(a) Review of a Consistency Certification. When reviewing
a consistency certification submitted by a non-federal applicant for
a federal license or permit activity listed under §30.12 of this
chapter, the GLO shall conform to the requirements and procedures
set out in 15 CFR Part 930, subpart D. The federal license or permit
activity must be consistent with the CMP goals and enforceable policies.
(b) Required Information for a Consistency Certification.
For review of a federal license or permit activity application, an
applicant must submit to the GLO a complete consistency certification
in conformance with 15 CFR §930.57 and all necessary data and
information described in 15 CFR §930.58 and including the following:
(1) all material relevant to the CMP provided to the
federal agency in support of the application;
(2) a detailed description of the proposed activity,
its associated facilities, the coastal effects, and any other information
relied upon by the applicant to make its certification. Maps, diagrams,
and technical data shall be submitted when a written description alone
will not adequately describe the proposal. See 15 CFR §930.58;
(3) if a mitigation plan is required, an alternative
analysis, habitat characterization, and any required surveys for the
license or permit must be submitted; and
(4) the consistency certification must also provide: "The
proposed activity complies with enforceable policies of Texas' approved
coastal management program and will be conducted in a manner consistent
with such program." See 15 CFR §930.57(b).
(c) Request for Necessary Data and Information. If
an applicant fails to submit all necessary data and information required
by 15 CFR §930.58(a), the GLO shall notify the applicant and
the federal agency, within thirty (30) days of receipt of the incomplete
submission, that necessary data and information described in 15 CFR §930.58(a)
was not received and that the GLO's review period will commence on
the date of receipt of the missing necessary data and information,
subject to the requirement in paragraph (a) of 15 CFR §930.58
that the applicant has also submitted a consistency certification.
The GLO may waive the requirement that all necessary data and information
described in 15 CFR §930.58(a) be submitted before commencement
of the six (6) month consistency review period. In the event of such
a waiver, the requirements of §930.58(a) must be satisfied prior
to the end of the six (6) month consistency review period or the GLO
may object to the consistency certification for insufficient information.
The type of information that may be requested is identified in subsection
(b) of this section consistent with the information requirements specified
at 15 CFR §930.58(a).
(d) Review Period. To initiate the GLO's six (6) month
review period, the necessary data and information that is required
by 15 CFR §930.58 and subsection (b) of this section must be
provided to the GLO. The GLO cannot require issued state or local
permits as necessary data or information to initiate the review period.
If at the end of this review period, the applicant has failed to obtain
all required state and local permits this may result in a finding
by the GLO that it lacks the required information to complete the
consistency review and may object for lack of information.
(e) Mutual Stay Agreement. The GLO and the applicant
may enter into a mutual written agreement to stay the CZMA review
period to allow for resolution of the remaining issues as provided
for at 15 CFR §930.60(b).
(f) Permit Assistance. Upon request of the applicant,
the GLO will provide guidance and assistance to applicants in conformance
with 15 CFR §930.56.
(g) Consolidation of Federal License or Permit Activities.
The GLO encourages applicants to consolidate related federal license
or permit activities identified in §30.12 of this chapter (relating
to Federal Listed Activities Subject to CZMA Review) to assist the
GLO in minimizing duplication of effort and unnecessary delays by
reviewing all federal license or permit activities relating to a project
at the same time.
(h) Public Participation. The GLO shall provide for
public participation consistent with the provisions of 15 CFR §930.61.
The GLO may issue joint public notices with the federal permitting
or licensing agency. The GLO may also extend the public comment period
or schedule a public meeting on the consistency certification. Comments
received in response to the public notice will be considered.
(i) Demonstration of Consistency. For activities located
within the state's jurisdiction that require state or local permits
or authorization, the issued permit or authorization is considered
evidence that demonstrates consistency with the enforceable policies
that the permit or authorization covers. In cases where an applicant
relies on draft NEPA documents to satisfy some of the necessary data
and information requirements for federal consistency review under
subsection C, an applicant should demonstrate how draft NEPA or other
project documentation materials support a finding of consistency with
the CMP goals and enforceable policies in a written document.
(j) 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.
(k) Commissioner Review. Following referral of a federal
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 and 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;
(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.
(l) Presumption of Concurrence. If the GLO has not
issued a decision with respect to a proposed federal license and permit
activity within ninety (90) days from the date when the GLO receives
an administratively complete consistency certification, then the GLO
shall notify the applicant and the federal agency of the status of
the review and the basis for further review. If no action is taken
by the GLO or the commissioner within six (6) months from the date
the GLO received the complete consistency certification, then the
action is conclusively presumed to be consistent with the CMP.
(m) Commissioner Objection. Once a matter has been
elevated to the commissioner for a consistency review with the CMP
goals and enforceable policies, the commissioner may object to the
consistency certification as provided for in 15 CFR §930.63(h).
(n) Right of Appeal. If the commissioner finds that
the proposed federal license or permit activity is inconsistent with
the CMP enforceable policies and objects to the consistency certification,
GLO shall notify the applicant of its appeal rights to the U.S. Secretary
of Commerce, and the federal agency shall not authorize the federal
license or permit activity, except as provided in the appeals process
established in 15 CFR Part 930, subpart H.
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