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Coastal Zone Management Act Federal Consistency Regulations
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 5, 2006 (Volume 71, Number 3)]
[Rules and Regulations]
[Page 787-831]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja06-8]
[[Page 788]]
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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.
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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
[[Page 789]]
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
[[Page 790]]
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
[[Page 791]]
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 Sec. 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.
[[Page 792]]
IV. Explanation of Proposed Changes to the Federal Consistency Regulations
Rule Change 1: Sec. 930.1(b) and (c) Overall Objectives. This
change moves the parenthetical with the description of ``federal
action'' from Sec. 930.11(g) to the first instance of the term in
Sec. 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 Sec. 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: Sec. 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: Sec. 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
Sec. 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: Sec. 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
[[Page 793]]
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 Sec.
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: Sec. 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 Sec. 307(c)(1) (Federal agency
activity) or CZMA Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. Sec. 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
[[Page 794]]
would only apply to subpart D and E applicants.
Rule Change 6: Sec. 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: Sec. 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
Sec. 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: Sec. 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 Sec. 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 Sec. 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: Sec. 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 Sec.
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.
[[Page 795]]
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: Sec. 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: Sec. 930.58(a)(1) Necessary data and information.
This change provides more specific information requirements for federal
license or permit activities. The purpose of Sec. 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 Sec. 930.58(a)(3).
NOAA removed the clause in Sec. 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 (Sec. 930.58(a)(2)), or to request
additional information during the six-month review period (Sec.
930.60(c)), or to object for lack of information (Sec. 930.63(c)).
There is no change from the proposed rule.
Rule Change 12: Sec. 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 Sec. 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.
[[Page 796]]
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 Sec.
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:
Sec. 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: Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
930.58(a), (2) the applicant has provided the consistency
certification, but not all necessary data and information described in
Sec. 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, Sec. 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.
[[Page 797]]
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 Sec. 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 Sec. 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 Sec. 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: Sec. 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: Sec. 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 Sec. 930.76(b), because the phrase
used throughout the regulations is ``confidential and proprietary
information.''
Rule Change 16: Sec. 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 Sec. 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 Sec. 930.76 for
its review of OCS plans, it would have to describe such information in
an amendment to its management program, pursuant to Sec. 930.58(a)(2).
This is not a new
[[Page 798]]
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 Sec. 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 Sec. 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: Sec. 930.82 Amended OCS plans. To be consistent
with Sec. 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 Sec. 930.82, because the
phrase used throughout the regulations is ``confidential and
proprietary information.''
Rule Change 18: Sec. 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
Sec. 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: Sec. 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: Sec. 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
[[Page 799]]
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: Sec. 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 Sec. 930.130,
changes are made to various sections (Sec. Sec. 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: Sec. 930.127 Briefs and Supporting Materials. The
changes in Sec. 930.127 reflect changes in practice necessary to
accommodate the time frames for the closure of the decision record in
Sec. 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 Sec. Sec. 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 Sec. 930.127(f) would move language from Sec.
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 Sec.
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
[[Page 800]]
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 Sec. 930.121 for an appeal of an energy project, briefs
required in Sec. 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 Sec. 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 Sec. 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: Sec. 930.128 Public notice, comment period, and
public hearing. The changes to Sec. 930.128 would accommodate the 160-
day period to develop the decision record in Sec. 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 Sec. 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 Sec. 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: Sec. 930.129 Dismissal, remand, stay, and
procedural override. The additions to 930.129 accommodate the 160-day
period to develop the decision record in Sec. 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: Sec. 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 Sec. 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: Sec. Sec. 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
[[Page 801]]
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 Sec. 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
[[Page 802]]
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 Sec.
930.31(a) (Federal agency activity); Sec. 930.35(d) general negative
determination); Sec. 930.51(a) (Federal license or permit); Sec.
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
[[Page 803]]
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 Sec. 930.53, or request
to review a project as an unlisted activity under Sec. 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 Sec. 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
[[Page 804]]
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
[[Page 805]]
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 Sec. 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, Sec. 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
[[Page 806]]
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 Sec.
930.1(b), the use in Sec. 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
[[Page 807]]
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 Sec.
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
[[Page 808]]
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 Sec. 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
[[Page 809]]
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
permit who would become an ``applicant'' pursuant to subpart D and must
provide the consistency certification to the objecting State.
Section 930.32--Consistent to the Maximum Extent Practicable
Comment 35. The proposed rule does not address use of the terms
``consistent to the maximum extent practicable'' and ``fully''
consistent. We interpret the latter term to be absolute. The plain
definition of ``fully'' means ``completely.'' We have not found
anywhere in the CZMA or subsequent amendments of 1990 and 1996 where
the Congress explicitly mandates that Federal agencies comply with
every State coastal zone requirement regardless of cost or national
implication. We ask that the OCRM revise the proposed rule to clarify
that budget authority may limit a Federal agency's ability to be fully
consistent.
NOAA Response to Comment 35. The definition of ``consistent to the
maximum extent practicable'' clearly reflects the language and intent
of the CZMA and was not changed in 2000 from its 1979 definition.
NOAA's language was specifically endorsed by Congress in the conference
report to the 1990 CZMA reauthorization and has been upheld by Courts
since then. In addition, NOAA discussed the relationship between
statutory requirements regarding the consistent to the maximum extent
practicable standard and appropriations law at length in the preamble
to the 2000 rule. See 65 FR 77133-77135 (December 8, 2000). The
suggested changes would provide Federal agencies with complete
discretion as to whether their activities would be consistent with a
State's enforceable policies. Such a change would violate the statute
and cause ambiguity in the application of the section.
A recent Federal court decision has addressed NOAA's definition of
``consistent to the maximum extent practicable.'' In California Coastal
Commission v. Dept. of the Navy, 5 F. Supp. 2d. 1106 (S.D. Cal. 1998),
the Navy argued that it complied to the ``maximum extent practicable''
with California's dredging and disposal policies because it was
obligated to follow a modified Sec. 404 permit issued by the Corps.
The court noted that the federal permit was ``not existing Federal
law'' that would excuse compliance with the State policies and
consistency requirements of the CZMA. Id. at 1111. Congress partially
waived the Federal Government's supremacy over State law when it
created the CZMA. As such, the only objective means to determine
``consistent to the maximum extent practicable'' is based on the legal
requirements of Federal agencies and their administrative records. The
2000 rule, in response to requests by Federal agencies, provided clear
guidance as to when a Federal agency can proceed over a State's
objection: Due to an unforeseen circumstance or emergency, or when a
Federal agency asserts, based on its own administrative decision
record, it is fully consistent, or because of the requirements of other
Federal law. NOAA has provided, and will continue to provide, advice to
Federal agencies on how to effectively use the consistent to the
maximum extent practicable standard in connection with their statutes
and individual case-by-case decision records.
Section 930.35(d)--General Negative Determination
Comment 36. NOAA should consider written notification response
requirements for States under Section 930.35(c) similar to that under
Sec. 930.41(a), thereby requiring States to provide written
notification to a Federal agency if a State objects to a negative
determination. Any such State response should also be required to
provide supporting information regarding the State's assertion that
coastal effects are reasonably foreseeable.
NOAA Response to Comment 36. The 14-day response in Sec. 930.41(a)
is merely a completeness notification to the Federal agency. It is not
a substantive response. The substantive response for a consistency
determination is the 60-day period in Sec. 930.41(a). This same 60-day
period is already included in Sec. 930.35(c).
Comment 37. This provision would shift the emphasis away from a
case-by-case consideration of consistency and reasonably foreseeable
coastal effects to deciding what are ``repetitive activities.'' The
proposed change effectively creates a consistency exemption for an
undefined category of ``repetitive activities.'' The proposed rule does
not provide adequate parameters to determine what are ``repetitive
activities,'' and how similar in nature the activity must be for
agencies to avail themselves of this option. There is a concern that
issuing a general negative determination may have the practical effect
of minimizing full consideration of ``cumulative impacts'' that may be
increasingly significant for ongoing activities. Several States also
raised a concern that a general negative determination would
effectively limit public notice and review of these repetitive
activities. There is strong opposition to the lack of adequate
procedural safeguards in this proposed change. Any final rule providing
for a general negative determination must be amended to provide: (1) A
clear definition of what constitutes ``repetitive activities'' and a
requirement that Federal agencies closely monitor activities to assure
that there are no cumulative or unforeseen impacts; (2) In describing
in detail the activity it is not adequate to set out ``expected number
of occurrences over a specified period of time.'' Additional safeguards
must be added to the final rule requiring agencies to provide
sufficient details about when and where the activity would occur, and
requiring that the States and public should be advised in advance of
the actual occurrence and location of such activity to assure that it
is being carried out as originally represented; and (3) Agencies should
not have the option (``may'') of periodically reviewing the general
negative determination. The final rule must provide that Federal
agencies are required (``shall'') to reassess at least every three
years or sooner if deemed necessary by the State or Federal agency.
Comment 38. New Jersey's Coastal Management Program does not object
to the concept, provided that the Federal agency be required to
reassess whether the general negative determination remains applicable
every five years.
Comment 39. We do not oppose the concept of a general negative
determination, and we generally support the proposed rule text. We do,
however, support the concept of a mandatory periodic review of the
[[Page 810]]
general negative determination, but suggest that prior to undertaking
each review the Federal agency should be permitted to request an
affirmative waiver of the review from each affected State. This should
relieve the Federal agency from unnecessary paperwork where there is no
disagreement regarding the effects of the activity.
Comment 40. We recommend that this paragraph include consideration
of situations in which an activity conducted under a general negative
determination actually does have or may have coastal impacts.
Specifically, we suggest that the Federal agency should be required to
immediately discontinue the use of the general negative determination
and conduct a new review of the activities to see whether a general
negative determination or an individual consistency determination is
more appropriate.
NOAA Response to Comments 37, 38, 39, 40. The general negative
determination category does not create an exemption. It can only be
used when a series of Federal agency activities do not have coastal
effects, either direct, indirect or cumulative. The general negative
determination is consistent with the case-by-case analysis embodied in
federal consistency reviews because the general negative determination
covers a single activity which occurs frequently or repetitive
activities related to a single action or project. Likewise, a
definition of ``repetitive'' is not needed; this can be determined on a
case-by-case basis. The new section, along with the rest of the
negative determination section, provides sufficient guidance to Federal
agencies for adequately describing the activity at issue.
Federal agencies should not be required to reassess their negative
determinations within a specific time frame. Currently, Federal
agencies are not required to reassess their consistency determinations,
general consistency determinations or negative determinations.
Therefore, a reassessment every few years should not be required for
general negative determinations. The CZMA does require, of course, that
Federal agencies provide States with a consistency determination if its
activity, subject to a previous negative determination or general
negative determination, later has coastal effects. Such matters would
be covered by the pre-existing sections for previously reviewed Federal
agency activities under Sec. Sec. 930.45 and 930.46. If a Federal
agency finds that activities covered under a general negative
determination are having coastal effects, the Federal agency would be
obligated to provide the affected State(s) with a consistency
determination under Sec. 930.34(a)(1). A State could also notify the
Federal agency if the State later maintains that an activity subject to
a previous negative determination is having coastal effects. If the
Federal agency agreed, the Federal agency would have to conduct the
activity consistent to the maximum extent practicable with the State's
enforceable policies.
Comment 41. We endorse and appreciate NOAA's proposed rulemaking
establishing a general negative determination option for Federal agencies.
NOAA Response to Comment 41. NOAA notes this comment.
Section 930.41(a)--State Agency Response
Comment 42. We support the requirement for States to provide a
written response within 14 days if more information is required
pursuant to 930.39(a). Written responses will alleviate the scheduling
ambiguity that can occur based on informal discussions.
NOAA Response to Comment 42. NOAA agrees that the 14-day
notification will alleviate discrepancies in determining when the 90-
day review period has begun.
Comment 43. We understand the intent of OCRM, but this subsection,
as written, is likely to cause more confusion than clarity. We
recommend that the last full sentence be broken into two separate but
modifying sentences to read as follows: ``Thus, if a Federal agency has
submitted a consistency determination and information required by
930.39(a), then the State agency shall not assert that the 60-day
review period has not begun because the information contained in the
items required by 930.39(a) is substantively deficient. Additionally,
the failure to submit information that is in addition to that required
by 930.39(a) shall not be a basis for asserting that the 60-day review
period has not begun.''
NOAA Response to Comment 43. NOAA agrees that breaking the sentence
into these two sentences is clearer and has done so in the final rule.
Comment 44. Replacing the word ``immediately'' with a 14-day period
is a positive change. This time period is more realistic considering
the workloads of State consistency review staff.
NOAA Response to Comment 44. NOAA notes this comment.
Comment 45. The proposed modifications to the regulation purport to
clarify the provision in the existing regulations that provides that
the time period for a State to review a consistency submittal does not
start until the State receives the necessary data and information.
However, the proposed change eliminates any meaning of this provision
and will allow the time period to begin upon receipt of the submittal
in almost all situations, effectively eliminating the States' ability
to evaluate the content of a consistency submittal before acting on it.
The purpose of this ``clarification'' appears to be removing discretion
from States to seek the information requirements they need to analyze
Federal agency activities. This clarification would render the
information requirements virtually meaningless and contravene their
intent. For example, in many cases, a consistency submittal will
include an analysis of some of the relevant policies, but fail to
consider other relevant provisions of the State's coastal program. The
changes will require the State to initiate the time period for
consistency review despite the fact that the submittal is missing
analysis of important coastal program policies. To date, we have never
received any objections or concerns raised by Federal agencies when we
have asked for additional information necessary to support the agency's
conclusion. Like many of the proposed changes, this change is a
solution in search of a problem. The proposal is unnecessary, erodes
the State authorities, and renders the information requirements
meaningless.
Comment 46. The 14-day period should be 21 or 30 days to assure
that States have adequate time to review more complex proposals. It is
in both the agency and the State's interest that the consistency
determination and supporting information be as complete as possible to
assure expeditious and qualitative review. The final rule should also
clarify that failure of a State to notify the agency of missing
information within 21 or 30 days shall not bar the State from
subsequently seeking necessary information and/or objecting to a
consistency determination for lack of adequate information.
Comment 47. It is anticipated that, with minor clarification, the
proposed 14-day notification to the Federal agency that the 60-day
review has not begun due to insufficient information will not impede
Texas' review process. It is in both the agency and the State's
interest that the consistency determination and supporting information
be as complete as possible to assure expeditious and qualitative
[[Page 811]]
review. However, the final rule should clarify that failure of a State
to notify the agency of missing information within 14 days shall not
prevent the State from subsequently seeking necessary information and/
or objecting to a consistency determination for lack of adequate
information.
NOAA Response to Comments 45, 46, and 47. The State has 60 days
(plus applicable extensions) to issue its consistency concurrence or
objection. The State would not have to issue its concurrence or
objection during the 14-day ``completeness/checklist'' review. The
completeness/checklist review is not the State's substantive review of
the activity, and does not preclude the State from requesting
additional information during the 60-day review period or objecting for
lack of information. Requesting additional information and objecting
based on lack of information are covered by Sec. 930.43(b), which is
not being changed. The completeness/checklist review is merely to
clarify when the 60-day review period begins by determining if the
information required by Sec. 930.39(a) is submitted to the State. This
would not always result in the time period starting on receipt of
whatever the Federal agency provides to the State. Using the
commenter's example, if the Federal agency failed to address applicable
enforceable policies in the State's federally approved CMP in its
consistency determination, then the Federal agency's submission would
not be complete. The State could so notify the Federal agency within
the 14-day completeness/checklist notification period, and the 60-day
review period would not begin until the Federal agency addressed the
enforceable policy. If, on the other hand, the Federal agency submitted
all information required by Sec. 930.39, including an evaluation of
all applicable enforceable policies, then the 60-day review period
began when the State received that information, even if the State
believed that the Federal agency's analysis was not an adequate
evaluation the policies. Otherwise, a State could delay the start of
the consistency review period indefinitely by claiming the Federal
agency's information was not good enough. Such a result would directly
conflict with Congressional intent to balance State needs with federal
interests in efficient and timely decision-making. In addition, to
further clarify, while the State may request additional information
during its 60-day review and may object for lack of information, States
have never had the ability to describe information for Federal agency
activities needed to start the 60-day review period. For Federal agency
activities under CZMA section 307(c)(1), the Federal agency has always
made the initial determination of coastal effects and it is the Federal
agency's decision that it has sufficient information to provide the
State with a consistency determination. See 15 CFR 930.36 and 930.39.
Comment 48. NOAA should ensure that the requirements of Sec.
930.39(a) are clear enough to provide a complete project description
adequate for State review purposes, as well as the information
requirements of the applicants, agencies, and States. NOAA should
clarify the relationship between this section and other sections of the
regulations that provide information requirements (i.e., Sec. 930.58--
necessary data and information, and Sec. 930.60--commencement of State
agency review).
NOAA Response to Comment 48. Section 930.39(a) contains a clear
statement to Federal agencies of the information they must submit with
a consistency determination. There is no relationship between subpart C
and subpart D regarding information needs. Subpart C is for Federal
agency activities and subpart D for federal license or permit
activities. The requirements are distinct because of the different
standards in the statute for determining consistency, i.e., consistent
to the maximum extent practicable for Federal agency activities and
fully consistent for federal license or permit activities. This
distinction allows States flexibility to describe ``necessary data and
information'' for subpart D and E, whereas it does not for subpart C.
Section 930.51(a)--Federal License or Permit
Comment 49. The revisions do not appear to significantly alter the
original intent of the rule. The State does not object to the proposed
rule changes.
Comment 50. We support this change because it will ensure that the
definition of the term ``federal license or permit'' is clearly and
narrowly defined, and will not include activities that have no coastal
effects.
NOAA Response to Comments 49 and 50. NOAA notes these comments.
NOAA also notes, however, that the change in definition did not
``narrow'' the definition, but clarified NOAA's long-standing
interpretation. See also response to comment 51.
Comment 51. We do not understand the decision to delete
``certification, approval, lease, or other form of permission'' and the
definition of ``lease'' from the existing definition of Federal License
or Permit. The proposed deletions do not clarify the definition;
therefore, existing language should be retained. Alternatively, the
definition of ``lease'' could be transferred to 930.11.
NOAA Response to Comment 51. As described in the explanation for
this revision, the change to the rule ensures that the definition of
``federal license or permit'' 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 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 a category of federal authorizations
from federal consistency, but emphasizes that any form of federal
authorization must have the required elements to be considered a
``federal license or permit'' for CZMA purposes. Thus, ``leases'' are
also removed from the rule, but are still a federal authorization if
the four-part test is met.
Section 930.51(e)--Substantially Different Coastal Effects
Comment 52. The proposed change would limit the State's review of
federally licensed or permitted activities where substantially
different effects than those contemplated during consistency review
occur and a new or amended submittal is warranted. Where an activity
was previously approved, the Federal agency (not the State) would
determine whether the effects are substantially different and warrant
State review. Although the State's opinion would be given considerable
weight, it would not be given any deference. NOAA proposes this change
because it considers the Federal agency, rather than the State, to be
the expert on whether a permitted activity is having effects different
than those effects anticipated during review. However, this change
substantially erodes the State's authority and its ability to review
federal license or permit or permit activities which are not proceeding
as originally represented or which are having unexpected effects. It
will likely encourage disagreement and lead to litigation. It is also
contrary to Congress's expressed intent that the federal consistency
process be a joint and equal partnership between the State and Federal
agencies. NOAA states in the preamble that the ``expert permitting
Federal agency'' will make the determination about whether the effects
are substantially different on the State's
[[Page 812]]
coastal zone. The State, rather than the Federal agency, should be
considered the expert on the effects on the State's coastal zone and
whether the effects are substantially different than previously reviewed.
NOAA Response to Comment 52. The change to this section does not
limit a State's ability to review federal license or permit activities.
This change provides a more clear process. This section, added in the
2000 rule, was designed to provide some guidance in determining when a
``renewal'' or ``major amendment'' of a previously reviewed federal
authorization would have substantially different coastal effects, and
thus the renewal or major amendment would be subject to consistency
review. The 2000 language did not establish a decision maker, but
encouraged a joint consultation process to make this determination.
NOAA, as stated in the proposed rule, meant for the State's view to be
accorded considerable weight in making this decision. However, NOAA now
believes that there needs to be finality to this determination,
requiring a decision-maker, and believes that the authorizing Federal
agency is in the best position to make this determination. As provided
for in the new section, the Federal agency must consult with the State
agency and the applicant, give considerable weight to the State
agency's view, and shall broadly construe the effects test to ensure
that States have the opportunity to review activities with coastal
effects not previously reviewed under the CZMA.
Comment 53. Under the proposed regulations, the Minerals Management
Service (MMS) would determine whether a change is significant and would
submit the amended plan to the State. The proposed revisions confuse
the determination that the MMS makes under section 25(i) of the OCSLA
(43 U.S.C. 1351(i)) as to whether or not a proposed modification of a
DPP or other OCS plan is or is not ``significant'' for purposes of the
OSCLA (see 30 CFR 250.204(q)(2)) with the entirely different standard
under sections 930.51(b)(3) and (c) of the CZMA regulations of whether
or not a proposed OCS plan modification will have effects
``substantially different than those originally reviewed by the State
agency.'' Thus, whether or not a proposed modification of a DPP is or
is not ``significant'' for purposes of the OCSLA has little or nothing
to do with the completely separate and distinct determination of
whether or not the modification satisfies the standard of 15 CFR
930.51(b)(3) and (c).
NOAA Response to Comment 53. This comment raises a connection
between determining substantially different coastal effects under Sec.
930.51(e) and amended OCS plans. These sections are not ``entirely
different standards,'' but are complementary. The change to Sec.
930.51(e) creates a more consistent standard with changes to OCS plans
since, pursuant to the OCSLA, MMS determines whether an amended OCS
plan rises to the level where another consistency review is warranted.
Comment 54. We support this improvement because it leaves the
decision making relative to a federally issued license or permit with
the expert Federal agency that initially issued such permit or license.
NOAA Response to Comment 54. NOAA notes this comment.
Section 930.58--Necessary Data and Information
Comment 55. It is important that the current language in subsection
(a)(1)(ii) requiring the applicant to submit information ``sufficient
to support the applicant's consistency certification'' be retained. It
is not necessarily sufficient, as provided in the proposed revisions,
that the applicant ``relied on the information'' or that it was
included in permit application material prepared to determine
compliance with Federal permit requirements. What if the applicant
``relied on'' information that is unrelated to the applicable
enforceable policies or is provided in error to support its consistency
determination? It is important to retain the link between information
provided by the applicant and the standard that it support an
applicant's consistency determination. This reflects an important
objective of the CZMA, which is to assure that agency and applicants
substantively incorporate applicable State policies into their planning
process.
NOAA Response to Comment 55. The necessary data and information
described in the revised rule contains specific and clear requirements
for information needed to start the six-month review process. These
requirements are sufficient to provide for a thorough State review.
Applicants must submit any information relied on in making their
consistency certification to the State. This requirement is intended to
capture all information relevant to the certification, but exclude
information an applicant is not able to obtain or is not relevant to
the applicant's certification for consistency. The requirement for
applicants to consider the State's enforceable policies is not changed
by this rulemaking and can be found at Sec. 930.58(a)(3). Likewise,
the effects analysis that an applicant must submit is still included.
If the State needs information that is in addition to the necessary
data and information required by Sec. 930.58(a) prior to the start of
consistency reviews, then the State must amend its management program
pursuant to Sec. 930.58(a)(2). Once the State's six-month review
begins, the State may make a written request for additional information
pursuant to Sec. 930.63(c), if the State needs the information to
determine consistency with its enforceable policies.
Comment 56. We support the proposed revisions to Sec. 930.58 as
adding specificity to what an applicant is required to provide to
obtain a State's consistency decision in a timely, responsible fashion.
However, we urge NOAA to further amend Sec. 930.58 to clarify that a
Federal agency's NEPA process is separate and distinct from the State's
CZMA process unless the Federal agency, State, and applicant agree to
address consistency requirements in NEPA documentation, and that a
State may not delay processing an applicant's consistency certification
pending completion of the Federal agency's NEPA or other environmental
processes. This change is needed because applicants for FERC
certificates have recently experienced problems and delay in trying to
obtain consistency decisions for proposed projects. In one particular
case, prior to beginning its consistency review, the State required the
applicant to submit: (1) A federal consistency Assessment Form; (2) a
copy of the application(s) along with any supporting documentation
filed with FERC; and (3) a copy of FERC's Draft Environmental Impact
Statement (DEIS). Subsequently, the State informed the applicant that
FERC's DEIS should include a narrative assessment of the effects of the
entire project on, and its consistency with, all of the applicable
State Coastal Policies related to land and water uses, natural
resources, energy development and cultural resources. The State further
stated that its review of the consistency certification would not begin
until after this information was received and it determined whether it
and all other necessary data and information were adequate to address
the effects of the proposal on the coastal zone. At a later date, the
State informed the applicant and FERC that it would not begin its
consistency review of the project until the FEIS had been issued. In
fact, the State did not commence its consistency review until after
FERC issued its FEIS.
Tying a State's commencement of its consistency review to a Federal
agency's
[[Page 813]]
completion of its NEPA review subverts the six-month time frame
provided in the CZMA and harms applicants and Federal agencies in their
efforts to review and approve proposed projects in a timely fashion.
Comment 57. API supports NOAA's general recognition that it would
be impractical to require any NEPA documents in draft or final form to
be included as information necessary to start the six month review
period with regard to OCS plans, considering the OCSLA's explicit
requirements for MMS to make decisions regarding an EP, as well as a
DPP, within shortened time periods. However, the proposal appears
inconsistent to then indicate that a State could nevertheless seek to
amend its CZM program to require its receipt of any draft EIS prepared
in connection with a DPP, in order for its consistency review period to
begin.
NOAA Response to Comments 56 and 57. NOAA agrees that the CZMA and
NEPA processes are separate and that the effects analyses for CZMA and
NEPA are different. NOAA also agrees that, while addressing the
requirements of other Federal statutes in NEPA documents is usually
administratively efficient and encouraged by NEPA, the CZMA does not
authorize States to require that CZMA-related information be included
in the NEPA document. However, while States cannot describe necessary
data and information for Federal agency activities under CZMA section
307(c)(1), States may do so for federal license or permit activities
under CZMA section 307(c)(3). The ability of States to include DEIS's
or FEIS's that are required for a federal license or permit activity as
necessary data and information under Sec. 930.58(a)(2), does not
subvert the two statutes or confuse the separate CZMA and NEPA
processes. The NEPA documents are only being included since they
contain environmental information that the State believes is important
to make its consistency decision. Since the Federal agency cannot make
its decision until the NEPA process is complete, there is little or no
time lost to the applicant.
However, 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 Sec. 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: Sec. 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. See also explanation to rule change 12.
Comment 58. A State delay in commencing, or completing, consistency
review of a project pending an applicant obtaining permits from a
county or other local government agency has the potential to unduly
delay the approval of projects involving coastal issues.
NOAA Response to Comment 58. NOAA's change to Sec. 930.58(a)(2)
removing State permits from necessary data and information addresses
this concern.
Comment 59. It is the States' understanding that the elimination of
``permits'' from the list of necessary data and information will not
limit the State's right subsequently to object to the consistency
determination if an applicant fails to secure necessary permits. The
final rule should expressly affirm this understanding.
Comment 60. We disagree with the proposed deletion of the words
``permit or'' in Sec. 930.58(a)(2). As one of many existing networked
CZM programs, we base our consistency decisions in part, on the receipt
of local or State permits. If a local or State permit exists we need to
know. Asking for this information in a subsequent letter will cause
time delays. Therefore, providing proof of issued local and State
permits is necessary data and information needed to make a timely
consistency decision.
Comment 61. Concurrent submissions with no change in the time
frames of the respective administrative processes will lead to a State
making a decision on the federal consistency application prior to
making a decision on the related State permit, and will result in the
perception, if not the reality, that the State permit has been pre-
judged. This is not likely to be acceptable to the regulated community.
Accordingly, we have identified three alternatives, any of which would
resolve this issue: 1. Federal consistency review should commence only
after the State permit process is complete; 2. Concurrent submissions
would only be acceptable if the timeline for federal consistency review
is significantly extended to be consistent with the time it actually
takes to process State and local permits (anything less than 12-18
months would be unreasonable.); or 3. The rules could be changed to
provide States the ability to issue phased federal consistency
concurrences with the preliminary or conceptual concurrence.
NOAA Response to Comments 59, 60 and 61. As described in the
explanation for rule change 12, elimination of State permits from
necessary data and information is needed to address an untenable
situation where the six-month review process could only begin at the
same time the State determines the activity is consistent by issuing a
State permit. Such a procedure has the potential to defeat the
statutory six-month review requirement. It would also prejudice both
the applicant and the public since it would preclude public comment
during the six-month review if the State has already issued a permit
representing the State process for determining consistency.
Removing State permits from necessary data and information only
affects starting the six-month review period. This change does not
affect the States' ability to require that a State permit (which
contains State enforceable policies) be issued in order to find a
project consistent or object to an activity because the applicant did
not obtain the State permit within the six-month period. This does not
result in ``pre-judging'' the State permit if the permit is not acted
upon within the six-month CZMA review. States may object to the
consistency certification while providing that the objection will
become a concurrence if the State permit is issued.
NOAA cannot extend the federal consistency review period beyond the
statutorily mandated six-month period to accommodate State permit
processes. As suggested by the comment, a State could issue a
``preliminary'' decision within the six-month time frame so long as its
final decision is issued within the same six-month period. A State and
applicant could also agree to stay the six-month period to a date
certain, to allow the State's permit process to be completed. See
discussion of rule change 13, Sec. 930.60, for staying the six-month
review period.
Comment 62. If a proposed federal activity has already received
State or local government permits, applicants should be required to
provide the State with those permits along with the data and
information developed during the review and approval of the State or local
[[Page 814]]
government permit. Therefore, additional language is required to
clarify that the States can request permitting information for projects
that may already be permitted.
NOAA Response to Comment 62. If an applicant received a State
permit prior to the six-month consistency review and the State has
described ``permit applications'' in its program as necessary data and
information pursuant to Sec. 930.58(a)(2), then the applicant would
merely have to provide the State with the previously issued permit to
show it met the information requirement. No change to the rule is
necessary.
Comment 63. API endorses NOAA's attempted clarification of the
definition of a ``federal license or permit'' requiring consistency
review, as well as the deletion of the confusing phrase ``comprehensive
data and information sufficient to support the applicant's consistency
certification'' presently appearing in 15 CFR 930.58(a)(1). API
requests clarification that the protections now afforded in Sec.
930.58(c) to an applicant's confidential and proprietary information
still remain in place if this substituted language is adopted. API
would also suggest that NOAA consider restating the protection found in
subpart (c) of Sec. 930.58 by rephrasing the substituted language in
subpart (a) to read ``any other non-confidential and non-proprietary
language relied upon.''
NOAA Response to Comment 63. Section 930.58(c) was not proposed to
be modified and the protections afforded by paragraph (c) remain in
effect. No re-wording is necessary.
Comment 64. We support the new specific information requirements
because they will make the process predictable and more transparent.
NOAA Response to Comment 64. NOAA notes this comment.
Section 930.60--Commencement of State Agency Review
Comment 65. The States reject the characterization that State
review is merely a ``checklist.'' The information should be adequate to
address applicable State coastal policies, and to ``support the
applicant's consistency determination.'' The final rule should also be
amended to clarify the relation between the timelines established in
subsections (a)(1)(i) and (a)(2). The provisions in (a)(2) provide that
the State agency's consistency review commences on the date that any
missing information was received by the State agency. The language in
(a)(1) should be amended to include a specific cross-reference to the
timeline provided in (a)(2). In addition, the applicant should bear the
responsibility of promptly responding to a State request for missing
information in order to assure that States have adequate time to review
all information. It is not sufficient for the applicant to provide the
information ``during the review period.'' There is also a concern about
the deletion of language requiring that missing information or other
deficiencies be ``corrected'' or ``cured'' by the applicant. There is
some concern that eliminating these requirements could result in
turning the applicant's review from a substantive consideration of
State policies into a ministerial action.
NOAA Response to Comment 65. The completeness/checklist review is
not the State's substantive review of the activity, and does not
preclude the State from requesting additional information during the
six-month review period or objecting for lack of information.
Requesting additional information and objecting based on lack of
information are covered by Sec. 930.63(c), which is not being changed.
The checklist review serves only to clarify the date when the six-month
CZMA federal consistency review period begins by determining whether
the certification and necessary data and information required by Sec.
930.58 has been submitted to the State. Further cross-references are
not needed given the clarifying edits made in the final rule. See
explanation of rule change 13 for a detailed description of the changes
made from the proposed rule. Under (a)(1)(ii) of the proposed rule, a
time period for the applicant to provide missing information is not
needed for two reasons: First, such a time frame would unnecessarily
restrict State flexibility and second, starting the review period
before receipt of all necessary data and information is an option for
the State. It would not then make sense to give the State this option
and then remove that flexibility by specifying by rule a date by which
the missing information must be submitted. If a State is concerned with
getting missing information early in the review period, then it should
only start the review period when the State receives both certification
and all necessary data and information described in Sec. 930.58. It is
not clear why the applicant's review of State enforceable policies
would become a ``ministerial'' review. The deletion of ``deficiencies
must be cured'' in paragraph (a)(1)(ii) is replaced with the
requirement that missing necessary data and information must be
received in paragraphs (a)(2) and (3). This change provides direction
that the missing information must be submitted and received by the State.
Comment 66. Proposed paragraph (a)(2) specifies the State's
responsibility of notifying the applicant of the receipt of the
necessary data and information. According to the new language, the date
the information previously deemed missing is received by the State is
the date the State's review begins. Thus, the proposed language at
(a)(2) contradicts that of (a)(1)(ii).
Comment 67. The term ``information'' in subsection (a)(1)(i) must
be read as something different than ``necessary information and data''
in subsection (ii). After all, subsection (i) specifically says that
the clock does not start if the State does not receive the
``certification or information * * *.'' However, this interpretation is
incongruous with subsection (ii) which appears to use the term
``information'' as a short form for ``necessary information and data.''
Further, subsection (2) specifically contemplates that the clock will
not start if the State has not received the ``necessary data and
information.'' The only harmonious reading of this rule is that
subsection (ii) is completely optional. That is, if the State has
received the certification but not all of the necessary data and
information, the State may elect to start the clock anyway and await
the information. We believe that having this option removes certainty
from the process and would be exercised extraordinarily infrequently if
at all. The passage should be redrafted to indicate plainly that the
clock does not start until the State receives all necessary data and
information required pursuant to Sec. 930.58.
NOAA Response to Comments 66 and 67. Paragraph (a)(2) does not
contradict (a)(1)(ii) in the proposed rule. However, this has been
clarified in the re-edited final rule to recognize that the State has
chosen to start the six-month review period without all of the
necessary data and information. See explanation for rule change 13 for
a detailed description of the requirements.
Comment 68. It is unclear why ``or extend the six-month review
period'' in the first line is proposed for deletion. It seems that
``staying the consistency time clock'' is not the same as extending the
review period. The former means ``stopping the time clock'' which
presumably re-starts at the agreed upon time or action while the latter
is not keyed to the time clock and, thus, it provides additional
flexibility and could be beneficial to either the Federal agency or the
State agency or, in many instances, both. Provided any alteration of
the time frame is agreed to in writing by State agencies and
applicants, the
[[Page 815]]
regulations should continue to provide for this flexibility.
NOAA Response to Comment 68. The statute is explicit that there is
a six-month period for the State to conduct its review. The statute
does not provide the flexibility to extend the six-month review period
for federal license or permit activities. Rather, the statute provides
that if the State has not objected prior to the expiration of the six-
month review period, the State's concurrence with the consistency
certification is presumed. As such, staying or ``tolling'' the time
clock is allowable as it does not extend the six-month review period.
The six-month review period is tolled until a specific date after which
the remainder of the six-month review period continues.
Comment 69. The proposed language for this section references
``documents required by section 930.58.'' However, that section does
not specify documents that must be submitted, but rather identifies the
information that must be provided. The proposed language should be
corrected.
NOAA Response to Comment 69. NOAA agrees that the language should
be consistent and has made this change.
Comment 70. In order for a State to require additional information
for its review process, NOAA suggests a State must amend its State
management program and have the amendment approved by NOAA. The County
believes the proposal is far too structured and formal a requirement
for the States to fulfill for the simple purpose of obtaining the
information necessary to review proposed projects. In particular, the
County notes that NOAA has not processed many amendments to State
approved management programs, nor is NOAA committing to provide the
resources necessary to process such amendments. Further, the
information needs of the States to review proposed Federal licenses and
permits is often driven by developing environmental studies about the
character and nature of the coastal environment. Requiring the States
to request and NOAA to approve formal amendments to the approved State
management plan every time additional informational needs are
identified will undercut the effectiveness of the review process by the
States. It will actually lengthen the review process as States seek
time extensions to obtain needed information to review activities for
consistency with coastal management programs. Further, the requirement
is unnecessary and, therefore, should not be imposed.
Comment 71. We support these changes because under the current
regulations, there is significant uncertainty in determining when the
six-month federal consistency review process commences because the
States are free to deem an application incomplete as they seek
additional data after the application is filed. This delays the running
of the time clock. Under the proposed rule, the States would continue
to have the ability to request the information they need, so long as
they specifically describe such information in their management plans,
making all potential applicants aware of the requirements prior to
application. Thus, the States would be precluded from delaying federal
consistency review either before or after the six-month period begins
simply because they want more information.
NOAA Response to Comments 70 and 71. This section does not require
States to amend their programs when they need additional information
during the six-month review. This section does refer to Sec.
930.58(a)(2), which requires States to amend their programs if they
want to require information in addition to the ``necessary data and
information'' described in Sec. Sec. 930.58(a)(1) and (3) to start the
six-month review period. NOAA strongly encourages States to amend their
programs to be more specific regarding information needs, and some
States have done so. Once the six-month consistency review period
begins, States can request additional information needed to determine
consistency with their enforceable policies, but such requests cannot
stay or otherwise alter the running of the six-month review period
unless the applicant and the State agree in writing to a stay until a
specific date, as required in Sec. 930.60.
Comment 72. Current regulations require applicants to provide
information deemed necessary for the review to begin, while the
proposed revisions provide only that the requested information be
received by the State. It is important that States have the opportunity
to review and analyze the adequacy of the information provided, and
assist the applicant in providing additional information for the review.
NOAA Response to Comment 72. This section is concerned with
determining when the six-month review period begins based on when the
State has received the consistency certification and necessary data and
information described in Sec. 930.58. Thirty days is sufficient time
for a State to determine whether the necessary data and information has
been submitted. The State has the remainder of the six-month review
period to assist the applicant in providing any additional information
other than that required by Sec. 930.58(a).
Section 930.71--Federal License or Permit Activity Described in Detail
Comment 73. We appreciate NOAA's general endorsement of API's
suggestion that CZMA consistency review of OCS activities described in
detail in OCS plans should include federal approvals for individual
permits under the Clean Water Act and Clean Air Act, and therefore
States should not and need not conduct a separate consistency review
for those additional federal permits. While NOAA's preamble comments
will provide helpful guidance to the States, API suggests that the MMS,
States, and industry would be better served by NOAA building that
particular requirement into its consistency regulations, and by the
agency preparing special regulatory guidance to prevent any further
confusion in this regard. API also points out what inadvertently could
be misleading language in the preamble's discussion of the effects of a
State's objection to an OCS plan certification. At one point, NOAA
remarks that ``[i]f the State objects to the consistency certification,
then MMS is prohibited from approving the license or permits described
in the EP or DPP.'' Of course, in the case of an expanded ``single
consistency certification'' including individual air and water permits,
the EPA, and not the MMS, could be the subject of the statute's
restrictions on approval of the license or permit.
NOAA Response to Comment 73. NOAA continues to emphasize the
administrative efficiency gained by including CWA and CAA reviews in
the State's review of the OCS plan, and not conducting separate
reviews. However, NOAA cannot mandate such a requirement in its
regulations. Such a requirement would have to be included by Interior
in OCSLA regulations in its description of what federal approvals are
``described in detail'' in OCS plans. As for the federal authorizations
described in detail in OCS plans, a State objection to a particular
federal authorization precludes the authorizing Federal agency from
issuing its approval, not MMS (unless MMS is the authorizing Federal
agency).
Section 930.76(a) and (b)--Submission of an OCS Plan, Necessary Data
and Information and Consistency Certification
Comment 74. Because the proposed changes would rely on submission
of necessary data and information ``required pursuant to Sec.
930.58,'' it is important that the changes
[[Page 816]]
recommended in rule change 10 and the clarification requested in rule
change 11 or comparable language be included in the final rule. Without
these changes, we would object to the removal of the language in the
current subsection (a) for the reasons stated above.
Comment 75. This Change would drop an essential requirement of
Sec. 930.76(a), which is to ``identify * * * activities described in
detail in the [OCS]
plan which require a federal license or permit and
which will have reasonably foreseeable coastal effects.''
NOAA Response to Comments 74 and 75. The required assessment of
enforceable policies is contained in Sec. 930.58(a)(3). Likewise, the
effects analysis that the applicant must submit is also contained under
Sec. 930.58(a)(3). These requirements are not changed by this rulemaking.
Comment 76. The changes do not ultimately affect a State's ability,
under current CZMA regulations, to make continuing requests for new
data and information that increase the uncertainty of the consistency
process. As the proposed rule states, these changes ``would not affect
a State's ability to specifically describe ``necessary data and
information'' in the State's federally approved management program * *
* or to request additional information during the six-month review
period * * * or to object for lack of information.'' API believes that
this open-ended authority in NOAA's regulations is not needed, given
that MMS has promulgated extremely thorough environmental review
regulations and agency guidance for OCS Plans, and information
generated by this process should be honored by the States. MMS
developed its requirements in consultation with the Gulf coastal
States. API suggests that information now being provided to MMS should
be sufficient for the State's purposes. In addition, States should be
able to identify in their CZM programs the information that will be
required if different from MMS requirements, so that applicants have
this information at the beginning of the process. States have enough
experience with implementation of their CZM programs over the last 15
years, and the types of projects they evaluate for consistency and do
not need to evaluate, on a project-by-project basis, what information
is needed.
NOAA Response to Comment 76. Information obtained for Interior's
OCSLA purposes may not be sufficient for State CZMA purposes. Thus,
States need flexibility to amend their programs to describe necessary
data and information for OCS plans. NOAA agrees with the comment that
States should be able to describe such information needs in their
programs based on years of experience and continues to encourage States
to do so.
Comment 77. API urges NOAA to require the States to identify
information needs in their CZM programs, not just encourage them to do
so. NOAA should also ensure State compliance by recognizing that a
failure to timely seek NOAA's ongoing approval of a specific and
current list of information needs will prevent a State from requesting
supplemental information beyond what is currently described in the
State's approved CZM plan, or in the permitting Federal agency's
regulations and guidance. Moreover, API asks NOAA to ensure that this
process is open to public review. API again urges NOAA to 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 or State CZM plans. To further promote other
federal agencies' use of information guidelines such as those now used
by MMS, API also suggests that NOAA regulations should be changed to
specifically recognize that in cases where the federal permitting
agency has promulgated specific consistency review guidance, in
consultation with the States, a State will carry the distinct burden of
demonstrating a particular need for any supplemental information in
conducting its review and that such State coordination with the
authorizing Federal agency is not advisory but a required feature for
State management programs.
Comment 78. API endorses NOAA's clarification of the State's
completeness/checklist review. API submits that the ``checklist''
nature of the completeness review be confirmed in specific regulatory
language, so that the States will be required to prepare such a
checklist--that is, a checklist submitted to NOAA for approval with
input by the appropriate Federal agencies and affected industry--for
inclusion in their coastal zone management programs.
NOAA Response to Comments 77 and 78. NOAA does not have the
authority to require States to amend their programs. California Coastal
Com'n v. Mack, 693 F. Supp. 821 (N.D. Cal. 1988). NOAA can only require
a State to submit a change that the State has made to its Federally
approved program. 16 U.S.C. 1455(e). Submission of the necessary data
and information, along with the consistency certification, is what
triggers the start of six-month review period. States do have to amend
their CMPs pursuant to Sec. 930.58(a)(2) if they want to describe
necessary data and information in addition to that required by NOAA's
regulations. States need the ability to ask for additional information
during the review period to address relevant matters not covered in the
necessary data and information. See also response to comment 79,
regarding State requests for information beyond the three-month period
when applicants make substantial modifications to projects late in the
six-month review period. As for MOU's with Federal agencies or Federal
agency ``guidance,'' if States want to bind themselves with MOU's or
guidance regarding consistency reviews they can do so. NOAA, of course,
throughout the consistency regulations strongly encourages States and
Federal agencies to closely coordinate consistency reviews and to
develop agreements that will increase the efficiency of the reviews for
a particular State or Federal agency. NOAA is not requiring States to
submit completeness checklists for NOAA approval, because the
information requirements in Sec. Sec. 930.39, 930.58, and 930.76
contain sufficient guidance as to what information must be submitted to
the State in order to start the consistency review periods.
Comment 79. We disagree with NOAA's proposal to require each State
to list the NEPA EIS in their State management plan as an informational
requirement in order for the State to be able to receive the EIS as
part of a complete informational submittal to the State. Where
possible, rulemaking should standardize the informational requirements
needed for State consistency review. Any EIS prepared for the project
will obviously be useful and even essential information for the State's
consistency determination. Therefore, the County requests that, for a
project that requires an EIS, the draft EIS be submitted as part of the
information submitted to the State under this section.
NOAA Response to Comment 79. NOAA has only mandated CZMA-specific
information as ``necessary data and information.'' NEPA documents that
may be required for a Federal permit action may or may not be included
as necessary data and information and some States may want flexibility
to develop their own information needs. See also explanations to rule
change 12 and rule change 15 regarding limitations on listing NEPA
documents as necessary data and information. Therefore, NOAA has not
mandated that NEPA documents
[[Page 817]]
be included as necessary data and information.
Comment 80. The OCSLA, CZMA and NEPA provide opportunities for a
State to review proposed OCS activities. These three acts and
implementing regulations contain different requirements and timelines.
Before proceeding with any changes to Subpart F of the federal
consistency regulations, a complete analysis of the interaction among
these three acts should be undertaken. In addition, a meeting of State
and federal representatives should be convened to discuss the
ramifications of the proposed changes to the federal consistency
regulations and how these regulations interrelate with the other two
acts and implementing regulations.
NOAA Response to Comment 80. The CZMA regulations, including the
regulations as revised by this final rule, in addition to MMS
regulations, contain the coordination needed to address the interaction
of the CZMA and OCSLA. The NEPA connection was thoroughly discussed in
the preamble to the 2000 rule, and further discussed in this final
rule. Further analysis of the CZMA-OCSLA-NEPA interactions is not
needed. See explanation of rule change 15 for further details on the
NEPA limitations for OCS plans and CZMA review.
Comment 81. This section requires the applicant to send the State a
copy of the OCS Plan when the OCS Plan is submitted to Interior.
Receipt of a copy of the initial plan by the State will encourage early
cooperation among the State, Interior and the applicant. Early
cooperation will help the State respond to concerns and ensure that the
consistency review proceeds in a timely manner.
NOAA Response to Comment 81. NOAA cannot require the applicant to
send its initial OCS plan to the State. The submission to the State is
by Interior once Interior determines the submission to be complete for
OCSLA purposes. As it could be changed to comply with OCSLA standards,
the initial OCS plan may not be the version that the State will eventually
review for consistency. NOAA does, however, encourage the applicants to
consult early with the State about its proposed OCS activities.
Section 930.77(a)--Commencement of State Agency Review and Public Notice
Comment 82. For OCS activities, which by their very nature are
complex and controversial, the proposed rule would limit requests for
information by the State to the first three months of the six-month
review period, and thus prohibit a State from asking for any
information after three months. This change implies that unless a State
requests information within the first three months of the review
period, it may be prohibited thereafter from objecting based on lack of
information. Given the emphasis in the previous regulatory changes on
maximizing public participation in the federal consistency process,
this proposal represents a policy reversal and would have the effect of
stifling public input into the process. It would also clearly diminish
State authorities by removing the ability of the State to object based
on lack of information (or at a minimum, invite litigation over the
question of whether the State retains this authority). It may require
states to hold an additional hearing within three months, solely for
identifying information needs. Alternatively, it may simply compel a
State to act within three months, just to preserve its options, thus
halving the effective review period from six months to three. The idea
that no new information need could or should arise after three months
is not realistic, from a practical perspective gained from reviewing
highly complex projects. In addition, interested members of the public
may alert the State to impacts or information about which it was not
initially aware. We strongly oppose this change as unworkable,
impractical, and unrealistic, and one that will lead to increased
litigation, rather than a streamlined process.
NOAA Response to Comment 82. The completeness/checklist review is
not the State's substantive review of the activity, and does not
preclude the State from requesting additional information during the
review period or objecting for lack of information. Requesting
additional information and objecting based on lack of information are
covered by Sec. 930.77(a)(3). The completeness/checklist review merely
clarifies when the six-month review period begins by determining
whether the information required by Sec. 930.76 has been submitted to
the State. As stated in the proposed rule and in this final rule, a
primary purpose of this rulemaking is to provide greater clarity,
transparency and predictability to the federal consistency process. The
final rule meets those objectives by providing clear expectations
regarding the start of review periods and information needs. NOAA found
these changes were needed because there were increasing instances of
State attempts to prolong the six-month review period by continual
requests for additional information.
The CZMA is intended to provide States with an opportunity to
review federal actions with coastal effects within specific time
frames. While the time frames should not limit information necessary
for a State to make a reasonable decision, States should not, and by
statute, cannot, have unlimited time to review a project. The issue is
what is necessary for the State's review. NOAA's regulations, since
1979 and as amended in 2000 and now in this final rule, provide
reasonable parameters for what is necessary data and information to
start the consistency review periods for Federal agency activities,
federal license or permit activities and OCS plans. These ``necessary''
information requirements are not significantly changed by this
rulemaking. If the information required by NOAA in Sec. 930.58(a)(1)
and (3), and information required by the State pursuant to 15 CFR
930.58(a)(2), is not sufficient for the State to complete its review
the State can request additional information during the six-month
period. In most cases the information submitted pursuant to Sec. Sec.
930.39, 930.58 and 930.76, should be all the information needed for a
State to complete its review. To avoid situations where information
requests are made late in the six-month review of OCS plans, States
must determine whether additional information is needed in the first
three months. However, NOAA has added a caveat to the rule allowing the
State to request additional information after the three-month period if
the person or Interior changes the OCS plan such that the plan
addresses activities or coastal effects not previously described or for
which information was not previously provided. This should address the
main point of the comment and also foreclose attempts to withhold
project changes until after the three-month period. NOAA's consistency
regulations have always required that if a State wants to object for
lack of information, it must first have provided the applicant/person
with a written request for the information and describe why the
information is needed to determine consistency with its enforceable
policies. 15 CFR 930.63(c). However, a State concurrence is effective
for the plan as reviewed by the State and not to changes in the plan
not available for review by the State. Therefore, the person should
ensure that the State has all information relevant to a consistency
certification before the end of the three-month period.
Comment 83. We believe that requiring a program change to get
additional information would be unduly burdensome to State agencies,
especially in light of the other changes
[[Page 818]]
proposed in the Notice. The proposed new sub-section (a)(3) would
require the State coastal agency to provide minute detail, in writing,
of the reasons why additional information is requested--shifting the
burden of proof to the State agency from the applicant.
NOAA Response to Comment 83. The rules, since 1979, have required
States to amend their programs to describe necessary data and
information if the State wants information in addition to that
described in Sec. 930.58(a) required to start the six-month review
period. This procedure was further emphasized in the 2000 rule and is
not being changed by this final rule. It has also always been required
that if the State wants additional information during the State's six-
month review, the State must describe the reasons why it needs the
information to determine consistency with specific enforceable
policies. See 15 CFR 930.63(c).
Comment 84. In Sec. 930.58(a)(2), the State ``may'' amend its
program to include information needs. In Sec. 930.77(a)(2), the impact
of the new requirement providing that if a State needs information in
addition to the information required by section 930.76, it ``shall
amend its management program'' is not clear. Why is this new
requirement added to the regulations when the States already have the
option to amend their programs under section 930.58(a)(2)? While it may
be a good practice and one that should be encouraged where the
information needs are clearly identifiable, a State agency should not
be required to amend its program to request additional information that
is needed to determine consistency. A State should not be required to
amend its program to anticipate potentially unknowable information
needs. An effort by the California Coastal Commission, MMS and industry
in the early 1990's was abandoned by mutual agreement as potentially
not productive because information needs change over time due to
changed circumstances. A list could be overly burdensome and wasteful
for applicants, if States tried to anticipate every possible concern. A
list would be out of date relatively soon after it was compiled. The
more comprehensive and relatively simple requirements of the CZMA
benefit applicants by enabling them to focus on the relevant issues
rather than satisfy an exhaustive and inflexible list of information
requirements that would need to be satisfied. Furthermore, a list that
is not adequate for all States may lead to more State objections based
on lack of information, which would not improve the efficiency of the
consistency review process. It is very important that, if this new
requirement or some variation thereof is maintained to encourage States
to amend their programs, it not be open to interpretation as a bar or
limit to the applicant providing or State requesting all necessary
information supporting the consistency determination, when it has not
been included in an amended program.
NOAA Response to Comment 84. A State is not required to amend its
program to describe State specific necessary data and information, thus
the term ``may'' was used in Sec. 930.58(a)(2). If, however, a State
wants to require ``necessary data and information'' in addition to that
described in Sec. 930.58(a) to start the six-month review period, the
State must first amend its CMP. That is why ``shall'' was used in Sec.
930.77(a)(2). NOAA has changed the language in Sec. 930.77(a)(2) to
better reflect this long-standing interpretation. Obtaining information
that is in addition to the necessary data and information required by
Sec. 930.76 is described in Sec. 930.77(a)(3).
Section 930.82--Amended OCS Plans
Comment 85. The proposed revision does not appear to substantially
change the process for review of amended OCS plans and the State does
not object.
NOAA Response to Comment 85. NOAA notes this comment.
Comment 86. This section removes a requirement that the applicant
send a copy of the amended OCS plan to the State. This provision should
remain because it encourages early cooperation among the State,
Interior and the applicant. The second change is an addition that
Interior will furnish the State with a copy of an amended OCS plan when
it is satisfied that OCSLA and CZMA requirements have been met. While
Interior is best suited to determine if the requirements of OCSLA are
met, Interior personnel may not have the expertise to decide if
requirements of the CZMA regulations are met. There should be a
consultation with the State built into this process.
NOAA Response to Comment 86. NOAA's change to this section is not a
substantive change. NOAA cannot require the applicant to send its
initial plan to the State. The submission to the State is by Interior
after Interior determines the submission to be complete for OCSLA
purposes. Because an OCS plan could be changed to comply with OCSLA
standards, the initial OCS plan may not be the version the State will
eventually review for consistency. NOAA does, however, encourage the
applicants to consult early with the State about its proposed OCS
activities. The amended plan referred to under this section is a plan
to which the State objected and the Secretary did not override the
State's objection. The provision for Interior to provide the amended
plan to the State is merely a determination that the amended plan has
met OCSLA requirements and is then ready to be sent to the State.
Section 930.85(b)--Failure To Comply Substantially With an Approved OCS
Plan
Comment 87. Although no changes are proposed to this section, this
section could be clearer as to who should be responsible for
recommended remedial action. We recommend this subsection be clarified
through the addition of language at the end of the next to last
sentence to read, ``Such claim shall include a description of the
specific activity involved and the alleged lack of compliance with the
OCS plan, and request for appropriate remedial action by the licensee
or permittee.''
NOAA Response to Comment 87. NOAA has not made this change as the
remedial action could be taken by either MMS or the person.
Section 930.85(c)--Failure To Comply Substantially With an Approved OCS
Plan
Comment 88. The proposed change would shift the authority from the
Director of OCRM to MMS to determine whether an OCS plan has not been
substantially complied with and whether an amended plan must be
reviewed by the State for consistency. NOAA states in the preamble that
this is needed to clarify that MMS must make the determination whether
a plan has been substantially complied with or not. In the 2000 rule
changes to these regulations, NOAA stated in the preamble that one
``federal agency had commented that the CZMA does not authorize NOAA to
require OCS plan amendments. NOAA disagrees. This is an existing
regulatory requirement and is mandated by the CZMA, CZMA Sec.
307(c)(3)(B).'' Also in the 2000 rule changes, NOAA added Sec. 930.65
which authorizes the State to monitor federally licensed and permitted
activities to determine whether they are not being conducted as
originally proposed and will cause substantially different effects.
NOAA's rationale for adding the remedial Sec. 930.65 now supports
retaining Sec. 930.85, the remedial section upon which Sec. 930.65
was modeled. Changing this remedial provision is a huge step backward;
it would greatly reduce the State's ability to insure that OCS plans
are carried out as proposed
[[Page 819]]
and approved. NOAA should retain the provisions of Sec. 930.86 which
provide the State ``with a more meaningful opportunity'' to address
instances where the State claims an OCS plan is not being substantially
complied with and additional consistency review is mandated. Again,
this change is inconsistent with both the letter and the spirit of the
CZMA. Rather than fostering cooperation and giving the State a truly
meaningful way to insure OCS plans continued compliance with the
State's management program, this change would reduce the State's role
and abdicate the Director's responsibility in favor of MMS.
Comment 89. The proposed revision to this paragraph eliminates all
recourse by the State or by NOAA to seek compliance with the CZMA, in
cases where an OCS operator may be acting in a manner that is not in
accord with an approved operating plan. MMS certainly should have
primary responsibility for ensuring that OCS Plans are followed,
however, compliance with the approved State program and the CZMA is
also in question should an operator deviate from the approved plan. We
recommend that the regulations give MMS a reasonable opportunity to
review and act on a report that a person is failing to comply
substantially with their OCS plan, but the regulations should retain
some mechanism by which the State can seek review and intercession via
NOAA authorities.
NOAA Response to Comments 88 and 89. As stated in the proposed rule
and this final rule, unlike other Federal statutes, the CZMA
specifically addresses the OCSLA oil and gas program and this
establishes a unique coordination between the CZMA and the OCSLA. Where
the CZMA mandates certain requirements for OCS plans, these are
addressed in NOAA's regulations. Where the OCSLA program provides
Interior with certain roles not covered by CZMA mandates, NOAA will
rely on Interior to implement those roles, consistent with CZMA
requirements. This statutory-specific relationship is distinct from
other Federal statutes and, thus, the remedial action section, 930.65,
is appropriate for other federal authorizations, but not OCS Plans. As
such, and as explained in the proposed rule and the explanation in this
final rule for Sec. 930.85(c), NOAA's rationale for retaining this
section in the 2000 rule did not fully account for CZMA section
307(c)(3)(B) and the CZMA-OCSLA interaction. This rule change is needed
to more closely coordinate CZMA and OCSLA requirements. Thus, NOAA
cannot ``abidicate'' an authority which never expressly existed and the
change is, in fact, consistent with both the CZMA and the CZMA-OCSLA
relationship.
Comment 90. To clarify this section, we recommend the following
modifications: (1) Insert ``or to the State's request for appropriate
remedial action'' between ``and applicable regulations'' and ``the
person shall comply with'' in the third line of subsection (c); and (2)
insert ``if such has been prepared'' between ``amended OCS plan
(excluding proprietary information)'' and ``necessary data and
information'' in the last sentence.
NOAA Response to Comment 90. These changes are not needed.
Paragraph (c) now applies to instances where MMS determines a person
has failed to substantially comply with an approved OCS plan,
regardless of whether the State requested remedial action or not.
Remedial action is covered in paragraph (b).
Section 930.121(a)--Consistent With CZMA Objectives on Appeal
Comment 91. FERC's issuance of a certificate of public convenience
and necessity for an interstate pipeline should by definition be deemed
to meet the criteria that an activity significantly and substantially
furthers the national interest. A FERC certificate confers on its
holder the ability to exercise a federal right of eminent domain. The
fact that the Congress in the Natural Gas Act (NGA) saw fit to confer
this right on a private applicant acting pursuant to a federal
authorization speaks volumes about the national interest furthered by
interstate pipeline projects with FERC certificates.
NOAA Response to Comment 91. FERC findings for an interstate
pipeline will undoubtedly be an important factor considered by the
Secretary to determine whether a project furthers, in a significant or
substantial manner, the national interest as articulated in the CZMA.
However, an order issued by FERC pursuant to the NGA to authorize the
construction and operation of an interstate pipeline remains subject to
other federal statutes as FERC itself has recognized. The statutory
responsibility for determining whether a project is consistent with the
objectives of the CZMA rests solely with the Secretary of Commerce. The
question of whether a project furthers the national interest as
articulated in the CZMA is one aspect of this determination. Findings
by FERC under the NGA would be given appropriate consideration by the
Secretary and major energy projects, such as an interstate pipeline,
may likely be found to significantly or substantially further the
national interest for CZMA appeal purposes. However, this conclusion is
made by the Secretary and relies on the factual record developed for an
individual appeal.
Section 930.121(c)--Alternatives on Appeal
Comment 92. New Jersey's Coastal Management Program supports the
proposed rule changes to this section. In particular, we strongly
support the language clarifying that an alternative shall not be
considered unless the State submits a statement to the Secretary that
the alternative would permit the activity to be conducted in a manner
consistent with the enforceable policies of the management program.
NOAA Response to Comment 92. NOAA notes this comment. The section's
revisions reflect the criterion relied on by the Secretary for
determining whether an alternative will allow a proposed activity to be
conducted in a manner consistent with a state's coastal management
program--as established by numerous CZMA appeal decisions.
Comment 93. The second portion of this section will prohibit the
Secretary from considering any alternative that the State had not
determined to be consistent with the applicable enforceable policies.
It is unreasonable to expect a State to conduct a comprehensive
analysis of alternatives to ensure complete consistency especially in
complex projects which are not within the expertise of a coastal
management agency. Further, it is unfair to require the State to commit
to a finding of consistency on an alternative that necessarily will not
have been fully developed or analyzed. However, it is often possible to
identify alternatives with fewer impacts that, upon further study, may
prove to be acceptable. Additionally, the consideration of alternatives
should include those identified by the Secretary or any party to the
appeal and not be limited to those the State identifies. If the
language is adopted as proposed, it seems entirely likely that an
applicant for Federal activity could do a cursory ``bare-bones''
evaluation and propose an alternative that is clearly unacceptable to
the State so that the alternatives analysis burden would fall to the
State. The responsibility to conduct a reasonable alternatives analysis
rightly belongs to the applicant, who has the original burden of proof
and persuasion respecting its chosen proposal.
NOAA Response to Comment 93. This is an adoption of current
practice, as noted in the explanation to this rule
[[Page 820]]
change. Anyone can offer an alternative on appeal. However, this change
clarifies that for an alternative to be considered available, the State
would have to declare whether it is consistent. The point of the
Secretary's decision is to determine whether to allow a Federal agency
to authorize the proposed project, which has already undergone
substantial State review. Thus, if an alternative meets the purpose of
the project and the State finds the alternative consistent, then the
applicant could adopt the alternative and proceed with that alternative
without further State CZMA review. The purpose of the appeal decisions
is not to begin a new round of State reviews for the same project, but
to bring finality to the CZMA process for that project. If a State
cannot make a finding of consistency for an alternative on appeal, then
the State would not prevail on that element of ground I.
Section 930.127--Briefs and Supporting Materials
Comment 94. Thirty days is not an adequate time period for the
State to respond to the new issues raised at the appeals level. As NOAA
points out, the Secretary is not imposing his or her judgment on the
consistency of an activity with a State's program, but rather is
reviewing new questions of balancing competing national interests and
looking at national security needs. By their very nature, these issues
do not involve questions of consistency with the State's coastal
program. Rather, these are new issues that the State does not (nor is
required to) consider in its consistency review. The consideration of
these issues will require additional data gathering and, possibly,
public input, and thus 30 days is insufficient time for the States to
consider these issues.
Comment 95. As a general matter, it would be preferable for both
States and the appellants to permit the Secretary to establish a
briefing schedule in consultation with the parties as provided in the
current regulation. This would enable a schedule to be established to
meet the case-by-case needs of both parties. To the extent the final
rule sets out a specific briefing schedule, it is in the best interest
of both parties to have an adequate opportunity to submit information
to assure a complete record. Allowing for a less rigid briefing
schedule would not extend the time set for completion of the record and
issuance of a final decision. CSO supports the following specific
technical changes: Subsection (a)--Provide at least 45 and preferably
60 days for States to submit a reply brief; Subsections (a), (b) &
(c)--Clarify the relation between the initial brief and reply and
additional procedural or other briefs required by the Secretary. For
example, would separate time periods be set out for those briefs? Would
the need for these additional briefs extend the briefing schedule?
Subsection (c)(3)--There seems to be an error in subsection (c)(3) that
refers to sections 930.127(a) and (c)(1). The significance of these
cross-references is not clear. Subsection (e) provides for extensions
of briefing schedules ``only in the event of exigent or unforeseen
circumstances.'' This provision is overly restrictive.
Comment 96. The State generally supports these changes, but we have
particular concerns. First, we suggest that allowing the appellant 30
days to file the notice of appeal, and an additional 30 days to file
its brief, whereas the State is permitted only 30 days in which to
respond is unfair to the State. We recommend that the State be given 60
days, which equals the total time afforded the appellant. Second, we
ask that subsection (b)(1) of the final rule clarify whether supporting
materials must be submitted in electronic format or whether just the
briefs must be so submitted. Third, we suggest that the Secretary's
authority to determine the scope of the record is not unbridled and is
limited by settled principles of administrative and procedural law.
Subsection (c)(1) should state that, at a minimum, the record shall be
comprised of all properly filed and served briefs and supporting
materials and all timely submitted public and agency comments. Fourth,
as the rule allows for the Secretary to order additional briefs,
subsection (e) should clarify that the Secretary may establish the
filing periods for such briefs beyond the limits specified in
subsection (a).
Comment 97. It would be both practical and helpful to allow the
parties to submit additional response briefs within 20 days after the
filing of the State's opening brief. This would allow the parties the
opportunity not only for important rebuttal arguments, but also for the
parties' responses to any public, or Federal agency comments that had
been received into the decision record.
NOAA Response to Comments 94, 95, 96 and 97. To meet the more
restricted time period for closing the decision record, limitations are
needed to the briefing schedules and time spent developing the decision
record. These limitations to the briefing schedules are even more
imperative now that the Energy Policy Act has imposed a shorter, 160-
day, period to develop the decision record and a shorter period to
issue a decision, from 135 days to 75 days. The appeal decision record
only needs to provide the Secretary with a reasonable basis to issue a
decision. The record is ``complete'' when the Secretary determines
there is sufficient information to make a reasonable decision. Public
input is provided for in the public comment period in Sec. 930.128.
Likewise, to issue a more timely decision and as described in the
description of this rule change, there will be only one reply brief by
the appellant. Additional briefs will occur only as needed by the
Secretary. Time periods to submit any additional briefs required by the
Secretary would be established by the Secretary based on the complexity
of the information requested and the amount of time left in the period
to complete the decision record under Sec. 930.130. Thus, States
should ensure that (1) they fully participate in the application
process during the authorizing Federal agency's proceedings and raise
all State concerns and requirements, to the extent possible, to the
authorizing Federal agency; and (2) the States should address issues in
their objection letters to the fullest extent possible, and then,
again, in their brief on appeal. The cross-references to paragraphs (a)
and (e) in paragraph (e)(3) are correct, as those sections describe the
briefs to be filed. In order to meet the 160-day period in Sec.
930.130, the Secretary will need to adhere to a strict briefing
schedule and, thus, extensions are only for good cause shown. All
materials should be provided in electronic format, as required by the
existing rule. When some materials, e.g., large maps, do not lend
themselves to electronic format, NOAA does not require that these
materials be provided electronically. Paragraph (e), formerly (c),
already allows the Secretary to extend the time for submission of briefs.
NOAA is maintaining the deadlines described in the proposed rule
for when the appellant's and State's briefs are due. These deadlines
are needed to address the deadlines established by the Energy Policy
Act. The appellant's brief is due 30 days after submitting the notice
of appeal and the State's brief will be due 60 days after appellant
submits its notice of appeal.
Comment 98. While API sees potential utility in the provisions in
proposed section 930.127(c)(2) for the Secretary to have the option of
requesting an initial round of briefs to address only procedural or
jurisdictional issues, followed by briefs on the merits as appropriate,
the proposed rule needs to be changed to clarify that exercise of this
option by the
[[Page 821]]
Secretary would constitute an exception to the otherwise uniform
provision in proposed section 930.127(a) that requires the appellant's
opening brief to be filed within 30 days of the appeal notice, and the
State's brief to be filed 30 days thereafter.
NOAA Response to Comment 98. No change is needed to note the
``exception'' since the uniform provision in Sec. 127(a) is not that
only one brief is allowed, but that the parties' one brief is due at a
certain time. The provisions in paragraph (e) provide for other briefs
that may be required and paragraph (e)(4) clearly provides the
``exception'' language requested by the comment.
Comment 99. Section Sec. 930.127(b)(2) states that ``[a]t the same
time that materials are submitted to the Secretary, the appellant and
the State agency shall serve at least one copy of their briefs,
supporting materials and all requests and communications to the
Secretary and on each other.'' (Emphasis added.) API believes that the
highlighted language could be misread as requiring an additional
obligation of service on the Secretary beyond the procedures already
outlined in Sec. 930.127(a) and (b)(2). Thus, API requests that NOAA
consider changing the language of proposed Sec. 930.127(b)(2) to read
as follows: ``At the same time that materials are submitted to the
Secretary, the appellant and State agency shall serve on each other at
least one copy of their briefs, supporting materials, and all requests
and communications submitted to the Secretary.''
NOAA Response to Comment 99. NOAA agrees with this comment and has
made this change.
Section 930.128--Public Notice, Comment Period, and Public Hearing
Comment 100. The proposed change would require the Secretary of
Commerce to give greater weight to Federal agencies in administrative
appeals where they provide comments within their area of expertise.
NOAA's proposal ignores the expertise of the State in coastal planning
and permitting issues. This change, along with the other changes noted
above, reduce the deference accorded to the State under the current
regulations and elevate the input of Federal agencies. Congress
intended the States to play an equal role in determining the fate of
their coastal zones except in the most unusual circumstance: when
either, after a judicial decision finding a federal activity to be
inconsistent with a State's management program, the President
determines that inconsistent activity is in the paramount interests of
the United States or, with regard to OCS plans, the Secretary of
Commerce determines that the plan's activity is necessary in the
interest of national security. (16 U.S.C. 1456(c)(1)(B) and
(c)(3)(B)(iii).) NOAA should not thwart Congress's intent by adopting
narrow interpretations of laws intended to have a broad reach.
NOAA Response to Comment 100. This section deals only with Federal
agency comments on appeals to the Secretary in 15 CFR part 930, subpart
H. This section has no impact on the implementation of other subparts
and has no impact on the weight given to State agency views on appeal.
This change only means that NOAA shall give greater weight to the views
of Federal agencies commenting in their areas of technical expertise
over the views of other Federal agencies who are not commenting in
their area of technical expertise. This section does not pit Federal
agency views against State views. For example, an authorizing Federal
agency has developed an EIS under NEPA for its proposed action to issue
a federal authorization. The authorizing Federal agency certainly has
some knowledge of environmental impacts, but suppose there is possible
harm to an endangered species or a marine mammal. In those cases, the
expert Federal agencies would not be the authorizing Federal agency,
but would be the Endangered Species Act agencies (the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service (NMFS)). The
views of the Fish and Wildlife Service and NMFS would be accorded
greater weight than the authorizing Federal agency, or another Federal
agency who might also happen to comment on the ESA or MMPA issues.
Comment 101. The proposed change would allow the Secretary to
reopen the period for Federal agency comments. All interested or
affected parties, not just Federal agencies, should be able to submit
comments if the Secretary reopens the period for comments. The change
appears to accommodate the time extension request of a Federal agency
while excluding other parties from submitting comments.
NOAA Response to Comment 101. In order to meet the more restricted
time period for closing the decision record, the public comment period
will not be re-opened, except as described in the regulation if the
Secretary holds a public hearing. Parties submit their views according
to the briefing schedule. In most cases this will also apply to Federal
agencies. However, there may be instances when the Secretary will need
further input from the authorizing Federal agency or an expert Federal
agency. In these cases, the Secretary may reopen the period for Federal
agency comments, when there is good cause shown, but before the record
closes.
Comment 102. Section 930.128(b) suggests that the public could be
required to comment prior to the availability of NEPA documents and
other important information that clarify the nature of the proposed
action and the potential for impacts on the State's coastal zone.
NOAA Response to Comment 102. As explained above in response to
comments on Sec. 930.127, the Secretary needs sufficient information
to make a decision. The Secretary does not necessarily need to obtain
all conceivable views on every item submitted for the record. Further,
the shorter deadlines imposed by the proposed rule and the Energy
Policy Act dictate a more streamlined appeals process that requires
NOAA to establish a revised process for input by the parties, the
public and Federal agencies.
Section 930.129--Dismissal, Remand, Stay, and Procedural Override
Comment 103. If the Secretary remands the case back to the State,
because new information relevant to the State's objection arises, NOAA
proposes to reduce the period for State comments from three months to
20 days. It would be virtually impossible for States to comply with
this change and it is likely that information on the alternative would
not be complete. As a new alternative, there would not be a complete
design or adequate environmental evaluation. Rather, the States will be
considering a conceptual plan. In addition, the change would eliminate
public participation in the process, which is one of the cornerstones
of federal consistency. In California's case, the CCC and the BCDC meet
only once every 30 days. Under this proposal, insufficient time would
be available for us to conduct a public hearing and determine
consistency with our program.
NOAA Response to Comment 103. This change is needed to address the
new time frame for closing the decision record. The remand to the State
is not a new review of the entire project and does not require public
comment at the State level. The remand is for the State to reconsider
its previous objection in light of the new information. Public comment
on appeals is provided by the Secretary under Sec. 930.128. However,
in response to the comment, NOAA believes that a maximum time for
remand is not needed and that the Secretary can choose a period longer
than 20 days or might choose a period
[[Page 822]]
less than 20 days, depending on the time remaining in the 160-day
period to develop the record. Therefore, the ``exceed 20 days''
language has been removed.
Comment 104. The change to paragraph (c) would remove the
Secretary's ability to remand the appeal for reasons other than those
allowed under section 930.130 governing the stay of closing of the
decision record. This would have the effect of discouraging applicant-
State agency resolution of issues through negotiation, since it would
no longer allow settlement or negotiation as a basis for remanding an
appeal. Issues would remain unresolved, until the Secretary decides
them in favor of one side or the other.
NOAA Response to Comment 104. Open-ended remands are no longer
possible under a definitive date in which to close the decision record.
Comment 105. Section 930.129(b) should be modified by inserting the
words ``including the enforceable policies of the State,'' after the
word Act.
NOAA Response to Comment 105. This change would be, in part,
redundant with the remainder of this paragraph. While the Secretary may
decide whether the State has complied with CZMA requirements by basing
its objection on enforceable policies and objecting in a timely manner,
the Secretary does not review the substantive basis for the State's
decision. The Secretary will not substitute his decision for that of
the States. Such an action would be contrary to a basic principle of
the CZMA that, CZMA coastal management decisions are made by the States
pursuant to State law incorporated into federally approved CMPs. Hence,
the Secretary's balancing of the coastal effects with the national
interest and applying the CZMA objectives is a de novo review.
Section 930.130--Closure of the Decision Record and Issuance of Decision
Comment 106. We have serious concerns that the consistency appeals
process has caused undue delays in energy projects. Furthermore, NOAA's
proposed rule, while providing clarity to some definitions, fails to
ensure that consistency appeal decisions are made in a timely fashion.
NOAA's proposal establishes an unnecessarily long 270-day window for
record closure. Since the federal permit agency's decision must have
fully considered the expertise of all relevant federal and State
agencies, as well as project need, alternatives, and coastal impact
mitigation to satisfy court review, NOAA should close its record
immediately upon receiving final party briefs (API asks for a 120-180
day period to develop the decision record). At that point the Secretary
has all record evidence necessary to decide any appeal. Further, NOAA's
proposed deadline exceptions for additional environmental or biological
opinions are not needed for any appellate review and would simply delay
the appeal. We request that NOAA change its proposal to comply with
congressional intent that the Secretary decide these appeals expeditiously.
Comment 107. While appeals to the Secretary are relatively rare,
they do have the potential to significantly impact proposed projects in
which the mere fact of delay can sometimes be fatal to the ability to
continue with the project. In such cases, we feel that it would be
beneficial to process appeals to the Secretary of Commerce on a fast-
track basis. We suggest a process in which the record on appeal
consists of documentation compiled by the State and the relevant
Federal agencies from which approvals for the projects must be obtained
and that NOAA shall give conclusive weight to and be bound by any prior
determination by a Federal agency having authority to authorize the
activity determining the national or public interest or the
reasonableness of alternatives. After a short briefing period and
opportunity for public comment, it is important that a decision be
issued as soon as possible and preferably within 90 days.
NOAA Response to Comments 106 and 107. NOAA proposed a 270-day
period as a reasonable time in which to close the decision record. NOAA
felt that the 270-day time period was needed because the authorizing
Federal agency's decision record often lacks information needed to
address CZMA issues. The Secretary's review is not a review of the
State objection, rather it is a de novo determination of whether the
project is consistent with the objectives of the CZMA or in the
interest of national security. The Secretary's judgement is not
substituted for that of the authorizing Federal agency regarding the
merits of the project, nor does the Secretary determine whether a
proposed project complies with other Federal law. However, because of
the multiple national interest requirements of the CZMA, the Secretary
must evaluate the project in light of the competing CZMA objectives.
Varying levels of information and detail are required to make these
determinations which are dictated by many factors such as the nature of
the project, scale and scope of effects on coastal uses and resources,
alternatives to the proposal, etc. NOAA has amended Sec. 930.127(c)(3)
to note the importance of the authorizing Federal agency's
administrative decision and record in the Secretary's decision, when
that information is submitted to the appeal decision record.
The appeal process is an important component of the CZMA formula to
balance State-Federal-private interests. The Secretary's consideration
of the national interest in the CZMA objectives is a ``check'' on the
State's authority to block projects affecting State coastal uses or
resources. If a State objects to the issuance of a federal
authorization, then the project cannot go forward unless the Secretary
overrides the State's objection.
An unreasonably short period for developing the decision record and
relying solely on the authorizing Federal agency's record could
substantially weaken the Secretary's decision to override the State's
objection, thus, significantly diminishing this important CZMA
safeguard. Moreover, the burden of establishing that the Secretary
should override a State's objection generally rests with the permit
applicant. NOAA is concerned that the time period proposed by the
comment could limit the ability of the applicant/appellant to develop
national interest information related to CZMA objectives, by (1) not
allowing sufficient time, and (2) forcing all parties to use the
authorizing Federal agency's record which is developed for purposes
very different than those of the CZMA. To meet the deadlines
established by the Energy Policy Act, NOAA has had to further alter
some of the appeals procedures to accommodate the new deadlines,
provide the parties with a reasonable opportunity to argue their
positions, and allow the Secretary sufficient time to evaluate the
decision record, draft a decision document and issue a decision.
As described above for rule change 25, Sec. 930.130, the Energy
Policy Act replaces NOAA's proposed stay provision with a new stay
provision. The Secretary may still use the new stay provisions to
obtain NEPA and ESA documents. Again, NOAA emphasizes that doing so
allows the Secretary to obtain environmental documents from the
authorizing Federal agency and are not additional environmental
documents developed by the Secretary, but are the environmental NEPA
and/or ESA documents required by operation of other Federal law without
which the authorizing agency cannot complete its permitting action. The
Secretary's
[[Page 823]]
request for these documents does not delay issuance of the federal
authorization. If the NEPA and/or ESA documents are completed prior to
the appeal or during the 160-day decision record period, then the
exception need not be used. The use of the exception is most likely to
be used in the OCS oil and gas context where timelines of the OCSLA
require the CZMA six-month consistency review period to start before
MMS completes NEPA or ESA compliance. Nevertheless, OCS oil and gas
projects are not delayed by use of this exception, because MMS cannot
issue any license or permit until NEPA or ESA compliance is complete.
Comment 108. The Natural Gas Act (NGA), which predates the CZMA by
decades, confers on FERC plenary authority to issue certificates of
public convenience and necessity to authorize the siting, construction
and operation of interstate natural gas pipelines. Numerous Supreme
Court decisions validate the preemptive effect of FERC's authority
under the NGA. The Congress in 1972 made clear that enactment of the
CZMA did not diminish, modify or supercede this preexisting federal
authority. CZMA section 307(e). Now, however, the pending appeals from
State objections to consistency certifications for proposed interstate
pipelines that have received FERC certificates calls into question
whether this clear statement by the Congress will be followed. NOAA's
final rule should state clearly that it will give due weight to FERC's
findings in view of the statutory scheme in the NGA that confers on
FERC sole responsibility for determining whether, and under what
conditions, a proposed interstate pipeline is required by the public
convenience and necessity. The NGA and NEPA require FERC to assess all
reasonable alternatives to a pipeline's construction proposal as a key
factor in its evaluation and determination. Yet NOAA asserts that it
must review alternatives that the protesting coastal State, in that
State's judgment, deems consistent with its State coastal management
plan. This subverts the comprehensive federal scheme Congress intended
for interstate pipeline analysis. State consideration of issues not
already covered in the FERC's Environmental Impact Statement (EIS)
should, at the very least, be done within the FERC-imposed deadline for
State agency comments. This would continue to allow for full State
participation, while protecting federal authority to authorize
interstate natural gas pipeline construction pursuant to the NGA. Thus,
the federal consistency regulations should be revised to require, as a
condition for approval of a State's CZMA program, that the State
participate in the FERC's certificate/NEPA environmental review process
to ensure that FERC has the opportunity to address the State's
concerns. To the extent that the CZMA or regulations thereunder require
NOAA to make a determination in its own name (as distinguished from
resolving CZMA matters within the FERC certificate process) NOAA should
accept the record developed at FERC as being dispositive of the issues
reviewed and resolved by the FERC certificate process.
NOAA asserts that it has de novo review authority pursuant to the
CZMA, without citation to the statute. Absent an express statutory
grant of authority for de novo review, however, NOAA's authority under
CZMA is appellate only. It is black letter law that an ``appeal'' is an
examination by the appropriate review body of a decision record to
determine if there are material errors of fact or application of law
contained in that record. Therefore, NOAA lacks the authority to engage
in a de novo review of the interstate pipeline routing alternatives
considered by the FERC in the NGA certificate process. NOAA's review
fails to address the fact that in considering alternative routes for an
interstate pipeline that has been certificated by the FERC, NOAA is
engaging in what amounts to the very form of de novo review of the
Federal agency's decision that NOAA disclaims.
NOAA also asserts that ``through the CZMA Congress gave the States
the ability to review federal actions, independent of the Federal
agencies' reviews.'' This statement, however, is inconsistent with the
fact that the CZMA limits NOAA's consistency review of a federal permit
activity to an examination of whether the proposed activity is
consistent to the maximum extent practicable with the enforceable
policies of a State's coastal zone management plan. A State policy in
its coastal zone management plan that has the effect of blocking the
siting of an interstate pipeline could not be enforceable against a
federally pre-emptive NGA. For instance, in the case of an interstate
pipeline project that is to be situated within the coastal zone of a
State and has been or is to be issued a certificate of public
convenience and necessity under NGA section 7(c), 15 U.S.C 717f(c),
conditioned on compliance with 16 U.S.C. 1456(c)(3)(A), a State may
validly object to a pipeline company's consistency certification only
if that objection is based on State policies that satisfy pre-existing
substantive federal constitutional standards and statutory limitations,
including those arising under the commerce clause and the supremacy clause.
NOAA Response to Comment 108. The NGA may preempt State regulation
of interstate natural gas pipeline permitting. However, it does not
preempt CZMA requirements. The CZMA is part of a Federal scheme
allowing State review of federal authorizations for private activities
that have effects on State coastal uses or resources. Thus, both the
NGA and CZMA can and must be given the full effect of Federal law.
Consistency with State enforceable policies does not violate any
preemptive effect of the NGA because the State review, pursuant to
federally approved State enforceable policies, is part of the federal
CZMA scheme and is not an intrusion upon FERC's authority under the
NGA. No federal license or permit activities are exempt from federal
consistency: consistency applies if the activity will have reasonably
foreseeable coastal effects. 16 U.S.C. 1456(c)(3)(A), Conference Report
at 970-972. The NGA does not explicitly repeal any part of the CZMA.
Congress affirmed the no exemption component of the CZMA federal
consistency requirement when it reauthorized the CZMA in 1996, with no
mention of the NGA. See Pub. L. 104-150. There is also no ``affirmative
showing of an intention to repeal'' the CZMA federal consistency
provision in whole or in part. See Southern Pacific Transportation Co.,
v. California Coastal Commission, 520 F. Supp. 800, 805 (N.D. CA 1981).
As repeal by implication is not favored, the CZMA must be given effect
so long as the CZMA and NGA are not irreconcilable and the CZMA does
not stand as an obstacle to the objectives of the NGA. Id. Moreover,
the Energy Policy Act clearly states that State CZMA review is not
affected even though FERC has been given preemptive authority over
State regulation under the Natural Gas Act.
As for the State policies, NOAA must approve State enforceable
policies. NOAA will not approve State policies that on their face
contain requirements that are preempted by Federal law. For example,
the State of North Carolina sought to regulate low level aircraft in
flight by adopting policies that described specific standards preempted
by Federal law administered by the Federal Aviation Administration. The
State sought to impose minimum altitude and decibel levels, and other
overflight restrictions. NOAA denied the State's request to incorporate
the policies into the North Carolina CMP because the policies were, on
their face,
[[Page 824]]
preempted. Thus, North Carolina could not use the policies for CZMA
federal consistency purposes.
So long as a State's enforceable policies do not specifically
describe preempted restrictions the State may apply them through the
federal consistency process to interstate pipeline projects. For
example, a State may implement enforceable wetland protection policies,
but not impermissible regulations for interstate pipeline safety. If a
pipeline were to impact State wetlands, then the applicant must be
consistent with the State wetland policies. Thus, mitigation may be
required or, if mitigation is not available, then the siting of a
pipeline may need to be altered, not because the State is attempting to
regulate the pipeline, but to address coastal effects through the
federal CZMA scheme.
In another case before the Surface Transportation Board (STB) for
the abandonment of a railroad line in Massachusetts, NOAA found, and
the STB concurred, that the CZMA process and the applicant's compliance
with the State's enforceable policies was not preempted by the
Interstate Commerce Commission Termination Act of 1995 (ICCTA) (49
U.S.C. 701, 10501). Pursuant to the ICCTA, the STB has exclusive,
preemptive, jurisdiction over the construction, acquisition, operation,
abandonment or discontinuance of spur, industrial, team, switching, or
side tracks, or facilities, even if the tracks are located, or intended
to be located, entirely in one State. See City of Auburn v. The Surface
Transportation Board, 154 F.3d 1025, 1030-1032 (9th Cir. 1998).
Nevertheless, the STB has consistently determined that the exercise of
State and local government traditional police power functions to
protect the health and safety of their citizens may not be preempted if
there is minimal impact on interstate commerce and the regulatory
action is taken in a non-discriminatory manner. Thus, NOAA and the STB
determined that Massachusetts could exercise its CZMA consistency
authority in a manner compatible with the ICCTA if the application of
the State CMP enforceable policies would not impermissibly burden
interstate commerce, restrict the railroad from conducting its
necessary operations or otherwise discriminate against railroad activities.
Likewise, under the Federal Power Act, FERC has preemptive
jurisdiction over the licensing of hydro-electric facilities. However,
applicants for FERC hydroelectric licenses must be consistent with the
affected coastal State's federally approved enforceable policies. See
e.g., Mountain Rhythm Resources v. FERC, 302 F.3d 958 (9th Cir. Aug.
23, 2002); FERC, Standard Branch Procedure SBP-4-16 (March 1992). In
Mountain Rhythm, the Court found that there are ``federal and state law
concerns for protecting and managing coastline that Congress has
declared to be limitations on FERC's power. Specifically, the [CZMA]
provides that if a hydropower project is located in a state's coastal
zone, then FERC cannot issue the license unless the state's applicable
agency concurs that the proposed project is consistent with the state's
Coastal Zone Management Program * * * .'' Mountain Rhythm at 960. The
Court also found that implementation of the State's permit program,
through the CZMA federal consistency process, does not ``strip[]
the
federal government of its exclusive grant of authority to issue
licenses for hydropower projects. But the [State]
permit is not a power
permit; it is merely part of the consistency evaluation process invoked
by the responsible state agency, DOE, in exercising its authority to
assess consistency with state coastal zone management that Congress has
granted to the states in the CZMA.'' Mountain Rhythm at 967. The Court
further elaborated that the State's ``permit does not in any way
supplant FERC's authority, but is a confirmation that a proposed
project complies with state waterway zoning regulations. FERC remains
the only authority that can issue power licenses. And with the
deliberate concurrence of the Secretary of Commerce about consistency
with the CZMA, FERC may do this even over state objection. There has
been in this case no improper interference by state or local government
with federal authority.'' Id.
The Ninth Circuit's statements are consistent with CZMA section
307(e), which provides that the CZMA does not diminish either Federal
or State jurisdiction, responsibility, or rights and does not
supersede, modify, or repeal existing Federal law. However, Congress
clearly envisioned that Federal agencies and applicants for federal
authorizations might have to modify their activities to be consistent
with State enforceable policies. For Federal agency activities,
Congress requires Federal agencies to be consistent to the maximum
extent practicable. For federal license or permit activities,
applicants must be fully consistent with the State's federally approved
enforceable policies. Congress initially intended and has subsequently
affirmed that State consistency reviews based on State laws approved by
NOAA would be applied to license or permit activities to be authorized
by other Federal agencies with objectives different from those in the
CZMA. It would be incongruous for Congress to provide a mechanism for
State review of Federal agency activities and federally authorized
activities in one section and then remove that requirement in another
section. Section 307(e) is merely a standard savings clause ensuring
that laws administered by Federal and State agencies are not altered by
the CZMA. S. Rep. No. 753, 92nd Cong., 2d Sess. 20 (1972). Moreover,
Congress, in discussing sections 307(f) and 307(e), stated that these
sections are provided so that Federal agencies are not shielded from
compliance with more stringent environmental requirements of other
Federal or State laws by a finding that it is consistent to the maximum
extent practicable with the CZMA. 136 Cong. Rec. 8077 (Sep. 26, 1990).
So long as State policies do not include specific preempted
restrictions and a State's policies are implemented in a manner
contemplated by the CZMA, then the State is acting properly. See
Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 394-395 (1987) (``While
the CZMA states a national policy in favor of coastal zone management,
it does not on its face expand state authority to regulate in ways that
would otherwise be invalid under the Commerce Clause'').
The CZMA mandates that the Secretary conduct an ``appeal,'' to
establish ``that the activity is consistent with the objectives of this
chapter or is otherwise necessary in the interest of national
security,'' but says nothing about reviewing the substantive basis of
the State's decision. This statutory standard for the Secretary's
review demands a de novo review, a new review, of the activity, even
though the State found it objectionable. If, for purposes of interstate
pipelines, an alternative route considered by FERC, or not considered
by FERC (e.g., an alternative route is explored after the FERC process,
but before completion of the CZMA process), is found to meet CZMA
objectives and is reasonable and available (including a State
determination that the alternative is consistent with the State's
program), and the Secretary then overrides the State's objection, then
the Secretary is fulfilling the duties prescribed by Congress in the
CZMA to balance the State-Federal-private interests within the
objectives of the CZMA.
Comment 109. The regulations should maintain the Secretary's
discretion as to the length of time needed for issuing a judicious
decision. Any effort to force
[[Page 825]]
that period into a shorter time period may encourage additional
litigation (thereby lengthening the process), if an appellant or a
State believes its interests were not adequately considered.
NOAA Response to Comment 109. As described in the explanation, NOAA
believes that the appeals can be processed in a more efficient manner
and now has 160 days in which to develop the decision record.
Comment 110. The State respects the need for certainty in the
override process and believes that these proposals reasonably
accommodate the needs of the parties. The State does not oppose these
changes.
NOAA Response to Comment 110. NOAA notes this comment.
Comment 111. Section 930.130(a)(2)(ii), purporting to expedite
other environmental analyses conducted pursuant to NEPA or the
Endangered Species Act, in connection with any extension of the
proposed 270-day period for the decision record in a coastal
consistency appeal is unnecessary, may infringe upon other coordinated
agency processes, and worse, gives the impression that review pursuant
to these two environmental statutes can and should be hurried along as
interfering with the consistency review process. NOAA should delete the
phrase ``on an expedited basis.''
NOAA Response to Comment 111. One of the oft-stated goals of CZMA
review is ``coordination and simplification of procedures to ensure
expedited governmental decisionmaking for the management of coastal
resources.'' CZMA section 303(2)(G). This applies to State CZMA
decisions and the Secretary's appeal decisions. To that end, to the
extent a NEPA or ESA document being prepared by the authorizing Federal
agency for its permit decision is not complete and the Secretary
determines the document is needed, then the Federal agencies should
endeavor to complete the document in as timely a manner as possible.
Comment 112. Section 930.130(a)(2)(ii) limits the Secretary's
ability to consider important information that may not be included in
NEPA documents or Biological Opinions. The Secretary's ability to make
a fully informed decision could be compromised by limiting the
Secretary's options in this way. The Secretary should be allowed to
extend closure of the record to include any and all relevant information.
NOAA Response to Comment 112. The Secretary needs only that
information he determines is relevant to the CZMA appeal standard. That
information will be obtained during the period to develop the decision
record. The changes to Sec. 930.130 and the rest of subpart H provide
sufficient time to develop a decision record and to issue timely decisions.
Subpart I--Interstate Consistency
Comment 113. We question the legal authority for NOAA to establish
interstate consistency review requirements. The proposal response to
comments that States that the procedure finds support in the ``effects
tests'' is not consistent with the legislative history as we view it,
and does not address the fundamental constitutional infirmities
concerning a State's ability to review activities taking place wholly
within the boundaries of another State.
NOAA Response to Comment 113. NOAA continues to rely on the statute
and its legislative history for the addition of the Interstate
consistency regulations in 2000. NOAA's view is summarized in the
preamble to the 2000 rule at 65 FR 77125, 77129-77133, 77152-77153
(Dec. 8, 2000).
VI. Miscellaneous Rulemaking Requirements
Executive Order 12372: Intergovernmental Review
This program is subject to Executive Order 12372.
Executive Order 13132: Federalism Assessment
NOAA concluded that this regulatory action is consistent with
federalism principles, criteria, and requirements stated in Executive
Order 13132. The changes in the federal consistency regulations will
facilitate Federal agency coordination with coastal States, and ensure
that federal actions affecting any coastal use or resource are
consistent with the enforceable policies of approved State coastal
management programs. The CZMA and these revised implementing
regulations promote the principles of federalism articulated in
Executive Order 13132 by granting the States a qualified right to
review certain federal actions that affect the land and water uses or
natural resources of State coastal zones. Congress partially waived the
Federal Government's supremacy over State law when it created the CZMA.
Section 307 of the CZMA and NOAA's implementing regulations effectively
balance responsibilities between Federal agencies and State agencies
whenever Federal agencies propose activities or applicants for a
required federal license or permit propose to undertake activities
affecting State coastal uses or resources. Through the CZMA, Federal
agencies are required to carry out their activities in a manner that is
consistent to the maximum extent practicable with federally approved
State management programs, and licensees and permittees are required to
be fully consistent with the State programs. The CZMA and these
implementing regulations, rather than preempting a State, provide a
mechanism for it to object to federal actions that are not consistent
with the State's management program. A State objection prevents the
issuance of the federal permit or license, unless the Secretary of
Commerce overrides the objection. Because the CZMA and these
regulations promote the principles of federalism and enhance State
authorities, no federalism assessment need be prepared.
Executive Order 12866: Regulatory Planning and Review
This regulatory action is significant for purposes of Executive
Order 12866.
Executive Order 13211
Executive Order 13211 requires that agencies prepare and submit a
``Statement of Energy Effects'' to the Office of Management and Budget
for certain actions. These actions include regulations which have been
designated as ``significant'' under Executive Order 12866 and are
likely to have a ``significant adverse effect'' on the supply,
distribution, or use of energy. This action will not result in any
adverse effect upon the supply, distribution, or use of energy. Rather,
this regulation implements recommendations contained in the Energy
Report, and serves to improve Federal-State coordination of actions
affecting the coastal zone. The rule makes only minor, clarifying
changes to existing regulations. To the extent these changes impact
energy supply, distribution, or use, they should result in positive
effects, by improving the clarity, transparency and predictability of
NOAA's CZMA regulations.
Administrative Procedure Act
Pursuant to authority at 5 U.S.C. 553(b)(B), NOAA waives for good
cause the requirement to provide prior notice and an opportunity for
public comment on the provisions of this final rule that implement,
verbatim, specific provisions of the Energy Policy Act of 2005. Such
procedures are unnecessary as NOAA must comply with the law as enacted.
Additional provisions of this final rule not explicitly contained in
the Energy Policy Act, though necessary for NOAA's compliance with that
Act, concern matters addressed in the
[[Page 826]]
proposed rule and by public comment in response to that rule. As such,
these provisions are within the scope of the notice previously provided
and additional notice and comment are not required.
Regulatory Flexibility Act
The Chief Counsel for Regulation for the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration, when this rule was proposed, that the rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. This rule only makes minor changes to existing
regulations. The existing regulations do not have a significant
economic impact on a substantial number of small entities and, thus,
these clarifying changes will not result in any additional economic
impact on affected entities. No comments were received regarding the
certification. Accordingly, the basis for the certification has not
changed and neither an initial nor final Regulatory Flexibility
Analysis was not prepared.
Paperwork Reduction Act
This rule contains no additional collection-of-information
requirements subject to review and approval by OMB under the Paperwork
Reduction Act (PRA).
National Environmental Policy Act
NOAA has concluded that this regulatory action does not have the
potential to pose significant impacts on the quality of the human
environment. Further, NOAA has concluded that this rule will not result
in any changes to the human environment. As defined in sections 5.05
and 6.03c3(i) of NAO 216-6, this action is of limited scope, of a
technical and procedural nature and any environmental effects are too
speculative or conjectural to lend themselves to meaningful analysis.
Thus, this rule is categorically excluded from further review pursuant
to NEPA.
List of Subjects in 15 CFR Part 930
Administrative practice and procedure, Coastal zone, Reporting and
recordkeeping requirements.
Dated: December 21, 2005.
Craig McLean,
Acting Deputy Assistant Administrator for Ocean Services and Coastal
Zone Management.
? For the reasons stated in the preamble, NOAA amends 15 CFR part 930 as
follows:
PART 930--FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT PROGRAMS
? 1. The authority citation continues to read as follows:
Authority: 16 U.S.C. 1451 et. seq.
? 2. Section 930.1 is amended by revising paragraphs (b) and (c) to read
as follows:
Sec. 930.1 Overall objectives.
* * * * *
(b) To implement the federal consistency requirement in a manner
which strikes a balance between the need to ensure consistency for
federal actions affecting any coastal use or resource with the
enforceable policies of approved management programs and the importance
of federal activities (the term ``federal action'' includes all types
of activities subject to the federal consistency requirement under
subparts C, D, E, F and I of this part.);
(c) To provide flexible procedures which foster intergovernmental
cooperation and minimize duplicative effort and unnecessary delay,
while making certain that the objectives of the federal consistency
requirement of the Act are satisfied. Federal agencies, State agencies,
and applicants should coordinate as early as possible in developing a
proposed federal action, and may mutually agree to intergovernmental
coordination efforts to meet the requirements of these regulations,
provided that public participation requirements are met and applicable
State management program enforceable policies are considered. State
agencies should participate in the administrative processes of federal
agencies concerning federal actions that may be subject to state review
under subparts C, D, E, F and I of this part.
* * * * *
? 3. Section 930.10 is amended by revising the following entry in the
table to read as follows:
Sec. 930.10 Index to definitions for terms defined in part 930.
------------------------------------------------------------------------
Term Section
------------------------------------------------------------------------
* * * * *
Failure substantially to comply with an OCS plan........... 930.85(c).
* * * * *
------------------------------------------------------------------------
? 4. Section 930.11 is amended by revising the first sentence of
paragraph (g) to read as follows:
Sec. 930.11 Definitions.
* * * * *
(g) Effect on any coastal use or resource (coastal effect). The
term ``effect on any coastal use or resource'' means any reasonably
foreseeable effect on any coastal use or resource resulting from a
Federal agency activity or federal license or permit activity
(including all types of activities subject to the federal consistency
requirement under subparts C, D, E, F and I of this part.) * * *
* * * * *
? 5. Section 930.31 is amended by revising paragraphs (a) and (d) to read
as follows:
Sec. 930.31 Federal agency activity.
(a) The term ``Federal agency activity'' means any functions
performed by or on behalf of a Federal agency in the exercise of its
statutory responsibilities. The term ``Federal agency activity''
includes a range of activities where a Federal agency makes a proposal
for action initiating an activity or series of activities when coastal
effects are reasonably foreseeable, e.g., a Federal agency's proposal
to physically alter coastal resources, a plan that is used to direct
future agency actions, a proposed rulemaking that alters uses of the
coastal zone. ``Federal agency activity'' does not include the issuance
of a federal license or permit to an applicant or person (see subparts
D and E of this part) or the granting of federal assistance to an
applicant agency (see subpart F of this part).
* * * * *
(d) A general permit proposed by a Federal agency is subject to
this subpart if the general permit does not involve case-by-case or
individual issuance of a license or permit by a Federal agency. When
proposing a general permit, a Federal agency shall provide a
consistency determination to the relevant management programs and
request that the State agency(ies) provide the Federal agency with
review, and if necessary, conditions, based on specific enforceable
policies, that would permit the State agency to concur with the Federal
agency's consistency determination. State agency concurrence shall
remove the need for the State agency to review individual uses of the
general permit for consistency with the enforceable policies of
management programs. Federal agencies shall, pursuant to the consistent
to the maximum extent practicable standard in Sec. 930.32, incorporate
State conditions into the general permit. If the State agency's
conditions are not incorporated into the general permit or a State
agency objects to the general permit, then the Federal agency shall
notify potential users of the
[[Page 827]]
general permit that the general permit is not available for use in that
State unless an applicant under subpart D of this part or a person
under subpart E of this part, who wants to use the general permit in
that State provides the State agency with a consistency certification
under subpart D of this part and the State agency concurs. When subpart
D or E of this part applies, all provisions of the relevant subpart apply.
* * * * *
? 6. Section 930.35 is amended by redesignating paragraph (d) as
paragraph (e) and by adding a new paragraph (d) to read as follows:
Sec. 930.35 Negative determinations for proposed activities.
* * * * *
(d) General Negative Determinations. In cases where Federal
agencies will be performing a repetitive activity that a Federal agency
determines will not have reasonably foreseeable coastal effects,
whether performed separately or cumulatively, a Federal agency may
provide a State agency(ies) with a general negative determination,
thereby avoiding the necessity of issuing separate negative
determinations for each occurrence of the activity. A general negative
determination must adhere to all requirements for negative
determinations under Sec. 930.35. In addition, a general negative
determination must describe in detail the activity covered by the
general negative determination and the expected number of occurrences
of the activity over a specific time period. If a Federal agency issues
a general negative determination, it may periodically assess whether
the general negative determination is still applicable.
* * * * *
? 7. Section 930.37 is amended by adding a new third sentence to read as
follows:
Sec. 930.37 Consistency determinations and National Environmental
Policy Act (NEPA) requirements.
* * * State agencies shall not require Federal agencies to submit
NEPA documents as information required pursuant to Sec. 930.39. * * *
? 8. Section 930.41 is amended by revising paragraph (a) to read as
follows:
Sec. 930.41 State agency response.
(a) A State agency shall inform the Federal agency of its
concurrence with or objection to the Federal agency's consistency
determination at the earliest practicable time, after providing for
public participation in the State agency's review of the consistency
determination. The Federal agency may presume State agency concurrence
if the State agency's response is not received within 60 days from
receipt of the Federal agency's consistency determination and
supporting information required by Sec. 930.39(a). The 60-day review
period begins when the State agency receives the consistency
determination and supporting information required by Sec. 930.39(a).
If the information required by Sec. 930.39(a) is not included with the
determination, the State agency shall notify the Federal agency in
writing within 14 days of receiving the determination and supporting
information that the 60-day review period has not begun, identify
missing information required by Sec. 930.39(a), and that the 60-day
review period will begin when the missing information is received by
the State agency. If the State agency has not notified the Federal
agency that information required by Sec. 930.39(a) is missing within
the 14 day notification period, then the 60-day review period shall
begin on the date the State agency received the consistency
determination and accompanying information. The State agency's
determination of whether the information required by Sec. 930.39(a) is
complete is not a substantive review of the adequacy of the information
provided. Thus, if a Federal agency has submitted a consistency
determination and information required by Sec. 930.39(a), then the
State agency shall not assert that the 60-day review period has not
begun because the information contained in the items required by Sec.
930.39(a) is substantively deficient. The failure to submit information
not required by 930.39(a) shall not be a basis for asserting that the
60-day review period has not begun.
* * * * *
? 9. Section 930.51 is amended by revising paragraph (a) and paragraph
(e) to read as follows:
Sec. 930.51 Federal license or permit.
(a) The term ``federal license or permit'' means any authorization
that an applicant is required by law to obtain in order to conduct
activities affecting any land or water use or natural resource of the
coastal zone and that any Federal agency is empowered to issue to an
applicant. The term ``federal license or permit'' does not include OCS
plans, and federal license or permit activities described in detail in
OCS plans, which are subject to subpart E of this part, or leases
issued pursuant to lease sales conducted by a Federal agency (e.g.,
outer continental shelf (OCS) oil and gas lease sales conducted by the
Minerals Management Service or oil and gas lease sales conducted by the
Bureau of Land Management). Lease sales conducted by a Federal agency
are Federal agency activities under subpart C of this part.
* * * * *
(e) The determination of substantially different coastal effects
under paragraphs (b)(3), and (c) of this section is made on a case-by-
case basis by the Federal agency after consulting with the State
agency, and applicant. The Federal agency shall give considerable
weight to the opinion of the State agency. The terms ``major
amendment,'' ``renewals'' and ``substantially different'' shall be
construed broadly to ensure that the State agency has the opportunity
to review activities and coastal effects not previously reviewed.
* * * * *
? 10. Section 930.58 is amended by revising paragraph (a)(1) and the
third sentence of paragraph (a)(2) and adding a new fourth sentence and
a new fifth sentence in paragraph (a)(2) to read as follows:
Sec. 930.58 Necessary data and information.
(a) * * *
(1) A copy of the application for the federal license or permit and
(i) All material relevant to a State's management program provided
to the Federal agency in support of the application; and
(ii) To the extent not included in paragraphs (a)(1) or (a)(1)(i)
of this section, a detailed description of the proposed activity, its
associated facilities, the coastal effects, and any other information
relied upon by the applicant to make its certification. Maps, diagrams,
and technical data shall be submitted when a written description alone
will not adequately describe the proposal;
(2) * * * Necessary data and information may include completed
State or local government permit applications which are required for
the proposed activity, but shall not include the issued State or local
permits. NEPA documents shall not be considered necessary data and
information when a Federal statute requires a Federal agency to
initiate the CZMA federal consistency review prior to its completion of
NEPA compliance. States shall not require that the consistency
certification and/or the necessary data and information be included in
NEPA documents. * * *
* * * * *
? 11. Section 930.60 is revised to read as follows:
[[Page 828]]
Sec. 930.60 Commencement of State agency review.
(a) The State agency's six-month review period (see Sec.
930.62(a)) of an applicant's consistency certification begins on the
date the State agency receives the consistency certification required
by Sec. 930.57 and all the necessary data and information required by
Sec. 930.58(a).
(1) If an applicant fails to submit a consistency certification,
the State agency shall notify the applicant and the Federal agency,
within 30 days of receipt of the incomplete submission, that a
consistency certification satisfying Sec. 930.57 was not received and
that the State agency's six-month review period will commence on the
date of receipt of the missing certification, subject to paragraph
(a)(2) of this section.
(2) If an applicant fails to submit all necessary data and
information required by Sec. 930.58(a), the State agency shall notify
the applicant and the Federal agency, within 30 days of receipt of the
incomplete submission, that necessary data and information described in
Sec. 930.58(a) was not received and that the State agency's six-month
review period will commence on the date of receipt of the missing
necessary data and information, subject to the requirement in paragraph
(a) of this section that the applicant has also submitted a consistency
certification. The State agency may waive the requirement in paragraph
(a) of this section that all necessary data and information described
in Sec. 930.58(a) be submitted before commencement of the State
agency's six-month consistency review. In the event of such a waiver,
the requirements of Sec. 930.58(a) must be satisfied prior to the end
of the six-month consistency review period or the State agency may
object to the consistency certification for insufficient information.
(3) Within 30 days of receipt of the consistency certification and/
or necessary data and information that was deemed missing, pursuant to
paragraphs (a)(1) or (2) of this section, the State agency shall notify
the applicant and Federal agency that the certification and necessary
data and information required pursuant to Sec. 930.58 is complete, the
date the certification and/or necessary data and information deemed
missing was received, and, that the State agency's consistency review
commenced on the date of receipt. In the event of a State waiver under
paragraph (a)(2) of this section, receipt of the necessary data and
information deemed missing shall not alter the date the consistency
review period commenced.
(b) State agencies and applicants (and persons under subpart E of
this part) may mutually agree in writing to stay the six-month
consistency review period. Such an agreement shall be in writing and
state a specific date on when the stay will end. The State agency shall
provide a copy of the written agreement to the Federal agency and the
Federal agency shall not presume State agency concurrence with an
applicant's consistency certification when such a written agreement to
stay the six-month consistency review period is in effect. The State
agency shall not stop, stay, or otherwise alter the consistency review
period without such a written agreement with the applicant.
(c) The State agency's determination that a certification and
necessary data and information under paragraph (a) of this section is
complete is not a substantive review of the adequacy of the information
received. If an applicant has submitted all necessary data and
information required by Sec. 930.58, then a State agency's or Federal
agency's assertion that the submitted information is substantively
deficient, or a State agency's or Federal agency's request for
clarification of the information provided, or information or data
requested that is in addition to that required by Sec. 930.58 shall
not extend the date of commencement of State agency review.
? 11a. Section 930.46 is amended by adding a new paragraph (a)(3) to read
as follows:
Sec. 930.46 Supplemental coordination for proposed activities.
(a) * * *
(3) Substantial changes were made to the activity during the period
of the State agency's initial review and the State agency did not
receive notice of the substantial changes during its review period, and
these changes are relevant to management program enforceable policies
and/or affect coastal uses or resources.
* * * * *
? 12. Section 930.63 is amended by revising the fourth sentence in
paragraph (d) to read as follows:
Sec. 930.63 State agency objection to a consistency certification.
* * * * *
(d) * * * See Sec. 930.121(c) for further details regarding
alternatives for appeals under subpart H of this part.
* * * * *
? 12a. Section 930.66 is amended by adding a new paragraph (a)(3) to read
as follows:
Sec. 930.66 Supplemental coordination for proposed activities.
(a) * * *
(3) Substantial changes were made to the activity during the period
of the State agency's initial review and the State agency did not
receive notice of the substantial changes during its review period, and
these changes are relevant to management program enforceable policies
and/or affect coastal uses or resources.
* * * * *
? 13. Section 930.76 is amended by removing paragraph (c), redesignating
paragraph (d) as paragraph (c), and revising paragraphs (a) and (b) as
follows:
Sec. 930.76 Submission of an OCS plan, necessary data and information
and consistency certification.
(a) Any person submitting any OCS plan to the Secretary of the
Interior or designee shall submit to the Secretary of the Interior or
designee:
(1) A copy of the OCS plan;
(2) The consistency certification;
(3) The necessary data and information required pursuant to Sec.
930.58; and
(4) The information submitted pursuant to the Department of the
Interior's OCS operating regulations (see 30 CFR 250.203 and 250.204)
and OCS information program regulations (see 30 CFR part 252).
(b) The Secretary of the Interior or designee shall furnish the
State agency with a copy of the information submitted under paragraph
(a) of this section (excluding confidential and proprietary information).
* * * * *
? 14. Section 930.77 is amended by revising paragraph (a) to read as follows:
Sec. 930.77 Commencement of State agency review and public notice.
(a)(1) Except as provided in Sec. 930.60(a), State agency review
of the person's consistency certification begins at the time the State
agency receives the certification and information required pursuant to
Sec. 930.76(a) and (b). If a person has submitted the documents
required by Sec. 930.76(a) and (b), then a State agency's assertion
that the information contained in the submitted documents is
substantively deficient, or a State agency's request for clarification
of the information provided, or information and data in addition to
that required by Sec. 930.76 shall not delay or otherwise change the
date on which State agency review begins.
[[Page 829]]
(2) To assess consistency, the State agency shall use the
information submitted pursuant to Sec. 930.76. If a State agency wants
to augment the necessary data and information required by Sec. 930.76
to start the six-month review period for OCS plans, then the State can
only do so if it amends its management program to include the
information under Sec. 930.58(a)(2).
(3) After the State agency's review begins, if the State agency
requests additional information, it shall describe in writing to the
person and to the Secretary of the Interior or its designee the reasons
why the information provided under Sec. 930.76 is not adequate to
complete its review, and the nature of the information requested and
the necessity of having such information to determine consistency with
the enforceable policies of the management program. The State agency
shall make its request for additional information no later than three
months after commencement of the State agency's review period. The
State agency shall not request additional information after the three-
month notification period described in Sec. 930.78(a). However, the
State agency may request additional information after the three-month
notification period if the person or the Secretary of the Interior or
its designee changes the OCS plan after the three-month notification
period such that the plan describes activities or coastal effects not
previously described and for which information was not previously
provided pursuant to Sec. 930.76.
* * * * *
? 15. Section 930.82 is revised to read as follows:
Sec. 930.82 Amended OCS plans.
If the State agency objects to the person's OCS plan consistency
certification, and/or if, pursuant to subpart H of this part, the
Secretary does not determine that each of the objected to federal
license or permit activities described in detail in such plan is
consistent with the objectives or purposes of the Act, or is necessary
in the interest of national security, and if the person still intends
to conduct the activities described in the OCS plan, the person shall
submit an amended plan to the Secretary of the Interior or designee
along with a consistency certification and data and information
necessary to support the amended consistency certification. The data
and information shall specifically describe modifications made to the
original OCS plan, and the manner in which such modifications will
ensure that all of the proposed federal license or permit activities
described in detail in the amended plan will be conducted in a manner
consistent with the management program. When satisfied that the person
has met the requirements of the OCSLA and this subpart, the Secretary
of the Interior or designee shall furnish the State agency with a copy
of the amended OCS plan (excluding confidential and proprietary
information), necessary data and information and consistency certification.
? 16. Section 930.85 is amended by revising the section heading and
removing paragraph (d) and revising paragraph (b) and paragraph (c) to
read as follows:
Sec. 930.85 Failure to substantially comply with an approved OCS plan.
* * * * *
(b) If a State agency claims that a person is failing to
substantially comply with an approved OCS plan subject to the
requirements of this subpart, and such failure allegedly involves the
conduct of activities affecting any coastal use or resource in a manner
that is not consistent with the approved management program, the State
agency shall transmit its claim to the Minerals Management Service
region involved. 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.
(c) If a person fails to substantially comply with an approved OCS
plan, as determined by Minerals Management Service, pursuant to the
Outer Continental Shelf Lands Act and applicable regulations, the
person shall come into compliance with the approved plan or shall
submit an amendment to such plan or a new plan to Minerals Management
Service. When satisfied that the person has met the requirements of the
OCSLA and this subpart, and the Secretary of the Interior or designee
has made the determination required under 30 CFR 250.203(n)(2) or Sec.
250.204(q)(2), as applicable, the Secretary of the Interior or designee
shall furnish the State agency with a copy of the amended OCS plan
(excluding proprietary information), necessary data and information and
consistency certification. Sections 930.82 through 930.84 shall apply
to further State agency review of the consistency certification for the
amended or new plan.
? 16a. Section 930.101 is amended by adding a new paragraph (a)(3) to
read as follows:
Sec. 930.101 Supplemental coordination for proposed activities.
(a) * * *
(3) Substantial changes were made to the activity during the period
of the State agency's initial review and the State agency did not
receive notice of the substantial changes during its review period, and
these changes are relevant to management program enforceable policies
and/or affect coastal uses or resources.
* * * * *
? 17. Section 930.121 is amended by revising paragraph (c) to read as
follows:
Sec. 930.121 Consistent with the objectives or purposes of the Act.
* * * * *
(c) There is no reasonable alternative available which would permit
the activity to be conducted in a manner consistent with the
enforceable policies of the management program. The Secretary may
consider but is not limited to considering previous appeal decisions,
alternatives described in state objection letters and alternatives and
other information submitted during the appeal. The Secretary shall not
consider an alternative unless the State agency submits a statement, in
a brief or other supporting material, to the Secretary that the
alternative would permit the activity to be conducted in a manner
consistent with the enforceable policies of the management program.
? 18. Section 930.123 is amended by revising the section heading and
adding new paragraphs (c), (d) and (e) as follows:
Sec. 930.123 Definitions.
* * * * *
(c) The term ``energy project'' means projects related to the
siting, construction, expansion, or operation of any facility designed
to explore, develop, produce, transmit or transport energy or energy
resources that are subject to review by a coastal State under subparts
D, E, F or I of this part.
(d) The term ``consolidated record'' means 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.
(e) The term ``lead Federal permitting agency'' means the Federal
agency required to: issue a federal license or permit under subparts D
or I of this part; approve an OCS plan under subpart E
[[Page 830]]
of this part; or provide federal financial assistance under subparts F
or I of this part for an energy project.
? 19. Section 930.125 is amended by redesignating paragraphs (b) through
(e) as paragraphs (c) through (f), by adding a new paragraph (b) and by
revising the third and fourth sentences in redesignated paragraph (f)
as follows:
Sec. 930.125 Notice of appeal and application fee to the Secretary.
* * * * *
(b) The appellant's notice of appeal shall include a statement
explaining the appellant's basis for appeal of the State agency's
objection under Sec. 923.121 of this title, including any procedural
arguments pursuant to Sec. 930.129(b). Bases for appeal (including
procedural arguments) not identified in the appellant's notice of
appeal shall not be considered by the Secretary.
* * * * *
(f) * * * If the Secretary denies a request for a waiver and the
appellant wishes to continue with the appeal, the appellant shall
submit the appropriate fees to the Secretary within 10 days of receipt
of the Secretary's denial. If the fees are not received by the 10th
day, then the Secretary shall dismiss the appeal.
? 20. Section 930.127 is revised to read as follows:
Sec. 930.127 Briefs and supporting materials.
(a) Within 30 days of submitting the notice of appeal, as specified
in Sec. 930.125, the appellant shall submit to the Secretary its
principal brief accompanied by the appendix described in paragraph (c)
of this section. Within 60 days of the appellant's filing of the notice
of appeal, the State agency shall submit to the Secretary its principal
brief accompanied by a supplemental appendix, if any, described in
paragraph (c) of this section. Not later than 20 days after appellant's
receipt of the State agency's brief, appellant may submit to the
Secretary a reply brief accompanied by a supplemental appendix, if any,
described in paragraph (c) of this section.
(b) A principal brief shall not exceed 30 double-spaced pages;
appellant's reply brief shall not exceed 15 double-spaced pages. Any
table of contents, table of citations, or certifications of mailing
and/or service do not count toward the page limitations.
(c) The appellant must prepare and file an appendix with its brief
containing:
(1) Its consistency certification;
(2) The State agency's objection; and
(3) All such supporting documentation and material as the appellant
deems necessary for consideration by the Secretary. The State agency
(or appellant on reply) shall cite to appellant's appendix or may file
a supplemental appendix to include additional documentation and
material as the State agency (or appellant on reply) deems necessary
for consideration by the Secretary that was not included in appellant's
appendix (or the State agency's supplemental appendix). The parties are
encouraged to discuss the contents of appellant's appendix in order to
include in the appendix as much of the supporting documentation and
material as any party deems necessary for consideration by the
Secretary. In an appeal for an energy project, supporting documentation
and material shall be limited to the parts of the consolidated record
described in paragraph (i)(1) of this section to which the appellant or
the State agency wishes to direct the Secretary's attention.
(d)(1) Both the appellant and State agency shall send four copies
of their briefs and supporting materials to the Office of General
Counsel for Ocean Services (GCOS), NOAA, 1305 East West Highway, Room
6111 SSMC4, Silver Spring, Maryland 20910. One copy must be in an
electronic format compatible (to the extent practicable) with the
website maintained by the Secretary to provide public information
concerning appeals under the CZMA.
(2) The appellant and State agency shall serve on each other at
least one copy of their briefs, supporting materials, and all requests
and communications submitted to the Secretary, at the same time that
materials are submitted to the Secretary.
(3) Each submission to the Secretary shall be accompanied by a
certification of mailing and/or service on the other party. Service may
be done by mail or hand delivery. Materials or briefs submitted to the
Secretary not in compliance with this subpart may be disregarded and
not entered into the Secretary's decision record of the appeal.
(e)(1) The Secretary has broad authority to implement procedures
governing the consistency appeal process to ensure efficiency and
fairness to all parties. The appeal decision record is composed of the
briefs and supporting materials submitted by the State agency and
appellant, public comments and the comments, if any, submitted by
interested Federal agencies. As noted in Sec. 930.128(c)(1), the
Secretary gives deference to the views of interested Federal agencies
when commenting in their areas of expertise and takes notice of
relevant administrative decisions, including licenses or permits,
related to an appellant's proposed activity when submitted to the
appeal decision record. The Secretary determines the content of the
appeal decision record. The Secretary may determine, on the Secretary's
own initiative, that additional information is necessary to the
Secretary's decision, including documents prepared by Federal agencies
pursuant to the National Environmental Policy Act (42 U.S.C. 4321 et
seq.) and the Endangered Species Act (16 U.S.C. 1531 et seq.), and may
request such information.
(2) To promote efficient use of time and resources, the Secretary
may, upon the Secretary's own initiative, require the appellant and the
State agency to submit briefs and supporting materials relevant only to
procedural or jurisdictional issues presented in the Notice of Appeal
or identified by the Secretary. Following a decision of the procedural
or jurisdictional issues, the Secretary may require briefs on
substantive issues raised by the appeal if necessary.
(3) The Secretary may require the appellant and the State agency to
submit briefs in addition to those described in paragraphs (a) and (e)
of this section as necessary.
(4) Any briefs not requested or required by the Secretary may be
disregarded and not entered into the Secretary's decision record of the
appeal.
(f) The appellant bears the burden of submitting evidence in
support of its appeal and the burden of persuasion.
(g) The Secretary may extend the time for submission, and length,
of briefs and supporting materials for good cause.
(h) Where a State agency objection is based in whole or in part on
a lack of information, the Secretary shall limit the record on appeal
to information previously submitted to the State agency and relevant
comments thereon, except as provided for in Sec. 930.129(b) and (c).
(i) Appeal Decision Record for Energy Projects. The provisions of
this paragraph apply only to appeals for energy projects.
(1) The Secretary shall use the consolidated record maintained by
the lead Federal permitting agency as the initial record for an appeal
under this subpart for energy projects.
(2) The appellant's notice of appeal required by Sec. 930.125(a)
and (b) must be accompanied by four copies of the consolidated record
maintained by the lead Federal permitting agency. One copy of the
consolidated record must be in an electronic format compatible (to the
extent practicable) with the website
[[Page 831]]
maintained by the Secretary to provide public information concerning
appeals under the CZMA. Notwithstanding Sec. 930.125(e), the Secretary
may extend the time for filing a notice of appeal in connection with an
energy project for good cause shown to allow appellant additional time
to prepare the consolidated record for filing.
(3) The appellant and the State agency shall submit briefs as
required by paragraphs (a), (b) and (c) of this section.
(4) Supplemental information may be accepted and included in the
decision record by the Secretary only as allowed by Sec. 930.130(a)(2).
? 21. Section 930.128 is revised to read as follows:
Sec. 930.128 Public notice, comment period, and public hearing.
(a) The Secretary shall provide public notice of the appeal within
30 days after the receipt of the Notice of Appeal by publishing a
Notice in the Federal Register and in a publication of general
circulation in the immediate area of the coastal zone likely to be
affected by the proposed activity.
(b) Except in the case of appeals involving energy projects, the
Secretary shall provide a 30-day period for the public and interested
Federal agencies to comment on the appeal. Notice of the public and
Federal agency comment period shall be provided in the Notice required
in paragraph (a) of this section.
(c)(1) The Secretary shall accord greater weight to those Federal
agencies whose comments are within the subject areas of their technical
expertise.
(2) The Secretary may, on the Secretary's own initiative or upon
written request, for good cause shown, reopen the period for Federal
agency comments before the closure of the decision record.
(d) Except in the case of appeals involving energy projects, the
Secretary may hold a public hearing in response to a request or on the
Secretary's own initiative. A request for a public hearing must be
filed with the Secretary within 30 days of the publication of the
Notice in the Federal Register required in paragraph (a) of this
section. If a hearing is held by the Secretary, it shall be noticed in
the Federal Register and guided by the procedures described within
Sec. 930.113. If a hearing is held by the Secretary, the Federal
Register notice for the hearing shall reopen the public and Federal
agency comment period and shall close such comment period 10 days after
the hearing.
? 22. Section 930.129 is amended by revising paragraph (c) and paragraph
(d) to read as follows:
Sec. 930.129 Dismissal, remand, stay, and procedural override.
* * * * *
(c) The Secretary may stay the processing of an appeal in
accordance with Sec. 930.130.
(d) The Secretary may remand an appeal to the State agency for
reconsideration of the project's consistency with the enforceable
policies of the State's management program if significant new
information relevant to the State agency's objection, not previously
provided to the State agency during its consistency review, is
submitted to the Secretary. The Secretary shall determine a time period
for the remand to the State agency. The time period for remand must be
completed within the period described in Sec. 930.130 for the
development of the Secretary's decision record. If the State agency
responds that it still objects to the activity, then the Secretary
shall continue to process the appeal. If the State agency concurs that
the activity is consistent with the enforceable policies of the State's
management program, then the Secretary shall declare the appeal moot
and notify the Federal agency that the activity may be federally approved.
? 23. Section 930.130 is amended by revising paragraphs (a), (b), (c) and
(d) to read as follows:
Sec. 930.130 Closure of the decision record and issuance of decision.
(a)(1) With the exception of paragraph (a)(2) of this section, the
Secretary shall close the decision record not later than 160 days after
the date that the Secretary's Notice of Appeal is published in the
Federal Register under Sec. 930.128(a). After closing the decision
record, the Secretary shall immediately publish a notice in the Federal
Register stating that the decision record has been closed. The notice
shall also state that the Secretary shall not consider additional
information, briefs or comments.
(2) The Secretary may stay the closing of the decision record
during the 160-day period described in paragraph (a)(1) of this section:
(i) For a specific period mutually agreed to in writing by the
appellant and the State agency; or
(ii) As the Secretary determines necessary to receive, on an
expedited basis:
(A) Any supplemental information specifically requested by the
Secretary to complete a consistency review under the Act; or
(B) Any clarifying information submitted by a party to the
proceeding related to information in the consolidated record compiled
by the lead Federal permitting agency.
(3) The Secretary may only stay the 160-day period described in
paragraph (a)(1) of this section for a period not to exceed 60 days.
(b) Not later than 60 days after the date of publication of a
Federal Register notice stating when the decision record for an appeal
has been closed, the Secretary shall issue a decision or publish a
notice in the Federal Register explaining why a decision cannot be
issued at that time. The Secretary shall issue a decision not later
than 15 days after the date of publication of a Federal Register notice
explaining why a decision cannot be issued within the 60-day period.
(c) The decision of the Secretary shall constitute final agency
action for the purposes of the Administrative Procedure Act.
(d) In reviewing an appeal, the Secretary shall find that a
proposed federal license or permit activity, or a federal assistance
activity, is consistent with the objectives or purposes of the Act, or
is necessary in the interest of national security, when the information
in the decision record supports this conclusion.
* * * * *
[FR Doc. 06-11 Filed 1-4-06; 8:45 am]
BILLING CODE 3510-08-P