SECTION 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 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.

Source Note: The provisions of this §30.20 adopted to be effective July 10, 2023, 48 TexReg 3677