[Federal Register Volume 61, Number 126 (Friday, June 28, 1996)]
[Rules and Regulations]
[Pages 33802-33819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16402]
[[Page 33801]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Parts 923, 926, 927, 928, 932, and 933
Coastal Zone Management Program Regulations; Final Rule
Federal Register / Vol. 61, No. 126 / Friday, June 28, 1996 / Rules
and Regulations
[[Page 33802]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Parts 923, 926, 927, 928, 932, and 933
[Docket No. 960126015-6165-02]
RIN 0648-AI43
Coastal Zone Management Program 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) is
revising and consolidating its regulations concerning coastal zone
management (CZM) program development, approval, grants and evaluation,
and removing obsolete rules concerning research and technical
assistance. These regulations implement, in part, the Coastal Zone
Management Act, as amended (CZMA). The purpose of this rule is to
remove outdated provisions and to revise and consolidate remaining
provisions. The intended effect of this rule is to make the CZM program
regulations more concise and easier to use.
EFFECTIVE DATE: July 29, 1996.
FOR FURTHER INFORMATION CONTACT:
Roger Eckert, NOAA Office of General Counsel for Ocean Services, at
301-713-2967 (ext. 213), fax: 301-713-4408, e-mail:
[email protected]
SUPPLEMENTARY INFORMATION:
I. Authority
This rule is issued under the authority of the CZMA, 16 U.S.C. 1451
et seq.
II. Background
The CZMA was enacted to encourage and assist the 35 eligible
coastal states and territories to develop and implement CZM programs to
preserve, protect, develop and, where possible, restore or enhance the
resources of the Nation's coasts. In all, 29 coastal states and
territories have chosen to participate in this program, and their
programs have received federal approval. Five states are currently
developing programs for federal approval. Many of the regulations
promulgated when the program began are no longer needed, now that the
program has matured.
In March 1995, President Clinton issued a directive to federal
agencies regarding their responsibilities under his Regulatory Reform
Initiative. This initiative is part of the National Performance Review
and calls for immediate, comprehensive regulatory reform. The President
directed all agencies to review all of their regulations, with an
emphasis on eliminating or modifying those that are obsolete or
otherwise in need of reform. This rule is intended to carry out the
President's directive with respect to the regulations implementing the
Coastal Zone Management program.
On March 11, 1996 (61 FR 9745-9762), the Office of Ocean and
Coastal Resource Management (OCRM) proposed to revise and consolidate
these CZM regulations. Concurrent with the issuance of the proposed
regulations, OCRM mailed draft guidance to coastal states concerning
the program change regulations. OCRM received comments on the proposed
revision of the regulations and/or draft program change guidance from
the states of: Connecticut, Massachusetts, Michigan, New Hampshire,
Oregon, Pennsylvania and Texas. These state comments focused on the
proposed revision of 15 CFR 923.80(d) (the definition of a program
amendment). OCRM will evaluate the comments directed at the draft
guidance, and revise the guidance as appropriate. The comments directed
at the proposed revision of the regulations are addressed below. In
addition, OCRM will continue to consider these comments in its
implementation of the CZMA and these regulations.
OCRM also received comments from the Federal Emergency Management
Agency (FEMA) directed at coastal hazard mitigation efforts. Sections
303(2)(K) and 303(3) of the CZMA identify the need to address the
adverse effects of coastal hazards, including erosion, land subsidence
and flooding. While the regulations already identify hazardous areas as
areas of particular concern (15 CFR 923.21(b)(7)), some additional
emphasis on coastal hazards has been placed in Sec. 923.25(a) and
Sec. 923.50(a)(5) to reflect the CZMA's policies. Coastal states may
rely on these interpretive statements when submitting program changes
concerning coastal hazard mitigation efforts. In addition, the
regulation concerning plan coordination (Sec. 923.56(b)(2)) has been
updated, consistent with FEMA's current planning authorities.
Accordingly, this final rule revises and consolidates the CZM
regulations as follows:
A. Consolidates Regulations
The rule consolidates CZM program regulations found in present 15
CFR parts 923, 927, 928 and 932 into a revised part 923. This
consolidation is expected to make the regulations easier for coastal
states, territories and the public to use.
B. Removes Regulations Restating Statutory Language
The rule removes those regulations in 15 CFR part 923 that simply
restate provisions contained in the Coastal Zone Management Act. These
provisions are replaced, where appropriate, with references to the
applicable sections of the CZMA. Removal of these provisions is in
accordance with the rules of the Office of the Federal Register which
discourage agencies from restating the language of a law in a document
intended for publication in the Federal Register.
C. Removes Outdated Provisions and Simplifies Remaining Provisions
The rule removes those regulations in 15 CFR part 923 that are no
longer necessary because the CZM program has reached its maturity, and
simplifies the remaining provisions. Many of the more detailed
regulatory requirements are removed. Since part 923 largely addresses
requirements for the development and approval of coastal management
programs, many of these changes do not apply to those states that
already have federally approved CZM programs. For the eligible coastal
states that do not yet have approved programs, OCRM will continue to
provide necessary guidance, and actual and timely notice of appropriate
application procedures. In particular, OCRM will continue to work with
the 5 coastal states currently developing programs in order to ensure
that those programs meet the criteria for federal approval. Finally,
the rule removes 15 CFR part 933 because it implements a portion of the
CZMA that was repealed in 1986. OCRM will provide guidance on a
corresponding technical assistance provision that was added to the CZMA
in the Coastal Zone Act Reauthorization Amendments of 1990.
D. Updates Program Change Regulations
The rule updates the program change regulations so that they more
precisely reflect the structure of coastal management programs. In
particular, the four criteria identified at 15 CFR 923.80(d)(1)-(4), by
which program changes are assessed by OCRM, are replaced with a
reference to the five program approvability areas identified in part
923: (1) uses subject to
[[Page 33803]]
management, (2) special management areas, (3) boundaries, (4)
authorities and organization, and (5) coordination, public involvement
and national interest. These criteria will apply when states submit
their proposed program changes to OCRM for review and approval; they
are intended to assist in OCRM's evaluation of a program change.
The revised definition of a program amendment located at 15 CFR
923.80(d) is intended to ease rather than increase the administrative
burden of states. While the four criteria were an effort to group the
program approvability areas, not all program changes fit squarely
within the four groups. The rule repeats the headings of subparts B
through F of part 923, and so, tracks the program approvability areas.
In addition, states may refer to these subparts for assistance in their
analysis of a program change. Furthermore, states are no longer
required to address those program areas that do not apply to their
proposed changes. Rather, the rule allows states to discuss one or more
of the program areas that would be affected by a change. Thus, the rule
allows states greater flexibility to provide a more focused analysis.
OCRM anticipates that the great majority of program change requests
will continue to be routine program changes, i.e., OCRM does not
anticipate that the revision will increase the number of program
changes that are determined to be substantial in nature.
The element of 15 CFR 923.80(d) relating to special management
areas has been simplified from ``criteria or procedures for designating
or managing areas [of] particular concern or areas for preservation or
restoration,'' to the heading for subpart C of part 923: ``special
management areas.'' OCRM does not anticipate that this revision will
increase the number of program changes relating to special management
areas that will be determined to be amendments. Specifically, the
elimination of the phrase ``criteria or procedures for designating or
managing'' is not intended to broaden the scope of this element.
Conversely, OCRM declines to reinsert this phrase into 15 CFR 923.80(d)
because, in practice, this phrase has proven to be of little utility to
coastal states submitting program changes in this category. Rather, the
test for an amendment to the special management area portion of a
coastal management program remains unchanged: the program change must
be substantial. In other words, under both the old and the new
language, whether a change in this area of a state's program
constitutes an amendment requires an evaluation of whether the program
change is substantial.
The addition of ``authorities'' as a partial fifth category in 15
CFR 923.80(d) is merely a restructuring of the definition of program
amendment. Previously, the term ``authorities'' was used at the outset
of the definition of program amendment, and proved to be a source of
confusion. Again, the test of whether a change is substantial, and
therefore an amendment, remains unchanged. Minor program changes,
including minor changes in authorities, remain approvable through the
routine program change process.
The addition of an ``organization'' element to 15 CFR 923.80(d)
clarifies that federal approval of coastal programs is indeed
predicated, in part, on whether the state is organized to manage its
coastal zone in an effective manner. The prior four criteria contained
in Sec. 923.80(d) did not assist states in analyzing the impacts of
organizational changes, whereas the revision explicitly addresses this
area of program approvability. Again, minor program changes, including
minor organizational changes, remain approvable through the routine
program change process.
The rule also adds explanatory statements concerning the addition
of any enforceable policies to management programs. These statements
reflect Congress' increased focus on enforceable policies in the
Coastal Zone Act Reauthorization Amendments of 1990. OCRM, federal
agencies, applicants for federal licenses or permits, and often the
state coastal programs themselves, cannot always identify the
enforceable policies in a program. OCRM recognizes that events beyond a
coastal management program's control can change the enforceability of a
policy. However, OCRM needs to know just what is being changed at the
time of a program change, and federal agencies and applicants should be
allowed to comment on the enforceable policies submitted for
incorporation.
To be sure, coastal management programs allow for flexibility in
state coastal management efforts. Certain changes in coastal management
efforts may not need OCRM approval because they do not affect the
federally-approved program. In other words, states structured their
coastal management programs with varying levels of detail sufficient to
``guide public and private uses of lands and waters in the coastal
zone.'' CZMA section 304(12). Depending on the nature of the particular
state coastal management program and the nature of the management
change, a state may make minor adjustments in how it manages the
coastal zone without necessarily changing its approved coastal
management program.
Alternatively, a state may determine that a necessary change in its
federally-approved coastal management program is so insignificant that
it need not be submitted to OCRM for review. However, the expenditure
of CZMA funds is limited to those approved parts of a state's program
(with an exception identified in CZMA section 306(e)(3)(B)), as is the
requirement of federal consistency. In addition, this regulatory
revision does not change the possibility that failure to submit program
changes for OCRM approval may lead to adverse evaluation findings (15
CFR 928.5(a)(3)(i)(G) has been redesignated as 15 CFR
923.135(a)(3)(i)(G)). The routine program change procedure is intended
to be an administratively efficient means by which states may submit,
on a routine or periodic basis, insubstantial program changes for OCRM
review and approval. OCRM shares the desire of coastal states to
minimize administrative burdens and will work cooperatively to achieve
this goal.
Finally, the term ``routine program implementation'' is changed to
the more descriptive term ``routine program change,'' and existing
agency practice that allows for the resubmittal of routine program
change requests is codified.
III. Miscellaneous Rulemaking Requirements
Executive Order 12372: Intergovernmental Review
This program is subject to Executive Order 12372.
Executive Order 12612: Federalism Assessment
NOAA has concluded that this regulatory action does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment under Executive Order 12612.
Executive Order 12866: Regulatory Planning and Review
This regulatory action is not significant for purposes of Executive
Order 12866.
Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce has certified to the Chief Counsel for Advocacy
of the Small Business Administration that the rule will not have a
significant impact on a substantial number of small entities because
(1) the rule addresses CZM
[[Page 33804]]
programs of coastal states and territories, (2) those provisions that
are being removed, because they are outdated or repeat statutory
language, are unnecessary for the development and implementation of CZM
programs, and (3) the revision and consolidation of remaining
provisions will impose no additional burden on small entities. In
particular, the update of the CZM program change regulations will help
ensure the continued approvability of CZM programs. Accordingly, a
Regulatory Flexibility Analysis was not prepared.
Paperwork Reduction Act
The rule contains collection-of-information requirements subject to
review and approval by OMB under the Paperwork Reduction Act (PRA). The
collection-of-information requirements contained in this rule have been
approved under OMB Control Number 0648-0119. The estimated response
times for these requirements are 480 hours for management program
approval and 8 hours for program amendments and routine program
changes. The response estimates shown include the time for reviewing
instructions, searching exiting data sources, gathering and maintaining
data needed, and completing and reviewing the collection of
information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
National Environmental Policy Act
NOAA has concluded that this regulatory action does not constitute
a major federal action significantly affecting the quality of the human
environment. Therefore, an environmental impact statement is not
required.
List of Subjects
15 CFR Parts 923, 928 and 932
Administrative practice and procedure, Coastal zone, Grant
programs--Natural resources, Reporting and recordkeeping requirements.
15 CFR Part 927
Administrative practice and procedure, Coastal zone, Grant
programs--Natural resources.
15 CFR Part 933
Administrative practice and procedure, Coastal zone, Grant
programs--Natural resources, Reporting and recordkeeping requirements,
Research.
Dated: June 21, 1996.
David Evans,
Acting Deputy Assistant Administrator for Ocean Services and Coastal
Zone Management.
For the reasons set out in the Preamble, 15 CFR Chapter IX is
amended as follows:
1. The heading for Part 923 is revised to read as follows:
PART 923--COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS
2. The table of contents for Part 923 is revised to read as
follows:
Subpart A--General
Sec.
923.1 Purpose and scope.
923.2 Definitions.
923.3 General requirements.
Subpart B--Uses Subject to Management
923.10 General.
923.11 Uses subject to management.
923.12 Uses of regional benefit.
923.13 Energy facility planning process.
Subpart C--Special Management Areas
923.20 General.
923.21 Areas of particular concern.
923.22 Areas for preservation or restoration.
923.23 Other areas of particular concern.
923.24 Shorefront access and protection planning.
923.25 Shoreline erosion/mitigation planning.
Subpart D--Boundaries
923.30 General.
923.31 Inland boundary.
923.32 Lakeward or seaward boundary.
923.33 Excluded lands.
923.34 Interstate boundary.
Subpart E--Authorities and Organization
923.40 General.
923.41 Identification of authorities.
923.42 State establishment of criteria and standards for local
implementation--Technique A.
923.43 Direct State land and water use planning and regulation--
Technique B.
923.44 State review on a case-by-case basis of actions affecting
land and water uses subject to the management program--Technique C.
923.45 Air and water pollution control requirements.
923.46 Organizational structure.
923.47 Designated State agency.
923.48 Documentation.
Subpart F--Coordination, Public Involvement and National Interest
923.50 General.
923.51 Federal-State consultation.
923.52 Consideration of the national interest in facilities.
923.53 Federal consistency procedures.
923.54 Mediation.
923.55 Full participation by State and local governments,
interested parties, and the general public.
923.56 Plan coordination.
923.57 Continuing consultation.
923.58 Public hearings.
Subpart G--Review/Approval Procedures
923.60 Review/approval procedures.
Subpart H--Amendments to and Termination of Approved Management
Programs
923.80 General.
923.81 Requests for amendments.
923.82 Amendment review/approval procedures.
923.83 Mediation of amendments.
923.84 Routine program changes.
Subpart I--Applications for Program Development of Implementation
Grants
923.90 General.
923.91 State responsibility.
923.92 Allocation.
923.93 Eligible implementation costs.
923.94 Application for program development or implementation
grants.
923.95 Approval of applications.
923.96 Grant amendments.
Subpart J--Allocation of Section 306 Program Administration Grants
923.110 Allocation formula.
Subpart K--Coastal Zone Enhancement Grants Program
923.121 General.
923.122 Objectives.
923.123 Definitions.
923.124 Allocation of section 309 funds.
923.125 Criteria for section 309 project selection.
923.126 Pre-application procedures.
923.127 Formal application for financial assistance and application
review and approval procedures.
923.128 Revisions to assessments and strategies.
Subpart L--Review of Performance
923.131 General.
923.132 Definitions.
923.133 Procedure for conducting continuing reviews of approved
State CZM programs.
923.134 Public participation.
923.135 Enforcement.
3. The authority for Part 923 is revised to read as follows:
Authority: 16 U.S.C. 1452 et seq. Sections 923.92 and 923.94 are
also issued under E.O. 12372, July 14, 1982, 3 CFR, 1982 Comp. p.
197, as amended by E.O. 12416, April 8, 1983, 3 CFR, 1983 Comp. p.
186; (31 U.S.C. 6506; 42 U.S.C. 3334).
4. Subpart J consisting of Secs. 923.90 through 923.98 is removed,
and Subparts A through I of Part 923 are revised to read as follows:
[[Page 33805]]
Subpart A--General
Sec. 923.1 Purpose and scope.
(a) The regulations in this part set forth the requirements for
State coastal management program approval by the Assistant
Administrator for Ocean Services and Coastal Zone Management pursuant
to the Coastal Zone Management Act of 1972, as amended (hereafter, the
Act); the grant application procedures for program funds; conditions
under which grants may be terminated; and requirements for review of
approved management programs.
(b) Sections 306 and 307 of the Act set forth requirements which
must be fulfilled as a condition of program approval. The specifics of
these requirements are set forth below under the following headings:
General Requirements; Uses Subject to Management; Special Management
Areas; Boundaries; Authorities and Organization; and Coordination,
Public Involvement and National Interest. All relevant sections of the
Act are dealt with under one of these groupings, but not necessarily in
the order in which they appear in the Act.
(c) In summary, the requirements for program approval are that a
State develop a management program that:
(1) Identifies and evaluates those coastal resources recognized in
the Act as requiring management or protection by the State;
(2) Reexamines existing policies or develops new policies to manage
these resources. These policies must be specific, comprehensive, and
enforceable;
(3) Determines specific use and special geographic areas that are
to be subject to the management program, based on the nature of
identified coastal concerns;
(4) Identifies the inland and seaward areas subject to the
management program;
(5) Provides for the consideration of the national interest in the
planning for and siting of facilities that meet more than local
requirements;
(6) Includes sufficient legal authorities and organizational
arrangements to implement the program and to ensure conformance to it.
In arriving at these elements of the management program, States are
obliged to follow an open process which involves providing information
to and considering the interests of the general public, special
interest groups, local governments, and regional, State, interstate,
and Federal agencies;
(7) Provides for public participation in permitting processes,
consistency determinations, and other similar decisions;
(8) Provides a mechanism to ensure that all state agencies will
adhere to the program; and
(9) Contains enforceable policies and mechanisms to implement the
applicable requirements of the Coastal Nonpoint Pollution Control
Program of the state required by section 6217 of the Coastal Zone Act
Reauthorization Amendments of 1990.
Sec. 923.2 Definitions.
(a) The term Act means the Coastal Zone Management Act of 1972, as
amended.
(b) The term Secretary means the Secretary of Commerce and his/her
designee.
(c) The term Assistant Administrator means the Assistant
Administrator for Ocean Services and Coastal Zone Management, National
Oceanic and Atmospheric Administration (NOAA), or designee.
(d)(1) The term relevant Federal agencies means those Federal
agencies with programs, activities, projects, regulatory, financing, or
other assistance responsibilities in the following fields which could
impact or affect a State's coastal zone:
(i) Energy production or transmission,
(ii) Recreation of a more than local nature,
(iii) Transportation,
(iv) Production of food and fiber,
(v) Preservation of life and property,
(vi) National defense,
(vii) Historic, cultural, aesthetic, and conservation values,
(viii) Mineral resources and extraction, and
(ix) Pollution abatement and control.
(2) The following are defined as relevant Federal agencies:
Department of Agriculture; Department of Commerce; Department of
Defense; Department of Education; Department of Energy; Department of
Health and Human Services; Department of Housing and Urban Development;
Department of the Interior; Department of Transportation; Environmental
Protection Agency; Federal Energy Regulatory Commission; General
Services Administration, Nuclear Regulatory Commission; Federal
Emergency Management Agency.
(e) The term Federal agencies principally affected means the same
as ``relevant Federal agencies.'' The Assistant Administrator may
include other agencies for purposes of reviewing the management program
and environmental impact statement.
(f) The term Coastal State means a State of the United States in,
or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of
Mexico, Long Island Sound, or one or more of the Great Lakes. Pursuant
to section 304(3) of the Act, the term also includes Puerto Rico, the
Virgin Islands, Guam, and American Samoa. Pursuant to section 703 of
the Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, the term
also includes the Northern Marianas.
(g) The term management program includes, but is not limited to, a
comprehensive statement in words, maps, illustrations, or other media
of communication, including an articulation of enforceable policies and
citation of authorities providing this enforceability, prepared and
adopted by the State in accordance with the provisions of this Act and
this part, setting forth objectives, policies, and standards to guide
public and private uses of lands and waters in the coastal zone.
(h) The following terms, as used in these regulations, have the
same definition as provided in section 304 of the Act:
(1) Coastal zone;
(2) Coastal waters;
(3) Enforceable policy;
(4) Estuary;
(5) Land use; and
(6) Water use.
(i) The term grant means a financial assistance instrument and
refers to both grants and cooperative agreements.
Sec. 923.3 General requirements.
(a) The management program must be developed and adopted in
accordance with the requirements of the Act and this part, after
notice, and the opportunity for full participation by relevant Federal
and State agencies, local governments, regional organizations, port
authorities, and other interested parties and persons, and be adequate
to carry out the purposes of the Act and be consistent with the
national policy set forth in section 303 of the Act.
(b) The management program must provide for the management of those
land and water uses having a direct and significant impact on coastal
waters and those geographic areas which are likely to be affected by or
vulnerable to sea level rise. The program must include provisions to
assure the appropriate protection of those significant resources and
areas, such as wetlands, beaches and dunes, and barrier islands, that
make the State's coastal zone a unique, vulnerable, or valuable area.
(c) The management program must contain a broad class of policies
for each
[[Page 33806]]
of the following areas: resource protection, management of coastal
development, and simplification of governmental processes. These three
broad classes must include specific policies that provide the framework
for the exercise of various management techniques and authorities
governing coastal resources, uses, and areas. The three classes must
include policies that address uses of or impacts on wetlands and
floodplains within the State's coastal zone, and that minimize the
destruction, loss or degradation of wetlands and preserve and enhance
their natural values in accordance with the purposes of Executive Order
11990, pertaining to wetlands. These policies also must reduce risks of
flood loss, minimize the impact of floods on human safety, health and
welfare, and preserve the natural, beneficial values served by
floodplains, in accordance with the purposes of Executive Order 11988,
pertaining to floodplains.
(d) The policies in the program must be appropriate to the nature
and degree of management needed for uses, areas, and resources
identified as subject to the program.
(e) The policies, standards, objectives, criteria, and procedures
by which program decisions will be made must provide:
(1) A clear understanding of the content of the program, especially
in identifying who will be affected by the program and how, and
(2) A clear sense of direction and predictability for
decisionmakers who must take actions pursuant to or consistent with the
management program.
Subpart B--Uses Subject to Management
Sec. 923.10 General.
This subpart sets forth the requirements for management program
approvability with respect to land and water uses which, because of
their direct and significant impacts on coastal waters or those
geographic areas likely to be affected by or vulnerable to sea level
rise, are subject to the terms of the management program. This subpart
deals in full with the following subsections of the Act: 306(d)(1)(B),
Uses Subject to the Management Program, 306(d)(2)(H), Energy Facility
Planning, and 306(d)(12)(B), Uses of Regional Benefit.
Sec. 923.11 Uses subject to management.
(a) (1) The management program for each coastal state must include
a definition of what shall constitute permissible land uses and water
uses within the coastal zone which have a direct and significant impact
on the coastal waters.
(2) The management program must identify those land and water uses
that will be subject to the terms of the management program. These uses
shall be those with direct and significant impacts on coastal waters or
on geographic areas likely to be affected by or vulnerable to sea level
rise.
(3) The management program must explain how those uses identified
in paragraph (a)(2) of this section will be managed. The management
program must also contain those enforceable policies, legal
authorities, performance standards or other techniques or procedures
that will govern whether and how uses will be allowed, conditioned,
modified, encouraged or prohibited.
(b) In identifying uses and their appropriate management, a State
should analyze the quality, location, distribution and demand for the
natural and man-made resources of their coastal zone, and should
consider potential individual and cumulative impacts of uses on coastal
waters.
(c) States should utilize the following types of analyses:
(1) Capability and suitability of resources to support existing or
projected uses;
(2) Environmental impacts on coastal resources;
(3) Compatibility of various uses with adjacent uses or resources;
(4) Evaluation of inland and other location alternatives; and
(5) Water dependency of various uses and other social and economic
considerations.
(d) Examination of the following factors is suggested:
(1) Air and water quality;
(2) Historic, cultural and esthetic resources where coastal
development is likely to affect these resources;
(3) Open space or recreational uses of the shoreline where
increased access to the shorefront is a particularly important concern;
(4) Floral and faunal communities where loss of living marine
resources or threats to endangered or threatened coastal species are
particularly important concerns.
(5) Information on the impacts of global warming and resultant sea
level rise on natural resources such as beaches, dunes, estuaries, and
wetlands, on salinization of drinking water supplies, and on
properties, infrastructure and public works.
Sec. 923.12 Uses of regional benefit.
The management program must contain a method of assuring that local
land use and water use regulations within the coastal zone do not
unreasonably restrict or exclude land uses and water uses of regional
benefit. To this end, the management program must:
(a) Identify what constitutes uses of regional benefit; and
(5) Identify and utilize any one or a combination of methods,
consistent with the control techniques employed by the State, to assure
local land and water use regulations do not unreasonably restrict or
exclude uses of regional benefit.
Sec. 923.13 Energy facility planning process.
The management program must contain a planning process for energy
facilities likely to be located in or which may significantly affect,
the coastal zone, including a process for anticipating the management
of the impacts resulting from such facilities. (See subsection 304(5)
of the Act.) This process must contain the following elements:
(a) Identification of energy facilities which are likely to locate
in, or which may significantly affect, a State's coastal zone;
(5) Procedures for assessing the suitability of sites for such
facilities designed to evaluate, to the extent practicable, the costs
and benefits of proposed and alternative sites in terms of State and
national interests as well as local concerns;
(c) Articulation and identification of enforceable State policies,
authorities and techniques for managing energy facilities and their
impacts; and
(d) Identification of how interested and affected public and
private parties will be involved in the planning process.
Subpart C--Special Management Areas
Sec. 923.20 General.
(a) This subpart sets forth the requirements for management program
approvability with respect to areas of particular concern because of
their coastal-related values or characteristics, or because they may
face pressures which require detailed attention beyond the general
planning and regulatory system which is part of the management program.
As a result, these areas require special management attention within
the terms of the State's overall coastal program. This special
management may include regulatory or permit requirements applicable
only to the area of particular concern. It also may include increased
intergovernmental coordination, technical, assistance,
[[Page 33807]]
enhanced public expenditures, or additional public services and
maintenance to a designated area. This subpart deals with the following
subsections of the Act: 306(d)(2)(C)-Geographic Areas of Particular
Concern; 306(d)(2)(E)-Guidelines on Priorities of Uses; 306(d)(2)(G)-
Shorefront Access and protection Planning; 306(d)(2)(I)-Shoreline
Erosion/Mitigation Planning; and 306(d)(9)-Areas for Preservation and
Restoration.
(b) The importance of designating areas of particular concern for
management purposes and the number and type of areas that should be
designated is directly related to the degree of comprehensive controls
applied throughout a State's coastal zone. Where a State's general
coastal management policies and authorities address state and national
concerns comprehensively and are specific with respect to particular
resources and uses, relatively less emphasis need be placed on
designation of areas of particular concern. Where these policies are
limited and non-specific, greater emphasis should be placed on areas of
particular concern to assure effective management and an adequate
degree of program specificity.
Sec. 923.21 Areas of particular concern.
(a) The management program must include an inventory and
designation of areas of particular concern within the coastal zone, on
a generic and/or site-specific basis, and broad guidelines on
priorities of uses in particular areas, including specifically those
uses of lowest priority.
(b) In developing criteria for inventorying and designating areas
of particular concern. States must consider whether the following
represent areas of concern requiring special management:
(1) Areas of unique, scarce, fragile or vulnerable natural habitat;
unique or fragile, physical, figuration (as, for example, Niagara
Falls); historical significance, cultural value or scenic importance
(including resources on or determined to be eligible for the National
Register of Historic Places.);
(2) Areas of high natural productivity or essential habitat for
living resources, including fish, wildlife, and endangered species and
the various trophic levels in the food web critical to their well-
being;
(3) Areas of substantial recreational value and/or opportunity;
(4) Areas where developments and facilities are dependent upon the
utilization of, or access to, coastal waters;
(5) Areas of unique hydrologic, geologic or topographic
significance for industrial or commercial development or for dredge
spoil disposal;
(6) Areas or urban concentration where shoreline utilization and
water uses are highly competitive;
(7) Areas where, if development were permitted, it might be subject
to significant hazard due to storms, slides, floods, erosion,
settlement, salt water intrusion, and sea level rise;
(8) Areas needed to protect, maintain or replenish coastal lands or
resources including coastal flood plains, aquifers and their recharge
areas, estuaries, sand dunes, coral and other reefs, beaches, offshore
sand deposits and mangrove stands.
(c) Where states will involve local governments, other state
agencies, federal agencies and/or the public in the process of
designating areas of particular concern, States must provide guidelines
to those who will be involved in the designation process. These
guidelines shall contain the purposes, criteria, and procedures for
nominating areas of particular concern.
(d) In identifying areas of concern by location (if site specific)
or category of coastal resources (if generic), the program must contain
sufficient detail to enable affected landowners, governmental entities
and the public to determine with reasonable certainty whether a given
area is designated.
(e) In identifying areas of concern, the program must describe the
nature of the concern and the basis on which designations were made.
(f) The management program must describe how the management program
addresses and resolves the concerns for which areas are designated; and
(g) The management program must provide guidelines regarding
priorities of uses in these areas, including guidelines on uses of
lowest priority.
Sec. 923.22 Areas for preservation or restoration.
The management program must include procedures whereby specific
areas may be designated for the purpose of preserving or restoring them
for their conservation, recreational, ecological, historical or
esthetic values, and the criteria for such designations.
Sec. 923.23 Other areas of particular concern.
(a) The management program may, but is not required to, designate
specific areas known to require additional or special management, but
for which additional management techniques have not been developed or
necessary authorities have not been established at the time of program
approval. If a management program includes such designations, the basis
for designation must be clearly stated, and a reasonable time frame and
procedures must be set forth for developing and implementing
appropriate management techniques. These procedures must provide for
the development of those items required in Sec. 923.21. The management
program must identify an agency (or agencies) capable of formulating
the necessary management policies and techniques.
(b) The management program must meet the requirements of
Sec. 923.22 for containing procedures for designating areas for
preservation or restoration. The management program may include
procedures and criteria for designating areas of particular concern for
other than preservation or restoration purposes after program approval.
Sec. 923.24 Shorefront access and protection planning.
(a) The management program must include a definition of the term
``beach'' and a planning process for the protection of, and access to,
public beaches and other public coastal areas of environmental,
recreational, historical, esthetic, ecological or cultural value.
(b) The basic purpose in focusing special planning attention on
shorefront access and protection is to provide public beaches and other
public coastal areas of environmental, recreational, historic,
esthetic, ecological or cultural value with special management
attention within the purview of the State's management program. This
special management attention may be achieved by designating public
shorefront areas requiring additional access or protection as areas of
particular concern pursuant to Sec. 923.21 or areas for preservation or
restoration pursuant to Sec. 923.22.
(c) The management program must contain a procedure for assessing
public beaches and other public areas, including State owned lands,
tidelands and bottom lands, which require access or protection, and a
description of appropriate types of access and protection.
(d) The management program must contain a definition of the term
``beach'' that is the broadest definition allowable under state law or
constitutional provisions, and an identification of public areas
meeting that definition.
(e) The management program must contain an identification and
description of enforceable policies, legal authorities, funding program
and other techniques that will be used to provide such shorefront
access and protection that the State's planning process indicates is
necessary.
[[Page 33808]]
Sec. 923.25 Shoreline erosion/mitigation planning.
(a) The management program must include a planning process for
assessing the effects of, and studying and evaluating ways to control,
or lessen the impact of, shoreline erosion, including potential impacts
of sea level rise, and to restore areas adversely affected by such
erosion. this planning process may be within the broader context of
coastal hazard mitigation planning.
(b) The basic purpose in developing this planning process is to
give special attention to erosion issues. This special management
attention may be achieved by designating erosion areas as areas of
particular concern pursuant to Sec. 923.21 or as areas for preservation
or restoration pursuant to Sec. 923.22.
(c) The management program must include an identification and
description of enforceable policies, legal authorities, funding
techniques and other techniques that will be used to manage the effects
of erosion, including potential impacts of sea level rise, as the
state's planning process indicates is necessary.
Subpart D--Boundaries
Sec. 923.30 General.
This subpart sets forth the requirements for management program
approvability with respect to boundaries of the coastal zone. There are
four elements to a State's boundary: the inland boundary, the seaward
boundary, areas excluded from the boundary, and, in most cases,
interstate boundaries. Specific requirements with respect to procedures
for determining and identifying these boundary elements are discussed
in the sections of this subpart that follow.
Sec. 923.31 Inland boundary.
(a) The inland boundary of a State's coastal zone must include:
(1) Those areas the management of which is necessary to control
uses which have direct and significant impacts on coastal waters, or
are likely to be affected by or vulnerable to sea level rise, pursuant
to section 923.11 of these regulations.
(2) Those special management areas identified pursuant to
Sec. 923.21;
(3) Waters under saline influence-waters containing a significant
quantity of seawater, as defined by and uniformly applied by the State;
(4) Salt marshes and wetlands-Areas subject to regular inundation
of tidal salt (or Great Lakes) waters which contain marsh flora typical
of the region;
(5) Beaches-The area affected by wave action directly from the sea.
Examples are sandy beaches and rocky areas usually to the vegetation
line;
(6) Transitional and intertidal areas-Areas subject to coastal
storm surge, and areas containing vegetation that is salt tolerant and
survives because of conditions associated with proximity to coastal
waters. Transitional and intertidal areas also include dunes and rocky
shores to the point of upland vegetation;
(7) Islands-Bodies of land surrounded by water on all sides.
Islands must be included in their entirety, except when uses of
interior portions of islands do not cause direct and significant
impacts.
(8) The inland boundary must be presented in a manner that is clear
and exact enough to permit determination of whether property or an
activity is located within the management area. States must be able to
advise interested parties whether they are subject to the terms of the
management program within, at a maximum, 30 days of receipt of an
inquiry. An inland coastal zone boundary defined in terms of political
jurisdiction (e.g., county, township or municipal lines) cultural
features (e.g., highways, railroads), planning areas (e.g., regional
agency jurisdictions, census enumeration districts), or a uniform
setback line is acceptable so long as it includes the areas
indentified.
(b) The inland boundary of a State's coastal zone may include:
(1) Watersheds-A state may determine some uses within entire
watersheds which have direct and significant impact on coastal waters
or are likely to be affected by or vulnerable to sea level rise. In
such cases it may be appropriate to define the coastal zone as
including these watersheds.
(2) Areas of tidal influence that extend further inland than waters
under saline influence; particularly in estuaries, deltas and rivers
where uses inland could have direct and significant impacts on coastal
waters or areas that are likely to be affected by or vulnerable to sea
level rise.
(3) Indian lands not held in trust by the Federal Government.
(c) In many urban areas or where the shoreline has been modified
extensively, natural system relationships between land and water may be
extremely difficult, if not, impossible, to define in terms of direct
and significant impacts. Two activities that States should consider as
causing direct and significant impacts on coastal waters in urban areas
are sewage discharges and urban runoff. In addition, States should
consider dependency of uses on water access and visual relationships as
factors appropriate for the determination of the inland boundary in
highly urbanized areas.
Sec. 923.32 Lakeward or seaward boundary.
(a) (1) For states adjoining the Great Lakes, the lakeward boundary
of the State's coastal zone is the international boundary with Canada
or the boundaries with adjacent states. For states adjacent to the
Atlantic or Pacific Ocean, or the Gulf of Mexico, the seaward boundary
is the outer limit of state title and ownership under the Submerged
Lands Act (48 U.S.C. 1301 et seq.), the Act of March 2, 1917 (48 U.S.C.
749), the Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, as
approved by the Act of March 24, 1976 (48 U.S.C. 1681 note) or section
1 of the Act of November 10, 1963, (48 U.S.C. 1705, as applicable).
(2) The requirement for defining the seaward boundary of a State's
coastal zone can be met by a simple restatement of the limits defined
in this section, unless there are water areas which require a more
exact delineation because of site specific policies associated with
these areas. Where States have site specific policies for particular
water areas, these shall be mapped, described or referenced so that
their location can be determined reasonably easily by any party
affected by the policies.
(b) The seaward limits, as defined in this section, are for
purposes of this program only and represent the area within which the
State's management program may be authorized and financed. These limits
are irrespective of any other claims States may have by virtue of other
laws.
Sec. 923.33 Excluded lands.
(a) The boundary of a State's coastal zone must exclude lands
owned, leased, held in trust or whose use is otherwise by law subject
solely to the discretion of the Federal Government, its officers or
agents. To meet this requirement, the program must describe, list or
map lands or types of lands owned, leased, held in trust or otherwise
used solely by Federal agencies.
(b) The exclusion of Federal lands does not remove Federal agencies
from the obligation of complying with the consistency provisions of
section 307 of the Act when Federal actions on these excluded lands
have spillover impacts that affect any land or water use or natural
resource of the coastal zone within the purview of a state's management
program. In excluding Federal lands from a State's coastal zone
[[Page 33809]]
for the purposes of this Act, a State does not impair any rights or
authorities that it may have over Federal lands that exist separate
from this program.
Sec. 923.34 Interstate boundary.
States must document that there has been consultation and
coordination with adjoining coastal States regarding delineation of any
adjacent inland and lateral seaward boundary.
Subpart E--Authorities and Organization
Sec. 923.40 General.
(a) This subpart sets forth the requirements for management program
approvability with respect to authorities and organization. The
authorities and organizational structure on which a State will rely to
administer its management program are the crucial underpinnings for
enforcing the policies which guide the management of the uses and areas
identified in its management program. There is a direct relationship
between the adequacy of authorities and the adequacy of the overall
program. The authorities need to be broad enough in both geographic
scope and subject matter to ensure implementation of the State's
enforceable policies. These enforceable policies must be sufficiently
comprehensive and specific to regulate land and water uses, control
development, and resolve conflicts among competing uses in order to
assure wise use of the coastal zone. (Issues relating to the adequate
scope of the program are dealt with in Sec. 923.3.)
(b) The entity or entities which will exercise the program's
authorities is a matter of State determination. They may be the state
agency designated pursuant to section 306(d)(6) of the Act, other state
agencies, regional or interstate bodies, and local governments. The
major approval criterion is a determination that such entity or
entities are required to exercise their authorities in conformance with
the policies of the management program. Accordingly, the essential
requirement is that the State demonstrate that there is a means of
ensuring such compliance. This demonstration will be in the context of
one or a combination of the three control techniques specified in
section 306(d)(11) of the Act. The requirements related to section
306(d)(12) of the Act are described in Sec. Sec. 923.42 through 923.44
of this subchapter.
(c) In determining the adequacy of the authorities and organization
of a state's programs, the Assistant Administrator will review and
evaluate authorities and organizational arrangements in light of the
requirements of this subpart and the finding of section 302(h) of the
Act.
(d) The authorities requirements of the Act dealt with in this
subpart are those contained in subsections 306(d)(2)(D)-Means of
Control; 306(d)(10)-Authorities; 306(d)(10)(A)-Control Development and
Resolve Conflicts; 306(d)(10)(B)-Powers of Acquisition; 306(d)(11)-
Techniques of Control; and 307(f)-Air and Water Quality Control
Requirements. The organization requirements of the Act dealt with in
this subpart are those contained in sections 306(d)(2)(F)-
Organizational Structure; 306(d)(6)-Designated State Agency; and
306(d)(7)-Organization.
Sec. 923.41 Identification of authorities.
(a) (1) The management program must identify the means by which the
state proposes to exert control over the permissible land uses and
water uses within the coastal zone which have a direct and significant
impact on the coastal waters, including a listing of relevant state
constitutional provisions, laws, regulations, and judicial decisions.
These are the means by which the state will enforce its coastal
management policies. (See section 304(6a) of the Act.)
(2) The state chosen agency or agencies (including local
governments, area-wide agencies, regional agencies, or interstate
agencies) must have the authority for the management of the coastal
zone. Such authority includes the following powers:
(i) To administer land use and water use regulations to control
development to ensure compliance with the management program, and to
resolve conflicts among competing uses; and
(ii) To acquire fee simple and less than fee simple interests in
land, waters, and other property through condemnation or other means
when necessary to achieve conformance with the management program.
(b) In order to meet these requirements, the program must identify
relevant state constitutional provisions, statutes, regulations, case
law and such other legal instruments (including executive orders and
interagency agreements) that will be used to carry out the state's
management program, including the authorities pursuant to sections
306(d)(10) and 306(d)(11) of the Act which require a state to have the
ability to:
(1) Administer land and water use regulations in conformance with
the policies of the management program;
(2) Control such development as is necessary to ensure compliance
with the management program;
(3) Resolve conflicts among competing uses; and
(4) Acquire appropriate interest in lands, waters or other property
as necessary to achieve management objectives. Where acquisition will
be a necessary technique for accomplishing particular program policies
and objectives, the management program must indicate for what purpose
acquisition will be used (i.e., what policies or objectives will be
accomplished); the type of acquisition (e.g., fee simple, purchase of
easements, condemnation); and what agency (or agencies) of government
have the authority for the specified type of acquisition.
Sec. 923.42 State establishment of criteria and standards for local
implementation-Technique A.
(a) The management program must provide for any one or a
combination of general techniques specified in subsection 306(d)(11) of
the Act for control of land uses and water uses within the coastal
zone. The first such control technique, at subsection 306(d)(11)(A) of
the Act, is state establishment of criteria and standards for local
implementation, subject to administrative review and enforcement
(control technique A).
(b) There are 5 principal requirements that control technique A
must embody in order to be approved:
(1) The State must have developed and have in effect at the time of
program approval enforceable policies that meet the requirements of
Sec. 923.3. These policies must serve as the standards and criteria for
local program development or the State must have separate standards and
criteria, related to these enforceable policies, that will guide local
program development.
(2) During the period while local programs are being developed, a
State must have sufficient authority to assure that land and water use
decisions subject to the management program will comply with the
program's enforceable policies. The adequacy of these authorities will
be judged on the same basis as specified for direct State controls or
case-by-case reviews.
(3) A State must be able to ensure that coastal programs will be
developed pursuant to the State's standards and criteria, or failing
this, that the management program can be implemented directly by the
State. This requirement can be met if a State can exercise any one of
the following techniques:
[[Page 33810]]
(i) Direct State enforcement of its standards and criteria in which
case a State would need to meet the requirements of this section which
address the direct State control technique;
(ii) Preparation of a local program by a State agency which the
local government then would implement. To use this technique the State
must have statutory authority to prepare and adopt a program for a
local government, and a mechanism by which the State can cause the
local government to enforce the State-created program. Where the
mechanism to assure local enforcement will be judicial relief, the
program must include the authority under which judicial relief can be
sought;
(iii) State preparation and enforcement of a program on behalf of a
local government. Here the State must have the authority to:
(A) Prepare and adopt a plan, regulations, and ordinances for the
local government and
(B) Enforce such plans, regulations and ordinances;
(iv) State review of local government actions on a case-by-case
basis or on appeal, and prevention of actions inconsistent with the
standards and criteria. Under this technique, when a local government
fails to adopt an approvable program, the State must have the ability
to review activities in the coastal zone subject to the management
program and the power to prohibit, modify or condition those activities
based on the policies, standards and criteria of the management
program; or
(v) If a locality fails to adopt a management program, the State
may utilize a procedure whereby the responsibility for preparing a
program shifts to an intermediate level government, such as a county.
If this intermediate level of government fails to produce a program,
then the State must have the ability to take one of the actions
described above. This alternative cannot be used where the intermediate
level of government lacks the legal authority to adopt and implement
regulations necessary to implement State policies, standards and
criteria.
(4) A State must have a procedure whereby it reviews and certifies
the local program's compliance with State standards and criteria. This
procedure must include provisions for:
(i) Opportunity for the public and governmental entities (including
Federal agencies) to participate in the development of local programs;
and
(ii) Opportunity for the public and governmental entities
(including Federal agencies) to make their views known (through public
hearings or other means) to the State agency prior to approval of local
programs; and
(iii) Review by the State of the adequacy of local programs
consideration of facilities identified in a State's management program
in which there is a national interest.
(5) A State must be able to assure implementation and enforcement
of a local program once approved. To accomplish this a State must:
(i) Establish a monitoring system which defines what constitutes
and detects patterns of non-compliance. In the case of uses of regional
benefit and facilities in which there is a national interest, the
monitoring system must be capable of detecting single instances of
local actions affecting such uses or facilities in a manner contrary to
the management program.
(ii) Be capable of assuring compliance when a pattern of deviation
is detected or when a facility involving identified national interests
or a use of regional benefit is affected in a manner contrary to the
program's policies. When State action is required because of failure by
a local government to enforce its program, the State must be able to do
one or a combination of the following:
(A) Directly enforce the entire local program;
(B) Directly enforce that portion of the local program that is
being enforced improperly. State intervention would be necessary only
in those local government activities that are violating the policies,
standards or criteria.
(C) Seek judicial relief against local government for failure to
properly enforce;
(D) Review local government actions on a case-by-case basis or on
appeal and have the power to prevent those actions inconsistent with
the policies and standards.
(E) Provide a procedure whereby the responsibility for enforcing a
program shifts to an intermediate level of government, assuming
statutory authority exists to enable the immediate of government to
assume this responsibility.
Sec. 923.43 Direct State land and water use planning and regulation-
Technique B.
(a) The management program must provide for any one or a
combination of general techniques specified in subsection 306(d)(11) of
the Act for control of land and water uses within the coastal zone. The
second such control technique, at subsection 306(d)(11)(B) of the Act,
is direct state land and water use planning and regulation (control
technique B).
(b) To have control technique B approved, the State must have the
requisite direct authority to plan and regulate land and water uses
subject to the management program. This authority can take the form of:
(1) Comprehensive legislation--A single piece of comprehensive
legislation specific to coastal management and the requirements of this
Act.
(2) Networking--The utilization of authorities which are compatible
with and applied on the basis of coastal management policies developed
pursuant to Sec. 923.3.
(c) In order to apply the networking concept, the State must:
(1) Demonstrate that, taken together, existing authorities can and
will be used to implement the full range of policies and management
techniques identified as necessary for coastal management purposes; and
(2) Bind each party which exercises statutory authority that is
part of the management program to conformance with relevant enforceable
policies and management techniques. Parties may be bound to conformance
through an executive order, administrative directive or a memorandum of
understanding provided that:
(i) The management program authorities provide grounds for taking
action to ensure compliance of networked agencies with the program. It
will be sufficient if any of the following can act to ensure
compliance: The state agency designated pursuant to subsection
306(d)(6) of the Act, the state's Attorney General, another state
agency, a local government, or a citizen.
(ii) The executive order, administrative directive or memorandum of
understanding establishes conformance requirements of other State
agency activities or authorities to management program policies. A
gubernatorial executive order will be acceptable if networked State
agency heads are directly responsible to the Governor.
(3) Where networked State agencies can enforce the management
program policies at the time of section 306 approval without first
having to revise their operating rules and regulations, then any
proposed revisions to such rules and regulations which would enhance or
facilitate implementation need not be accomplished prior to program
approval. Where State agencies cannot enforce coastal policies without
first revising their rules and regulations, then these revisions must
be made prior to approval of the State's program by the Assistant
Administrator.
[[Page 33811]]
Sec. 923.44 State review on a case-by-case basis of actions affecting
land and water uses subject to the management program-Technique C.
(a) The management program must provide for any one or a
combination of general techniques specified in subsection 306(d)(11) of
the Act for control of land and water uses within the coastal zone. The
third such control technique, at subsection 306(d)(11)(C) of the Act,
is state administrative review for consistency with the management
program of all development plans, projects, or land and water use
regulations, including exceptions and variances thereto, proposed by
any state or local authority or private developer, with power to
approve or disapprove after public notice and an opportunity for
hearings (control technique C).
(b) Under case-by-case review, States have the power to review
individual development plans, projects or land and water use
regulations (including variances and exceptions thereto) proposed by
any State or local authority or private developer which have been
identified in the management program as being subject to review for
consistency with the management program. This control technique
requires the greatest degree of policy specificity because compliance
with the program will not require any prior actions on the part of
anyone affected by the program. Specificity also is needed to avoid
challenges that decisions (made pursuant to the management program) are
unfounded, arbitrary or capricious.
(c) To have control technique C approved, a State must:
(1) Identify the plans, projects or regulations subject to review,
based on their significance in terms of impacts on coastal resources,
potential for incompatibility with the State's coastal management
program, and having greater than local significance;
(2) Identify the State agency that will conduct this review;
(3) Include the criteria by which identified plans, projects and
regulations will be approved or disapproved;
(4) Have the power to approve or disapprove identified plans,
projects or regulations that are inconsistent with the management
program, or the power to seek court review thereof; and
(5) Provide public notice of reviews and the opportunity for public
hearing prior to rendering a decision on each case-by-case review.
Sec. 923.45 Air and water pollution control requirements.
The program must incorporate, by reference or otherwise, all
requirements established by the Federal Water Pollution Control Act, as
amended (Clean Water Act or CWA), or the Clean Air Act, as amended
(CAA), or established by the Federal Government or by any state or
local government pursuant to such Acts. Such requirements must be the
water pollution control and air pollution control requirements
applicable to such program. Incorporation of the air and water quality
requirements pursuant to the CWA and CAA should involve their
consideration during program development, especially with respect to
use determinations and designation of areas for special management. In
addition, this incorporation will prove to be more meaningful if close
coordination and working relationships between the State agency and the
air and water quality agencies are developed and maintained throughout
the program development process and after program approval.
Sec. 923.46 Organizational structure.
The State must be organized to implement the management program.
The management program must describe the organizational structure that
will be used to implement and administer the management program
including a discussion of those state and other agencies, including
local governments, that will have responsibility for administering,
enforcing and/or monitoring those authorities or techniques required
pursuant to the following subsections of the Act: 306(d)(3)(B);
306(d)(10); 306(d)(10) (A) and (B); 306(d) (11) and (12); and 307(f).
The management program must also describe the relationship of these
administering agencies to the state agency designated pursuant to
subsection 306(d)(6) of the Act.
Sec. 923.47 Designated State agency.
(a) For program approval, the Governor of the state must designate
a single state agency to receive and administer the grants for
implementing the management program.
(1) This entity must have the fiscal and legal capability to accept
and administer grant funds, to make contracts or other arrangements
(such as passthrough grants) with participating agencies for the
purpose of carrying out specific management tasks and to account for
the expenditure of the implementation funds of any recipient of such
monies, and
(2) This entity must have the administrative capability to monitor
and evaluate the management of the State's coastal resources by the
various agencies and/or local governments with specified
responsibilities under the management program (irrespective of whether
such entities receive section 306 funds); to make periodic reports to
the Office of Ocean and Coastal Resource Management (OCRM), the
Governor, or the State legislature, as appropriate, regarding the
performance of all agencies involved in the program. The entity also
must be capable of presenting evidence of adherence to the management
program or justification for deviation as part of the review by OCRM of
State performance required by section 312 of the Act.
(b) (1) The 306 agency designation is designed to establish a
single point of accountability for prudent use of administrative funds
in the furtherance of the management and for monitoring of management
activities. Designation does not imply that this single agency need be
a ``super agency'' or the principal implementation vehicle. It is,
however, the focal point for proper administration and evaluation of
the State's program and the entity to which OCRM will look when
monitoring and reevaluating a State's program during program
implementation.
(2) The requirement for the single designated agency should not be
viewed as confining or otherwise limiting the role and responsibilities
which may be assigned to this agency. It is up to the State to decide
in what manner and to what extent the designated State agency will be
involved in actual program implementation or enforcement. In
determining the extent to which this agency should be involved in
program implementation or enforcement, specific factors should be
considered, such as the manner in which local and regional authorities
are involved in program implementation, the administrative structure of
the State, the authorities to be relied upon and the agencies
administering such authorities. Because the designated State agency may
be viewed as the best vehicle for increasing the unity and efficiency
of a management program, the State may want to consider the following
in selecting which agency to designate:
(i) Whether the designated State entity has a legislative mandate
to coordinate other State or local programs, plans and/or policies
within the coastal zone;
(ii) To what extent linkages already exist between the entity,
other agencies, and local governments;
(iii) To what extent management or regulatory authorities affecting
the coastal zone presently are administered by the agency; and
(iv) Whether the agency is equipped to handle monitoring,
evaluation and enforcement responsibilities.
[[Page 33812]]
Sec. 923.48 Documentation.
A transmittal letter signed by the Governor is required for the
submission of a management program for federal approval. The letter
must state that the Governor:
(a) Has reviewed and approved as State policy, the management
program, and any changes thereto, submitted for the approval of the
Assistant Administrator.
(b) Has designated a single State agency to receive and administer
implementation grants;
(c) Attests to the fact that the State has the authorities
necessary to implement the management program; and
(d) Attests to the fact that the State is organized to implement
the management program.
Subpart F--Coordination, Public Involvement and National Interest
Sec. 923.50 General.
(a) Coordination with governmental agencies having interests and
responsibilities affecting the coastal zone, and involvement of
interest groups as well as the general public is essential to the
development and administration of State coastal management programs.
The coordination requirements of this subpart are intended to achieve a
proper balancing of diverse interests in the coastal zone. The policies
of section 303 of the Act require that there be a balancing of variety,
sometimes conflicting, interests, including:
(1) The preservation, protection, development and, where possible,
the restoration or enhancement of coastal resources;
(2) The achievement of wise use of coastal land and water resources
with full consideration for ecological, cultural, historic, and
aesthetic values and needs for compatible economic development;
(3) The involvement of the public, of Federal, state and local
governments and of regional agencies in the development and
implementation of coastal management programs;
(4) The management of coastal development to improve, safeguard,
and restore coastal water quality; and
(5) The study and development of plans for addressing the adverse
effects of coastal hazards, including erosion, flooding, land
subsidence and sea level rise.
(b) In order to be meaningful, coordination with and participation
by various units and levels of government including regional
commissions, interest groups, and the general public should begin early
in the process of program development and should continue throughout on
a timely basis to assure that such efforts will result in substantive
inputs into a State's management program. State efforts should be
devoted not only to obtaining information necessary for developing the
management program but also to obtaining reactions and recommendations
regarding the content of the management program and to responding to
concerns by interested parties. The requirements for intergovernmental
cooperation and public participation continue after program approval.
(c) This subpart deals with requirements for coordination with
governmental entities, interest groups and the general public to assure
that their interests are fully expressed and considered during the
program development process and that procedures are created to insure
continued consideration of their views during program implementation.
In addition, this subpart deals with mediation procedures for serious
disagreements between States and Federal agencies that occur during
program development and implementation. This subpart addresses the
requirements of the following subsections of the Act: 306(d)(1)--
Opportunity for Full Participation; 306(d)(3)(A)--Plan Coordination;
306(d)(3)(B)--Continued State-Local Consultation; 306(d)(4)--Public
Hearings; 306(d)(8)--Consideration of the National Interest in
Facilities; 307(b)--Federal Consultation; and 307(h)--Mediation.
Sec. 923.51 Federal-State consultation.
(a) The management program must be developed and adopted with the
opportunity of full participation by relevant Federal agencies and with
adequate consideration of the views of Federal agencies principally
affected by such program.
(b) By providing relevant Federal agencies with the opportunity for
full participation during program development and for adequately
considering the views of such agencies, States can effectuate the
Federal consistency provisions of subsections 307 (c) and (d) of the
Act once their programs are approved. (See 15 CFR part 930 for a full
discussion of the Federal consistency provisions of the Act.)
(c) In addition to the consideration of relevant Federal agency
views required during program development, Federal agencies have the
opportunity to provide further comment during the program review and
approval process. (See subpart G for details on this process.)
Moreover, in the event of a serious disagreement between a relevant
Federal agency and designated State agency during program development
or during program implementation, the mediation provisions of
subsection 307(h) of the Act are available. (See Sec. 923.54 for
details on mediation.)
(d) In order to provide an opportunity for participation by
relevant Federal agencies and give adequate consideration to their
views, each state must:
(1) Contact each relevant Federal Agency listed in Sec. 923.2(d)
and such other Federal agencies as may be relevant, owing to a State's
particular circumstances, early in the development of its management
program. The purpose of such contact is to develop mutual arrangements
or understandings regarding that agency's participation during program
development;
(2) Provide for Federal agency input on a timely basis as the
program is developed. Such input shall be related both to information
required to develop the management program and to evaluation of and
recommendations concerning various elements of the management program;
(3) Solicit statements from the head of Federal agencies identified
in Table 1 of Sec. 923.52(c)(1) as to their interpretation of the
national interest in the planning for and siting of facilities which
are more than local in nature;
(4) Summarize the nature, frequency, and timing of contacts with
relevant Federal agencies;
(5) Evaluate Federal comments received during the program
development process and, where appropriate in the opinion of the State,
accommodate the substance of pertinent comments in the management
program. States must consider and evaluate relevant Federal agency
views or comments about the following:
(i) Management of coastal resources for preservation, conservation,
development, enhancement or restoration purposes;
(ii) Statements of the national interest in the planning for or
siting of facilities which are more than local in nature;
(iii) Uses which are subject to the management program;
(iv) Areas which are of particular concern to the management
program;
(v) Boundary determinations;
(vi) Shorefront access and protecting planning, energy facility
planning and erosion planning processes; and
(vii) Federally developed or assisted plans that must be
coordinated with the management program pursuant to subsection
306(d)(3) of the Act.
[[Page 33813]]
(6) Indicate the nature of major comments by Federal agencies
provided during program development (either by including copies of
comments or by summarizing comments) and discuss any major differences
or conflicts between the management program and Federal views that have
not been resolved at the time of program submission.
Sec. 923.52 Consideration of the national interest in facilities.
(a) The management program must provide for adequate consideration
of the national interest involved in planning for, and managing the
coastal zone, including the siting of facilities such as energy
facilities which are of greater than local significance. In the case of
energy facilities, the State must have considered any applicable
national or interstate energy plan or program.
(b) The primary purpose of this requirement is to assure adequate
consideration by States of the national interest involved in the
planning for and siting of facilities (which are necessary to meet
other than local requirements) during:
(1) The development of the State's management program,
(2) The review and approval of the program by the Assistant
Administrator, and
(3) The implementation of the program as such facilities are
proposed.
(c) In order to fulfill this requirement, States must:
(1) Describe the national interest in the planning for and siting
of facilities considered during program development.
(2) Indicate the sources relied upon for a description of the
national interest in the planning for and siting of the facilities.
(3) Indicate how and where the consideration of the national
interest is reflected in the substance of the management program. In
the case of energy facilities in which there is a national interest,
the program must indicate the consideration given any national or
interstate energy plans or programs which are applicable to or affect a
state's coastal zone.
(4) Describe the process for continued consideration of the
national interest in the planning for and siting of facilities during
program implementation, including a clear and detailed description of
the administrative procedures and decisions points where such interest
will be considered.
Sec. 923.53 Federal consistency procedures.
(a) A State must include in its management program submission, as
part of the body of the submission an appendix or an attachment, the
procedures it will use to implement the Federal consistency
requirements of subsections 307 (c) and (d) of the Act. At a minimum,
the following must be included:
(1) An indication of whether the state agency designated pursuant
to subsection 306(d)(6) of the Act or a single other agency will handle
consistency review (see 15 CFR 930.18);
(2) A list of Federal license and permit activities that will be
subject to review (see 15 CFR 930.53);
(3) For States anticipating coastal zone effects from Outer
Continental Shelf (OCS) activities, the license and permit list also
must include OCS plans which describe in detail Federal license and
permit activities (see 15 CFR 930.74); and
(4) The public notice procedures to be used for certifications
submitted for Federal License and permit activities and, where
appropriate, for OCS plans (see 15 CFR 930.61 through 930.62 and
930.78).
(b) Beyond the minimum requirements contained in paragraph (a) of
this section, States have the option of including:
(1) A list of Federal activities, including development projects,
which in the opinion of the State agency are likely to significantly
affect the coastal zone and thereby will require a Federal agency
consistency determination (see 15 CFR 930.35); and
(2) A description of the types of information and data necessary to
assess the consistency of Federal license and permit activities and,
where appropriate, those described in detail in OCS plans (see 15 CFR
930.56 and 930.75).
Sec. 923.54 Mediation.
(a) Section 307(h) of the Act provides for mediation of serious
disagreement between any Federal agency and a coastal state in the
development and implementation of a management program. In certain
cases, mediation by the Secretary, with the assistance of the Executive
Office of the President, may be an appropriate forum for conflict
resolution.
(b) State-Federal differences should be addressed initially by the
parties involved. Whenever a serious disagreement cannot be resolved
between the parties concerned, either party may request the informal
assistance of the Assistant Administrator in resolving the
disagreement. This request shall be in writing, stating the points of
disagreement and the reason therefore. A copy of the request shall be
sent to the other party to the disagreement.
(c) If a serious disagreement persists, the Secretary or other head
of a relevant Federal agency, or the Governor or the head of the state
agency designated by the Governor as administratively responsible for
program development (if a state still is receiving section 305 program
development grants) or for program implementation (if a state is
receiving section 306 program implementation grants) may notify the
Secretary in writing of the existence of a serious disagreement, and
may request that the Secretary seek to mediate the serious
disagreement. A copy of the written request must be sent to the agency
with which the requesting agency disagrees and to the Assistant
Administrator.
(d) Secretarial mediation efforts shall last only so long as the
parties agree to participate. The Secretary shall confer with the
Executive Office of the President, as necessary, during the mediation
process.
(e) Mediation shall terminate:
(1) At any time the parties agree to a resolution of the serious
disagreement,
(2) If one of the parties withdraws from mediation,
(3) In the event the parties fail to reach a resolution of the
serious disagreement within 15 days following Secretarial mediation
efforts, and the parties do not agree to extend mediation beyond that
period, or
(4) For other good cause.
(f) The availability of the mediation services provided in this
section is not intended expressly or implicitly to limit the parties'
use of alternate forums to resolve disputes. Specifically, judicial
review where otherwise available by law may be sought by any party to a
serious disagreement without first having exhausted the mediation
process provided herein.
Sec. 923.55 Full participation by State and local governments,
interested parties, and the general public.
The management program must be developed and adopted with the
opportunity of full participation by state agencies, local governments,
regional commissions and organizations, port authorities, and other
interested public and private parties. To meet this requirement, a
State must:
(a) Develop and make available general information regarding the
program design, its content and its status throughout program
development;
(b) Provide a listing, as comprehensive as possible, of all
governmental agencies, regional
[[Page 33814]]
organizations, port authorities and public and private organizations
likely to be affected by or to have a direct interest in the
development and implementation of the management program;
(c) Indicate the nature of major comments received from interested
or affected parties, identified in paragraph (b)(2) of this section,
and the nature of the State's response to these comments; and
(d) Hold public meetings, workshops, etc., during the course of
program development at accessible locations and convenient times, with
reasonable notice and availability of materials.
Sec. 923.56 Plan coordination.
(a) The management program must be coordinated with local,
areawide, and interstate plans applicable to areas within the coastal
zone--
(1) Existing on January 1 of the year in which the state's
management program is submitted to the Secretary; and
(2) Which have been developed by a local government, an areawide
agency, a regional agency, or an interstate agency.
(b) A State must insure that the contents of its management program
has been coordinated with local, areawide and interstate plans
applicable to areas within the coastal zone existing on January 1 of
the year in which the State's management program is submitted to the
Assistant Administrator for approval. To document this coordination,
the management program must:
(1) Identify local governments, areawide agencies and regional or
interstate agencies which have plans affecting the coastal zone in
effect on January 1 of the year in which the management program is
submitted;
(2) List or provide a summary of contacts with these entities for
the purpose of coordinating the management program with plans adopted
by a governmental entity as of January 1 of the year in which the
management program is submitted. At a minimum, the following plans,
affecting a State coastal zone, shall be reviewed: Land use plans
prepared pursuant to section 701 of the Housing and Urban Development
Act of 1968, as amended; State and areawide waste treatment facility or
management plans prepared pursuant to sections 201 and 208 of the Clean
Water Act, as amended; plans and designations made pursuant to the
National Flood Insurance Act of 1968, as amended, and the Flood
Disaster Protection Act of 1973, as amended; hazard mitigation plans
prepared pursuant to section 409 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act; any applicable interstate energy
plans or programs developed pursuant to section 309 of the Act;
regional and interstate highway plans; plans developed by Regional
Action Planning Commission; and fishery management plans developed
pursuant to the Fisheries Conservation and Management Act.
(3) Identify conflicts with those plans of a regulatory nature that
are unresolved at the time of program submission and the means that can
be used to resolve these conflicts.
Sec. 923.57 Continuing consultation.
(a) As required by subsection 306(d)(3)(B) of the Act, a State must
establish an effective mechanism for continuing consultation and
coordination between the management agency designated pursuant to
paragraph (6) of section 306(d) of the Act and with local governments,
interstate agencies, regional agencies, and areawide agencies within
the coastal zone to assure the full participation of those local
governments and agencies in carrying out the purposes of this Act.
(b) The management program must establish a procedure whereby local
governments with zoning authority are notified of State management
program decisions which would conflict with any local zoning ordinance
decision.
(1) ``Management program decision'' refers to any major,
discretionary policy decisions on the part of a management agency, such
as the determination of permissible land and water uses, the
designation of areas or particular concern or areas for preservation or
restoration, or the decision to acquire property for public uses.
Regulatory actions which are taken pursuant to these major decisions
are not subject to the State-local consultation mechanisms. A State
management program decision is in conflict with a local zoning
ordinance if the decision is contradictory to that ordinance. A State
management program decision that consists of additional but not
contradictory requirements is not in conflict with a local zoning
ordinance, decision or other action;
(2) ``Local government'' refers to these defined in section 304(11)
of the Act which have some form of zoning authority.
(3) ``Local zoning ordinance, decision or other action'' refers to
any local government land or water use action which regulates or
restricts the construction, alteration of use of land, water or
structures thereon or thereunder. These actions include zoning
ordinances, master plans and official maps. A local government has the
right to comment on a State management program decision when such
decision conflicts with the above specified actions;
(4) Notification must be in writing and must inform the local
government of its right to submit comments to the State management
agency in the event the proposed State management program decision
conflicts with a local zoning ordinance, decision or other action. The
effect of providing such notice is to stay State action to implement
its management decision for at least a 30-day period unless the local
government waives its right to comment.
(5) ``Waiver'' of the right of local government to comment (thereby
permitting a State agency to proceed immediately with implementation of
the management program decision) shall result:
(i) Following State agency receipt of a written statement from a
local government indicating that it either:
(A) Waives its right to comment; or
(B) Concurs with the management program decision; or
(C) Intends to take action which conflicts or interferes with the
management program decision; or
(ii) Following a public statement by a local government to the same
effect as paragraph (b)(5)(i) of this section; or
(iii) Following an action by a local government that conflicts or
interferes with the management program decision.
(6) The management program shall include procedures to be followed
by a management agency in considering a local government's comments.
These procedures shall include, at a minimum, circumstances under which
the agency will exercise its discretion to hold a public hearing. Where
public hearings will be held, the program must set forth notice and
other hearing procedures that will be followed. Following State agency
consideration of local comments (when a discretionary public hearing is
not held) or following public hearing, the management agency shall
provide a written response to the affected local government, affected
local government, within a reasonable period of time and prior to
implementation of the management program decision, on the results of
the agency's consideration of public comments.
Sec. 923.58 Public hearings.
The management program must be developed and adopted after the
holding of public hearings. A State must:
(a) Hold a minimum of two public hearings during the course of
program
[[Page 33815]]
development, at least one of which will be on the total scope of the
coastal management program. Hearings on the total management program do
not have to be held on the actual document submitted to the Assistant
Administrator for section 306 approval. However, such hearing(s) must
cover the substance and content of the proposed management program in
such a manner that the general public, and particularly affected
parties, have a reasonable opportunity to understand the impacts of the
management program. If the hearing(s) are not on the management
document per se, all requests for such document must be honored and
comments on the document received prior to submission of the document
to the Assistant Administrator must be considered;
(b) Provide a minimum of 30 days public notice of hearing dates and
locations;
(c) Make available for public review, at the time of public notice,
all agency materials pertinent to the hearings; and
(d) Include a transcript or summary of the public hearing(s) with
the State's program document or submit same within thirty (30) days
following submittal of the program to the Assistant Administrator. At
the same time this transcript or summary is submitted to the Assistant
Administrator, it must be made available, upon request, to the public.
Subpart G--Review/Approval Procedures
Sec. 923.60 Review/approval procedures.
(a) All state management program submissions must contain an
environmental assessment at the time of submission of the management
program to OCRM for threshold review. In accordance with regulations
implementing the National Environmental Policy Act of 1969, as amended,
OCRM will assist the State by outlining the types of information
required. (See 40 CFR Sec. 1506.5 (a) and (b).)
(b) Upon submission by a State of its draft management program,
OCRM will determine if it adequately meets the requirements of the Act
and this part. Assuming positive findings are made and major revisions
to the State's draft management program are not required, OCRM will
prepare draft and final environmental impact statements, in accordance
with National Environmental Policy Act requirements. Because the review
process involves preparation and dissemination of draft and final
environmental impact statements and lengthy Federal agency review;
states should anticipate that it will take at least 7 months between
the time a state first submits a draft management program to OCRM for
threshold review and the point at which the Assistant Administrator
makes a final decision on whether to approve the management program.
Certain factors will contribute to lengthening or shortening this time
table; these factors are discussed in OCRM guidance on the review/
approval process. The OCRM guidance also recommends a format for the
program document submitted to the Assistant Administrator for review
and approval.
Subpart H--Amendments to and Termination of Approved Management
Programs
Sec. 923.80 General.
(a) This subpart establishes the criteria and procedures by which
amendments, modifications or other changes to approved management
programs may be made. This subpart also establishes the conditions and
procedures by which administrative funding may be terminated for
programmatic reasons.
(b) Any coastal state may amend or modify a management program
which it has submitted and which has been approved by the Assistant
Administrator under this subsection, subject to the conditions provided
for subsection 306(e) of the Act.
(c) As required by subsection 312(d) of the Act, the Assistant
Administrator shall withdraw approval of the management program of any
coastal state and shall withdraw financial assistance available to that
state under this title as well as any unexpended portion of such
assistance, it the Assistant Administrator determines that the coastal
state has failed to take the actions referred to in subsection
312(c)(2)(A) of the Act.
(d) For purposes of this subpart, amendments are defined as
substantial changes in one or more of the following coastal management
program areas:
(1) Uses subject to management;
(2) Special management areas;
(3) Boundaries;
(4) Authorities and organization; and
(5) Coordination, public involvement and the national interest.
(e) OCRM will provide guidance on program changes. The five program
management areas identified in Sec. 923.80(d) are also discussed in
subpart B through F of this part.
Sec. 923.81 Requests for amendments.
(a) Requests for amendments shall be submitted to the Assistant
Administrator by the Governor of a coastal state with an approved
management program or by the head of the state agency (designated
pursuant to subsection 306(d)(6) of the Act) if the Governor had
delegated this responsibility and such delegation is part of the
approved management program. Whenever possible, requests should be
submitted prior to final State action to implement the amendment. At
least one public hearing must be held on the proposed amendment,
pursuant to subsection 306(d)(4) of the Act. Pursuant to section 311 of
the Act, notice of such public hearing(s) must be announced at least 30
days prior to the hearing date. At the time of the announcement,
relevant agency materials pertinent to the hearing must be made
available to the public.
(b) Amendment requests must contain the following:
(1) A description of the proposed change, including specific pages
and text of the management program that will be changed if the
amendment is approved by the Assistant Administrator. This description
shall also identify any enforceable policies to be added to the
management program;
(2) explanation of why the change is necessary and appropriate,
including a discussion of the following factors, as relevant; changes
in coastal zone needs, problems, issues, or priorities. This discussion
also shall identify which findings, if any made by the Assistant
Administrator in approving the management program may need to be
modified if the amendment is approved;
(3) A copy of public notice(s) announcing the public hearing(s) on
the proposed amendments;
(4) A summary of the hearing(s) comments:
(i) Where OCRM is providing Federal agency review concurrent with
the notice period for the State's public hearing, this summary of
hearing(s) comments may be submitted to the Assistant Administrator
within 60 days after the hearing;
(ii) Where hearing(s) summaries are submitted as a supplement to
the amendment request (as in the case described in paragraph (b)(1) of
this section), the Assistant Administrator will not take final action
to approve or disapprove an amendment request until the hearing(s)
summaries have been received and reviewed; and
(5) Documentation of opportunities provided relevant Federal,
State, regional and local agencies, port authorities and other
interested public and private parties to participate in the development
and approval at the State level of the proposed amendment.
[[Page 33816]]
Sec. 923.82 Amendment review/approval procedures.
(a) Upon submission by a State of its amendment request, OCRM will
review the request to determine preliminarily if the management
program, if changed according to the amendment request, still will
constitute an approvable program. In making this determination, OCRM
will determine whether the state has satisfied the applicable program
approvability criteria of subsection 306(d) of the Act.
(b) If the Assistant Administrator, as a preliminary matter,
determines that the management program, if changed, would no longer
constitute an approvable program, or if any of the procedural
requirements of section 306(d) of the Act have not been met, the
Assistant Administrator shall advise the state in writing of the
reasons why the amendment request cannot be considered.
(c) If the Assistant Administrator, as a preliminary matter,
determines that the management program, if changed, would still
constitute an approvable program and that the procedural requirements
of section 306(d) of the Act have been met, the Assistant Administrator
will then determine, pursuant to the National Environmental Policy Act
of 1969, as amended, whether an environmental impact statement (EIS) is
required.
Sec. 923.89 Mediation of amendments.
(a) Section 307(h)(2) of the Act provides for mediation of
``serious disagreements'' between a Federal agency and a coastal State
during administration of an approved management program. Accordingly
mediation is available to states or federal agencies when a serious
disagreement regarding a proposed amendment arises.
(b) Mediation may be requested by a Governor or head of a state
agency designated pursuant to subsection 306(d)(6) or by the head of a
relevant federal agency. Mediation is a voluntary process in which the
Secretary of Commerce attempts to mediate between disagreeing parties
over major problems. (See Sec. 923.54).
Sec. 923.84 Routine program changes.
(a) Further detailing of a State's program that is the result of
implementing provisions approved as part of a State's approved
management program, that does not result in the type of action
described in Sec. 923.80(d), will be considered a routine program
change. While a routine change is not subject to the amendment
procedures contained in Secs. 923.81 through 923.82, it is subject to
mediation provisions of Sec. 923.83.
(b) (1) States must notify OCRM of routine program change actions
in order that OCRM may review the action to ensure it does not
constitute an amendment. The state notification shall identify any
enforceable policies to be added to the management program, and explain
why the program change will not result in the type of action described
in Sec. 923.80(d).
(i) States have the option of notifying OCRM of routine changes on
a case-by-case basis, periodically throughout the year, or annually.
(ii) In determining when and how often to notify OCRM of such
actions, States should be aware that Federal consistency will apply
only after the notice required by paragraph (b)(4) of this section has
been provided.
(2) Concurrent with notifying OCRM, States must provide notice to
the general public and affected parties, including local governments,
other State agencies and regional offices of relevant federal agencies
of the notification given OCRM.
(i) This notice must:
(A) Describe the nature of the routine program change and identify
any enforceable policies to be added to the management program if the
State's request is approved;
(B) Indicate that the State considers it to be a routine program
change and has requested OCRM's concurrence in that determination; and
(C) Indicate that any comments on whether or not the action does or
does not constitute a routine program change may be submitted to OCRM
within 3 weeks of the date of issuance of the notice.
(ii) Where relevant Federal agencies do not maintain regional
offices, notice must be provided to the headquarters office.
(3) Within 4 weeks of receipt of notice from a State, OCRM will
inform the State whether it concurs that the action constitutes a
routine program change. Failure to notify a State in writing within 4
weeks of receipt of notice shall be considered concurrence.
(4) Where OCRM concurs, a State then must provide notice of this
fact to the general public and affected parties, including local
governments, other State agencies and relevant Federal agencies.
(i) This notice must:
(A) Indicate the date on which the State received concurrence from
OCRM that the action constitutes a routine program change;
(B) Reference the earlier notice (required in paragraph (b)(2) of
this section) for a description of the content of the action; and
(C) Indicate if Federal consistency applies as of the date of the
notice called for in this paragraph.
(ii) Federal consistency shall not be required until this notice
has been provided.
(5) Where OCRM does not concur, a State will be advised to:
(1) submit the action as an amendment, subject to the provisions of
Secs. 923.81 through 923.82; or
(ii) resubmit the routine program change with additional
information requested by OCRM concerning how the program will be
changed as a result of the action.
Subpart I--Applications for Program Development or Implementation
Grants
Sec. 923.90 General.
(a) The primary purpose of development grants made pursuant to
section 305 of the Act is to assist coastal States in the development
of comprehensive coastal management programs that can be approved by
the Assistant Administrator. The primary purpose of implementation
grants made pursuant to section 306 of the Act is to assist coastal
States in implementing coastal management programs following their
approval, including especially administrative actions to implement
enforceable program policies, authorities and other management
techniques. The purpose of the guidelines in this subpart is to define
the procedures by which grantees apply for and administer grants under
the Act. These guidelines shall be used and interpreted in conjunction
with applicable Federal laws and policies, Department of Commerce
grants management regulations, policies and procedures, and any other
applicable directives from the NOAA Grants Management Division and OCRM
program offices.
(b) Grants awarded to a State must be expended for the development
or administration, as appropriate, of a management program that meets
the requirements of the Act, and in accordance with the terms of the
award.
(c) All applications for funding under section 305 or 306 of the
Act, including proposed work programs, funding priorities and
allocations are subject to the discretion of the Assistant
Administrator.
(d) For purposes of this subpart, the term ``development grant''
means a grant awarded pursuant to subsection 305(a) of the Act.
``Administrative grant'' and ``implementation grant'' are
[[Page 33817]]
used interchangeably and mean grants awarded pursuant to subsection
306(a) of the Act.
(e) All application and preapplication forms are to be requested
from and submitted to: National Oceanic and Atmospheric Administration,
Office of Ocean and Coastal Resource Management, Coastal Programs
Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910.
Sec. 923.91 State responsibility.
(a) Applications for program grants are required to be submitted by
the Governor of a participating state or by the head of the state
entity designated by the Governor pursuant to subsection 306(d)(6) of
the Act.
(b) In the case of a section 305 grant, the application must
designate a single state agency or entity to receive development grants
and to be responsible for development of the State's coastal management
program. The designee need not be that entity designated by the
Governor pursuant to subsection 306(d)(6) of the Act as a single agency
to receive and administer implementation grants.
(c) One State application will cover all program activities for
which program development or implementation funds under this Act and
matching State funds are provided, irrespective of whether these
activities will be carried out by State agencies, areawide or regional
agencies, local governments, or interstate entities.
(d) The designated state entity shall be fiscally responsible for
all expenditures made under the grant, including expenditures by
subgrantees and contractors.
Sec. 923.92 Allocation.
(a) Subsections 303(4), 306(d)(3)(B) and 306(d)(10) of the Act
foster intergovernmental cooperation in that a state, in accordance
with its coastal zone management program, may allocate some of its
coastal zone management responsibilities to several agencies, including
local governments, areawide agencies, regional agencies and interstate
agencies. Such allocations provide for continuing consultation and more
effective participation and cooperation among state and local
governments, interstate, regional and areawide agencies.
(b) A State may allocate a portion or portions of its grant to
other State agencies, local governments, areawide or regional agencies,
interstate entities, or Indian tribes, if the work to result from such
allocation(s) will contribute to the effective development or
implementation of the State's management program.
(1) Local governments. Should a State desire to allocate a portion
of its grant to a local government, units of general-purpose local
government are preferred over special-purpose units of local
government. Where a State will be relying on direct State controls as
provided for in subsection 306(d)(11)(B) of the Act, pass-throughs to
local governments for local planning, regulatory or administrative
efforts under a section 306 grant cannot be made, unless they are
subject to adequate State overview and are part of the approved
management program. Where the approved management program provides for
other specified local activities or one-time projects, again subject to
adequate State overview, then a portion of administrative grant funds
may be allocated to local governments.
(2) Indian Tribes. Tribal participation in coastal management
efforts may be supported and encouraged through a State's program.
Individual tribes or groups of tribes may be considered regional
agencies and may be allocated a portion of a State's grant for the
development of independent tribal coastal management programs or the
implementation of specific management projects provided that:
(i) The State certifies that such tribal programs or projects are
compatible with its approved coastal management policies; and
(ii) On excluded tribal lands, the State demonstrates that the
tribal program or project would or could directly affect the State's
coastal zone.
Sec. 923.93 Eligible implementation costs.
(a) Costs claimed must be beneficial and necessary to the
objectives of the grant project. As used herein the terms cost and
grant project pertain to both the Federal and the matching share.
Allowability of costs will be determined in accordance with the
provisions of OMB Circular A-87: Cost Principles for State, Local and
Indian Tribal Governments.
(b) Federal funds awarded pursuant to section 306 of the Act may
not be used for land acquisition purposes and may not be used for
construction purposes. These costs may be eligible, however, pursuant
to section 306A of the Act.
(c) The primary purpose for which implementation funds, pursuant to
section 306 of the Act, are to be used is to assure effective
implementation and administration of the management program, including
especially administrative actions to implement enforceable program
policies, authorities and other management techniques. Implementation
activities should focus on achieving the policies of the Act.
(d) Section 306 funding in support of any of these purposes may be
used to fund, among other things:
(1) Personnel costs,
(2) Supplies and overhead,
(3) Equipment, and
(4) Feasibility studies and preliminary engineering reports.
(e) States are encouraged to coordinate administrative funding
requests with funding possibilities pursuant to sections 306A, 308,
309, 310 and 315 of the Act, as well as with funding possibilities
pursuant to section 6217 of the Coastal Zone Act Reauthorization
Amendments of 1990. When in doubt as to the appropriate section of the
Act under which to request funding, States should consult with OCRM.
States should consult with OCRM on technical aspects of consolidating
requests into a single application.
Sec. 923.94 Application for program development or implementation
grants.
(a) OMB Standard Form 424 (4-92) and the NOAA Application Kit for
Federal Assistance constitute the formal application. An original and
two (2) copies must be submitted 45 days prior to the desired grant
beginning date. The application must be accompanied by evidence of
compliance with E.O. 12372 requirements including the resolution of any
problems raised by the proposed project. The administrative
requirements for grants and subawards, under this program, to state,
local and Indian tribal governments are set out in 15 CFR Part 24. The
administrative requirements for other entities are prescribed under OMB
Circular A-110: Administrative Requirements for Grants and Agreements
with Institutions of Higher Education, Hospitals and Other Non-Profit
Organizations.
(b) Costs claimed as charges to the grant project must be
beneficial and necessary to the objectives of the grant project. As
used herein, the terms ``cost'' and ``grant project'' pertain to both
the Federal amount awarded and the non-federal matching share.
Allowability of costs will be determined in accordance with the
provisions of OMB Circular A-87: Cost Principles for State, Local and
Indian Tribal Governments. Eligible implementation costs also shall be
determined in accordance with Sec. 923.93 of these regulations.
Allowability of costs for non-profit organizations will be determined
in accordance with OMB Circular A-122: Cost Principles for Non-Profit
Organizations. Allowability of
[[Page 33818]]
costs for institutions of higher education will be determined in
accordance with OMB Circular A-21: Cost Principles for Educational
Institutions.
(c) In the grant application, the applicant must describe clearly
and briefly the activities that will be undertaken with grant funds in
support of implementation and administration of the management program.
This description must include:
(1) An identification of those elements of the approved management
program that are to be supported in whole or in part by the Federal and
the matching share,
(2) A clear statement of the major tasks required to implement each
element,
(3) For each task the application must:
(i) Specify how it will be accomplished and by whom;
(ii) Identify any sub-awardees (other State agencies, local
governments, individuals, etc.) that will be allocated responsibility
for carrying out all or portions of the task, and indicate the
estimated cost of the sub-awards for each allocation; and
(iii) Indicate the estimated total cost.
(4) The sum of all task costs in paragraph (c)(3) of this section
should equal the total estimated grant project cost.
(d) For program development grants, when evaluating whether a State
is making satisfactory progress toward completion of an approvable
management program which is necessary to establish eligibility for
subsequent grants, the Assistant Administrator will consider:
(1) The progress made toward meeting management program goals and
objectives;
(2) The progress demonstrated in completing the past year's work
program;
(3) The cumulative progress toward meeting the requirements for
preliminary or final approval of a coastal management program;
(4) The applicability of the proposed work program to fulfillment
of the requirements for final approval; and
(5) The effectiveness of mechanisms for insuring public
participation and consultation with affected Federal, State, regional
and local agencies in program development.
Sec. 923.95 Approval of applications.
(a) The application for a grant by any coastal State which complies
with the policies and requirements of the Act and these guidelines
shall be approved by the NOAA Grants Officer, upon recommendation by
the Assistant Administrator, assuming available funding.
(b) Should an application be found deficient, the Assistant
Administrator will notify the applicant in detail of any deficiency
when an application fails to conform to the requirements of the Act or
these regulations. Conferences may be held on these matters.
Corrections or adjustments to the application will provide the basis
for resubmittal of the application for further consideration and
review.
(c) The NOAA Grants Officer, upon recommendation by the Assistant
Administrator, may waive appropriate administrative requirements
contained in this subpart, upon finding of extenuating circumstances
relating to applications for assistance.
Sec. 923.96 Grant amendments.
(a) Actions that require an amendment to a grant award such as a
request for additional Federal funds, changes in the amount of the non-
Federal share, changes in the approved project budget as specified in
15 CFR Part 24, or extension of the grant period must be submitted to
the Assistant Administrator and approved in writing by the NOAA Grants
Officer prior to initiation of the contemplated change. Such requests
should be submitted at least 30 days prior to the proposed effective
date of the change and, if appropriate, accompanied by evidence of
compliance with E.O. 12372 requirements.
(b) NOAA shall acknowledge receipt of the grantee's request within
the ten (10) working days of receipt of the correspondence. This
notification shall indicate NOAA's decision regarding the request; or
indicate a time-frame within which a decision will be made.
PART 926--[REMOVED]
5. Part 926 which is currently reserved is removed.
PART 927--[REDESIGNATED AS PART 923, SUBPART J]
6. Part 927, consisting of Sec. 927.1, is redesignated as Subpart J
of Part 923, consisting of Sec. 923.110.
PART 928--[REDESIGNATED AS PART 923, SUBPART L]
7. Part 928 is redesignated as Subpart L of Part 923, and
Secs. 928.1 through 928.5 are redesignated as Secs. 923.131 through
923.135 in the Subpart.
Sec. 923.131 [Amended]
8. Redesignated Sec. 923.131 is amended by replacing the two
references to ``This part'' in the introductory text with references to
``This subpart.''
Sec. 923.133 [Amended]
9. Redesignated Sec. 923.133 is amended by changing the references
to 15 CFR 928.3 and 928.4 in paragraph (b)(9), the reference to
Sec. 928.3(d) in paragraph (c)(2), and the reference to
Sec. 928.3(c)(4) in paragraph (d)(2), as references to Secs. 923.133
and 923.134, Sec. 923.132(d) and Sec. 923.133(c)(4), respectively.
Sec. 923.134 [Amended]
10. Redesignated Sec. 923.134 is amended by changing the reference
to 15 CFR 928.3(b)(7) in paragraph (b)(3) as a reference to
Sec. 923.133(b)(7).
Sec. 923.135 [Amended]
11. Redesignated Sec. 923.135 is amended as follows:
(1) by changing the reference to 15 CFR 928.5(a)(3) in paragraph
(a)(2)(i) as a reference to Sec. 923.135(a)(3),
(2) by changing the reference to 15 CFR 928.4 in paragraph
(a)(2)(ii) as a reference to Sec. 923.134,
(3) by changing the reference to 15 CFR 923.81(c) in paragraph
(a)(3)(i)(G) as a reference to 15 CFR 923.81(a), and
(4) by changing the four references to 15 CFR 928.5(a)(2) in
paragraphs (b)(2) (i) and (iii) as references to Sec. 923.135(a)(2).
PART 932--[REDESIGNATED AS PART 923, SUBPART K]
12. Part 932 is redesignated as Subpart K of Part 923, and
Secs. 932.1 through 932.8 are redesignated as Secs. 923.121 through
923.128 in the Subpart.
13. Redesignated Sec. 923.121 is amended by revising paragraph (h)
to read as follows:
Sec. 923.121 General
* * * * *
(h) All application forms are to be requested from and submitted
to: National Oceanic and Atmospheric Administration, Office of Ocean
and Coastal Resources Management, Coastal Programs Division, 1305 East-
West Highway (N/ORM3), Silver Spring, MD 20910.
14. Redesignated Sec. 923.121 is further amended as follows:
(1) by changing the references to ``this part'' in paragraphs (a)
and (b) with references to ``this subpart'', and
(2) by changing the reference to 15 CFR 932.8 in paragraph (b)(1)
as a reference to Sec. 923.128.
Sec. 923.123 [Amended]
15. Redesignated Sec. 923.123 is amended as follows:
(1) in paragraph (a), by replacing ``routine program
implementation'' with ``routine program change'',
[[Page 33819]]
(2) in the footnote in paragraph (b), the address is revised to
read: ``Office of Ocean and Coastal Resource Management, Coastal
Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD
20910'', and
(3) by changing the reference to 15 CFR 932.5(a) in paragraph (d)
and the reference to 15 CFR 932.5(b) in paragraph (e), as references to
Secs. 923.125(a) and 923.125(b), respectively.
Sec. 923.124 [Amended]
16. Redesignated Sec. 923.124 is amended as follows:
(1) by changing the reference to 15 CFR 932.1(b) and 15 CFR
927.1(c) in paragraph (d)(1)(i) as references to Sec. 0923.121(b) and
923.110(c), respectively,
(2) by changing the reference to 15 CFR 932.4(d) in paragraph
(d)(1)(iii) as a reference to Sec. 923.124(d),
(3) by changing the reference to 15 CFR 932.8 in paragraph (d)(3)
as a reference to Sec. 923.128,
(4) by changing the references to 15 CFR 932.4(d), 15 CFR 932.3(d)
and 15 CFR 932.5(b) in paragraph (e) as references to Secs. 923.124(d),
923.123(d), and 923.125(b), respectively, and
(5) by changing the references to 15 CFR 932.4(b), 15 CFR 932.4(c),
15 CFR 932.4(d) and 15 CFR 932.4(e) in paragraph (f) as references to
Secs. 923.124(b), 923.124(c), 923.124(d) and 923.124(e), respectively.
Sec. 923.125 [Amended]
17. Redesignated Sec. 923.125 is amended as follows:
(1) by changing the reference to 15 CFR 932.6(b)(1) in paragraph
(a)(1)(v) as a reference to Sec. 923.126(b)(1),
(2) by changing the reference to 15 CFR 932.3(e) in paragraph
(b)(2)(ii) as a reference to Sec. 923.123(e),
(3) by changing the reference to 15 CFR 932.3(f) in paragraph
(b)(2)(iii) as a reference to Sec. 923.123(f), and
(4) by changing the references to Sec. 932.5(a) and 15 CFR 932.5(b)
in paragraph (c) as references to Secs. 923.125(a) and 923.125(b),
respectively.
18. Redesignated Sec. 923.125 is further amended by removing
footnote two in paragraph (a)(1)(ii).
Sec. 923.126 [Amended]
19. Redesignated Sec. 923.126 is amended as follows:
(1) by changing the references to 15 CFR 932.6(b) and 15 CFR
932.1(b) in paragraph (a) as references to Sec. 923.126(b) and
923.121(b), respectively,
(2) by changing the reference to 15 CFR 923.95(d)(3)(ii) in
paragraph (b)(1)(iii) as a reference to Sec. 923.94(d)(3)(ii),
(3) by changing the references to 15 CFR 932.5(a) and 15 CFR
932.5(b) in paragraph (b)(4) as references to Sec. 923.125(a) and
923.125(b), respectively,
(4) by changing the reference to 15 CFR 932.3(a) in paragraph
(b)(7) as a reference to Sec. 923.123(a),
(5) by changing the references to 15 CFR 932.5(a) and 15 CFR
932.4(d) in paragraph (b)(8) as references to Secs. 923.125(a) and
923.124(d), respectively,
(6) by changing the references to 15 CFR 932.5(a) and 15 CFR
932.5(b) in paragraph (c)(3) as references to Sec. 923.125(a) and
923.125(b), respectively,
(7) by changing the references to 15 CFR 932.5(a) and 15 CFR
932.4(d) in paragraph (c)(4) as references to Secs. 923.125(a) and
923.124(d), respectively, and
(8) by changing the reference to subpart J of 15 CFR part 923 in
paragraph (c)(5) as a reference to subpart I of 15 CFR part 923.
Sec. 923.127 [Amended]
20. Redesignated Sec. 923.127 is amended as follows:
(1) by changing the reference to subpart J of 15 CFR part 923 in
paragraph (a) as a reference to subpart I of 15 CFR part 923,
(2) by changing the reference to 15 CFR 932.6(b)(1) in paragraph
(b) as a reference to Sec. 923.126(b)(1),
(3) by changing the reference to subpart J of 15 CFR part 923 in
paragraph (c) as a reference to subpart I of 15 CFR part 923, and
(4) by changing the reference to 15 CFR 932.6(c)(2) in paragraph
(e) as a reference to Sec. 923.126(c)(2).
PART 933--COASTAL ZONE MANAGEMENT RESEARCH AND TECHNICAL ASSISTANCE
[Removed]
21. Part 933 is removed.
* * * * *
[FR Doc. 96-16402 Filed 6-27-96; 8:45 am]
BILLING CODE 3510-08-M
