02-26903. Federal Consistency Appeal by Barnes Nursery, Inc. From an Objection by the Ohio Department of Natural Resources

AGENCY:

National Oceanic and Atmospheric Administration.

ACTION:

Notice of appeal and request for comments.

SUMMARY:

Barnes Nursery, Inc. has filed a notice of appeal with the Department of Commerce asking that the Secretary of Commerce override the Ohio Department of Natural Resources' objection to the Barnes Nursery, Inc. after-the-fact permit to maintain an excavated channel and berm system intended to store water for agricultural purposes. This project is located in Erie County, Ohio adjacent to east Sandusky Bay.

DATES:

Public comments on the appeal are due within 60 days of the publication of this notice.

ADDRESSES:

Comments should be sent to Molly Holt, Attorney-Adviser, Office of the Assistant General Counsel for Ocean Services, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, 1305 East-West Highway, Room 6111, Silver Spring, MD 20910. Public filings made by the parties to the appeal may be available at the NOAA Office of the Assistant General Counsel for Ocean Services and the offices of the Ohio Department of Natural Resources, 1952 Belcher Drive—Bldg. C-4, Columbus, OH 43215.

FOR ADDITIONAL INFORMATION CONTACT:

Molly Holt, Attorney-Adviser, Office of the Assistant General Counsel for Ocean Services, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, 1305 East-West Highway, Room 6111, Silver Spring, MD 20910 or at 301-713-2967, extension 215.

SUPPLEMENTARY INFORMATION:

I. Notice of Appeal

On July 10, 20001, Barnes Nursery, Inc. (Appellant) filed a notice of appeal with the Secretary of Commerce (Secretary) pursuant to section 307(c)(3)(A) of the Coastal Zone Management Act of 1972 (CZMA), as amended, 16 U.S.C. 1451 et seq., and the Department of Commerce's implementing regulations, 15 CFR part 930, subpart H (revised, effective January 8, 2001). The appeal is taken from an objection by the Ohio Department of Natural Resources (state) to the Appellant's consistency certification for a U.S. Army Corps of Engineers' after-the-fact permit to maintain an excavated channel and berm system intended to store water for agricultural purposes. This project is located in Erie County, Ohio adjacent to East Sandusky Bay.

The CZMA provides that a timely objection by a state precludes any federal agency from issuing licenses or permits for the activity unless the Secretary finds that the activity is either “consistent with the objectives” of the CZMA (Ground I) or “necessary in the interest of national security” (Ground II). Section 307(c)(3)(A). To make such a determination, the Secretary must find that the proposed project satisfies the requirements of 15 CFR 930.121 or 930.122.

The Appellant requests that the Secretary override the State's consistency objections based on Ground I. To make the determination that the proposed activity is “consistent with the objectives” of the CZMA, the Secretary must find that: (1) The proposed activity furthers the national interest as articulated in section 302 or 303 of the CZMA, in a significant or substantial manner, (2) the adverse effects of the proposed activity do not outweigh its contribution to the national interest, when those effects are considered separately or cumulatively, and (3) no reasonable alternative is available that would permit the activity to be conducted in a manner consistent with enforceable policies of the Ohio Department of Natural Resources' management program. 15 CFR 930.121.

II. Public Comments

Public comments are invited on the findings that the Secretary must make as set forth in the regulations at 15 CFR 930.121. Comments are due within 60 days of the publication of this notice and should be sent to Molly Holt, Attorney-Adviser, Office of the Assistant General Counsel for Ocean Services, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, 1305 East-West Highway, Room 6111, Silver Spring, MD 20910. Copies of comments will also be forwarded to the Appellant and the State.

III. Appeal Documents

All nonconfidential documents submitted in this appeal are available for public inspection during business hours at the NOAA Office of the Assistant General Counsel for Ocean Services and the Ohio Department of Natural Resources.

[Federal Domestic Assistance Catalog No. 11.419 Coastal Zone Management Program Assistance.]

Dated: October 1, 2002.

James R. Walpole,

General Counsel.