SECTION 30.30. Consistency Certifications for Federal License or Permit Activities

(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.

Source Note: The provisions of this §30.30 adopted to be effective July 10, 2023, 48 TexReg 3677