31 Tex. Admin. Code § 30.20 - Consistency Determinations for Federal Agency Activities and Development Projects
(a) Review of a
Consistency Determination. When reviewing a federal agency activity or
development project for consistency with the goals and enforceable policies of
the CMP, the GLO shall follow the requirements and procedures provided in 15
CFR Part 930, subpart C.
(b)
Required Information for a Consistency Determination. A federal agency
considering the approval of a federal agency activity or development project
listed in §
30.12 of this chapter (relating to
Federal Listed Activities Subject to CZMA Review) shall provide the GLO with a
consistency determination that incorporates the information described in
15 CFR §
930.39 as early as practicable, but no later
than 90 days prior to final approval of the activity. The consistency
determination shall include a detailed description of the activity, its
associated facilities, and their coastal effects, and comprehensive data and
information sufficient to support the federal agency's consistency statement.
The amount of detail in the evaluation of the enforceable policies, activity
description and supporting information shall be commensurate with the expected
coastal effects of the activity. The federal agency may submit the information
in any manner it chooses, so long as the requirements of subpart C are
satisfied as set out in 15 CFR in §930.39. Additionally, the consistency
determination should include a brief statement indicating whether the proposed
activity will be undertaken in a manner consistent to the maximum extent
practicable with the enforceable policies of the CMP in accordance with
15 CFR §
930.39(a).
(c) Request for Information. GLO staff may
request information from a federal agency if the federal agency provides an
incomplete consistency determination, the GLO notifies the federal applicant in
accordance with federal regulations of the incomplete submission, and the
requested information is the type of information required for a consistency
determination review as identified in
15 CFR §
930.39(a).
(d) NEPA or Other Project Documents. A
federal agency may provide the GLO with information contained in NEPA documents
or other project documents to provide some of the comprehensive data and
information sufficient to support the federal agency's consistency
determination under 15 CFR §
930.39(a).
(e) Demonstration of Consistency. If a
federal agency elects to rely on information contained in NEPA documents or
other project documents to demonstrate consistency to the maximum extent
practicable with the goals and enforceable policies of the CMP, the federal
agency should demonstrate how the materials support a finding of consistency of
the goals and enforceable policies of the CMP, in accordance with
15 CFR §
930.39(a). This section
notes that a consistency determination embedded within a NEPA document should
meet all of the information requirements of
15 CFR §
930.39(a), which can include
a reference to the findings of the NEPA document. Federal agencies are not
required to file applications for state and local permits and other
authorizations, unless required to do so by provisions of federal law other
than the CZMA. However, federal agencies are required to demonstrate that the
proposed activity is consistent to the maximum extent practicable with the
applicable state and local enforceable policies underlying the permits. Where
the law authorizes or requires a federal agency to apply for state and local
permits and other authorizations, the GLO will consider such applications when
determining whether the federal activity or development project is consistent
with the enforceable policies underlying the permit or authorization. See
15 CFR §
930.39(a).
(f) Public Participation. The GLO shall
provide public participation consistent with the provisions of
15 CFR §
930.42. The GLO may also issue joint public
notices with the federal agency involved. The GLO may extend the public comment
period or schedule a public meeting on the consistency determination. Comments
received in response to the public notice will be considered.
(g) Referral to Commissioner. To refer a
matter to the commissioner for an elevated consistency review, at least three
committee members must agree that a significant unresolved issue exists
regarding consistency with the CMP goals and enforceable policies. At least
three committee members must also submit in writing a letter or email addressed
to the CMP coordinator that requests the matter at issue to be referred to the
commissioner for an elevated consistency review. The referral letter or email
should identify any enforceable policies that are unresolved and address any
potential impacts to coastal natural resource areas.
(h) Commissioner Review. Following referral
of a federal agency activity or development project to the commissioner for an
elevated consistency review, the commissioner shall consider:
(1) oral or written testimony received during
the comment period. The commissioner may reasonably limit the length and format
of the testimony and the time at which it may be received;
(2) applicable CMP goals and enforceable
policies set out in 31 Texas Administrative Code Ch. 26;
(3) information submitted by the federal
agency or applicant; and
(4) other
relevant information to determine whether the proposed action is consistent
with the CMP goals and enforceable policies.
(i) Review Period. The GLO will provide a
decision or status update to the federal agency within sixty (60) days from
receipt of the administratively complete consistency determination. If the GLO
is unable to complete the review of the consistency determination within the
initial sixty (60) day review period, the GLO will notify the federal agency in
writing of the status of the review, the basis for delay, and the GLO will
follow the procedures set out in
15 CFR §
930.36(b)(2) if an
additional fifteen (15) days for review is necessary. If no action is taken by
the GLO after sixty (60) days from the date an administratively complete
consistency determination was submitted and additional time is not sought under
15 CFR §
930.36(b)(2), the federal
agency may presume the GLO's concurrence.
(j) Commissioner Objection. If the
commissioner objects to the consistency determination, the federal agency will
be notified of the objection by the GLO prior to the time, including any
extensions, that the federal agency is entitled to presume the activity's
consistency. The content of the commissioner's objection will conform to the
requirements set out in 15
CFR §
930.43.
(k) Mediation. If the commissioner finds that
a proposed activity is inconsistent with the CMP goals and enforceable policies
and the federal agency does not modify the activity to achieve consistency with
the program, the governor, with the assistance of the commissioner, may seek
secretarial mediation or OCM mediation as set out in
15 CFR §§
930.110 et seq.
(l) Final Approval. Final federal agency
action for a federal agency activity identified in §
30.12(a) of this
chapter shall not be taken sooner than ninety (90) days from the receipt by the
GLO of the consistency determination, unless the federal agency and GLO agree
to an alternative period of time or unless the GLO concurs or the concurrence
is presumed.
Notes
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