP goals and policies. The Director may make a finding that an applicant
entity is conducting an activity substantially different from the approved
activity only after providing a reasonable opportunity for the applicant entity
and the federal agency to review the council's objection and to submit comments
for the Director's consideration.
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 June 25, 2002.
TRD-200203986
Larry Soward
Chief Clerk, General Land Office
Coastal Coordination Council
Effective date: July 15, 2002
Proposal publication date: January 25, 2002
For further information, please call: (512) 305-9129