(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 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.
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