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Title 15-Commerce and Foreign Trade CHAPTER IX-NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

PART 920-COASTAL ZONE MANAGEMENT PROGRAM DEVELOPMENT GRANTS

The National Oceanic and Atmospheric Administration (NOAA) on June 13. 1973, proposed guidelines (originally published as 15 CFR Part 960), pursuant to section 305 of the Coastal Zone Management Act of 1972 (Pub. L. No. 92-583, 86 Stat. 1280), hereinafter referred to as the "Act," for the purpose of defining the procedures by which States can qualify to receive development grants under section 305 of the Act and policies for development of their management program.

Written comments were to be submitted to the Office of Coastal Environment, National Oceanic and Atmospheric Administration before August 13, 1973, and consideration has been given these comments.

The Act recognizes that the coastal zone is rich in a variety of natural, commercial, recreational, industrial, and esthetic resources of immediate and potential value to the present and future well-being of the Nation. Present State and institutional arrangements for planning and regulating land and water uses in the coastal zone are often inadequate to deal with the competing demands and the urgent need to protect natural systems in the ecologically fragile area. Section 305 of the Act authorizes annual grants to any coastal State for the purpose of assisting the State in the development of a management program for the land and water resources of its coastal zone (development grant). Once a coastal State has developed a management program it is submitted to the Secretary of Commerce for approval and, if approved, the State is then eligible, under section 306, to receive annual grants for administering its management program (administrative grants).

The guidelines contained in this part are for grants under section 305 to develop a management program that will meet the requirements of section 306. Section 305 provides guidance as to what must be included in a management program while section 306 sets forth requirements that must be met before the Secretary can approve a State's management program for administrative grants. Participating States, therefore, must insure that the management program they develop under section 305 will meet the requirements of section 306. These guidelines incorporate some of the requirements of section 306. Guidelines for section 306 are being developed and will be published when available.

In general terms, section 305 requires a management program to include (1) the boundaries of the State's coastal zone; (2) a process pursuant to which permissible land and water uses which have a direct and significant impact on coastal waters are defined; (3) criteria for and designation of geographic areas

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in the coastal zone of particular concern to the State; (4) identification or establishment of the means by which the State, together with other levels of government, shall exert control over the land and water uses in its coastal zone; (5) designation of priority uses within specific geographic areas throughout the coastal zone; and (6) description of the organizational structure and intergovernmental arrangements sufficient to develop and maintain an effective and coordinated management process.

The National Oceanic and Atmospheric Administration is publishing herewith the final regulations describing procedures for applications to receive development grants under section 305 of the Act. The final regulations and criteria published herewith were revised from the proposed guidelines based on the comments received. A total of sixtythree (63) States, agencies, organizations and individuals submitted responses to the proposed section 305 Guidelines published in the FEDERAL REGISTER on June 13, 1973. Of those responses received, twelve (12) were wholly favorable as to the nature and content of the Guidelines as they appear in the FEDERAL REGISTER on June 13, 1973. Forty-one (41) commentators submitted suggestions concerning the proposed section 305 Guidelines.

The following analysis summarizes key comments received on various sections of the interim regulations and presents a rationale for the changes made:

1. Several commentators asserted that there was a need for further elaboration on the definitions contained under § 920.2. No changes were made in response to these comments since the present definitions allow the States to adjust their programs as local conditions require.

2. Sixteen comments were received on the necessity of submitting an Environmental Impact Statement as required by § 920.10 (c). The National Environmental Policy Act, 42 U.S.C. 4332, and implementing regulations, 38 FR 20562, August 1, 1973, require an Environmental Impact Statement be prepared and circulated on:

(i) The environmental impact of the proposed action,

(ii) Any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) Alternatives to the proposed action,

(iv) The relationship between local, short-term uses of man's environment and the maintenance of enhancement of long-term productivity, and

(v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

(42 U.S.C. 4332 [C])

It is anticipated that such Environmental Impact Statements will be prepared by the Secretary, primarily on the basis of an environmental impact assessment and other relevant data, prepared and submitted by the individual States.

3. Several suggestions were made that the seven representative factors listed under § 920.13 be expanded to include renewable resource lands. The commentators expressed concern that this important area in the coastal ecosystem was not specifically identified. As a result of the concern expressed by the commentators, renewable resource lands are included in the list of representative factors which will assist in the designation of certain areas as being areas of particular

concern.

4. The requirement that a "more comprehensive management program design" be submitted within 120 days after approval of the grant application has been amended under § 920.45 (d). The final guidelines require that the management program design be submitted at the same time as the application for the initial grant. The reason for the above change is that the 120-day delay is not necessary and would serve as a potential source of confusion to the applicants.

5. Several comments received pertaining to 920.14 recommended that NOAA emphasize the point that institutional questions should be raised early in the overall process. Commentators expressed concern that weiting until all the "technical work" is completed and the "plan" developed to consider the institutional vehicles for implementation would be a mistake that could forseeably delay the implementation of the plan. As a result of the comments received, language has been inserted to encourage the States to determine at an early stage whether or not legislation is needed.

6. There appeared to be general misunderstanding of the Public Hearing requirements cited under § 920.31. In order to clarify this section it has been rewritten. The present section emphasizes that "the key to compliance with the provisions of the Act is the assurance that the public has had an adequate opportunity to participate in the development of the plan."

7. Several comments received indicated a lack of understanding by several commentators as to the exact meaning of "segmentation" under § 920.44. To eliminate any misinterpretation, the term "geographic" has been inserted before the terms "segment and segmentation" as they appear in §920.44.

8. One commentator expressed concern over § 920.45 (f) which required that where "a State chooses to reject (completed and approved regional and local) plans, it should be prepared to justify its actions as part of the management program." The above language has been amended to require a State "to advise the local government wherein" "its plan is deficient," rather than to "justify" its actions. The commentator argued that it would be inappropriate to establish a burden of proof for the States when it disagrees with actions of a regional or local body created by the State.

9. Several suggestions were made that the 15-day limit under § 920.47 be expanded. On the basis of the comments submitted, the time limit was expanded

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ward from the shoreline presents a very important conceptual and operational issue for State study, analysis, and decision. The following factors should be considered:

(a) In order to develop an orderly and effective management program, States ny wish initially to delineate a planning area which generally is larger than, and encompa s the area ultimately identified as the coastal zone. Such a two-step procedure would enable a State to undertake planning studies and policy development for a relatively broad region aimed at a later final determination of the smaller coastal zone where specific land and water use controls, regulations, and active management activities will be applied. Demographic, economic, developmental, and biophysical factors and their analysis, which will largely determine State management activities in coastal waters and the landward and seaward areas and uses affecting them, are likely to be based upon data, programs, and institutional boundaries (such as counties or areawide agencies) that encompass geographic areas larger than the coastal zone designation. Specific coastal zone programming and regulation must take into account current developmental, political, and administrative realities, as well as biophysical processes, that may be external to the restricted zone eventually selected for direct management control.

(b) The coastal zone for management purposes extends inland only "to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters." However, the States are encouraged to take early and continuing account of existing Federal and State land/water use and resource planning programs. In addition, States may wish to anticipate a national land-use policy, including its application in their State, unless the State coastal zone management program applies to the entire State. States may also wish to anticipate the desired coordination between the coastal zone and proposed land use or broad resource management programs. Examples of some related statewide policies and programs which will affect and should be considered in making determinations under the Act include: Energy policy, siting of power plants and other major water-dependent facilities, surface and subsurface mineral extraction controls, overall land and water conservation policies, and many others.

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the views of Federal agencies principally affected by the management program. States having excluded Federal lands in coastal zone must indicate the manner in which they will coordinate with Federal officials administering such lands in the development of their management program.

§ 920.12 Permissible land and water uses which have a direct and significant impact on coastal waters. Section 305(b) (2) of the Act requires that the management program include "a definition of what shall constitute permissible land and water uses within

the coastal zone which have a direct and significant impact on coastal water." In determining permissible uses. States should give consideration to "requirements for industry, commerce, residential development, recreation, extraction of mineral resources and fossil fuels, transportation and navigation, waste disposal, and harvesting of fish, shellfish, and other living marine resources. As stated in the declaration of congressional policy, these uses are to be managed "giving full consideration to ecological, cultural, historic, and esthetic values as well as to needs for economic development." Developing indices for determining environmental and economic impact-beneficial, benign, tolerable, adverse-is the first essential analytical and policy step needed to give substance and clarity to those uses which are "permissible." Some of the factors involved in this determination include location, magnitude, the nature of impact upon existing natural or man-made environments, economic, commercial, and other "triggering" impacts, and land and water uses of regional benefit. In responding to this requirement, therefore, the following general types of study and evaluation should be undertaken utilizing existing data and available analysis where possible:

(a) Determining criteria and measures to assess the impact of existing. projected, or proposed uses or classes of uses on the identified coastal environments;

(b) Categorizing the nature, location, scope, and conflicts of current and anticipated coastal land and water use or classes of uses;

(c) A continuing compilation, verification, and assessment of the general characteristics, values, and interrelationships within coastal land and water environments.

In establishing permissible uses, States must also be cognizant of the requirement in section 306(c) (8) of the Act that the management program must provide "for adequate consideration of the national interest involved in the sit

of

"an inventory and designation of areas of particular concern." The inventory and analysis of the States' total costal zone in § 920.12 should provide the basic data analysis, and criteria necessary to identify specific geographic areas particular concern. It should be noted that geographic areas of particular concern are likely to encompass not only the more-often cited areas of significant natural value or importance, but also: (a) Transitional or intensely developed areas where reclamation, restoration. public access and other actions are especially needed; and (b) those areas especially suited for intensive use or development. In addition, immediacy of need should be a major consideration in determining particular concern. While the States will vary in their perceptions of what areas are of particular concern, criteria derived from assessing the following representative factors will assist in these designations:

(1) Areas of unique. scarce, fragile, or vulnerable natural habitat, physical feature. historical significance, cultural value, and scenic importance;

(2) Areas of high natural productivity or essential habitat for living resources. including fish, wildlife, and the various trophic levels in the food web critical to their well-being:

(3) Areas of substantial recreational value and/or opportunity;

(4) Areas where developments and facilities are dependent upon the utilization of, or access to, coastal waters;

(5) Areas of unique geologic or topographic significance to industrial or commercial development;

(6) Areas of urban concentration where shoreline utilization and water uses are highly competitive;

(7) Areas of significant hazard if developed, due to storms, slides, floods, erosion, settlement, etc.; and

(8) Areas needed to protect, maintain or replenish coastal lands or resources, such areas including coastal flood plains, aquifer recharge areas, sand dunes, coral and other reefs, beaches, offshore sand deposits, and mangrove stands.

This inventory and designation of geographic areas of particular concern will be of assistance in meeting the requirement in section 306 (c) (9) of the Act which requires that the management program "make provision for procedures whereby specific areas may be designated for the purpose of preserving or restoring them for their conservation, recreational, ecological, or esthetic values."

§ 920.14 Means of exerting State control over land and water uses.

Furthermore, before the Secretary can approve a management program, he is required under section 307(b) to consider

ing of facilities necessary to meet requirements which are other than local

in nature." The State must have adequate processes for providing such adequate consideration.

concern.

Section 305(b) (3) of the Act requires that the management program include

Section 305(b) (4) of the Act requires that the management program include "an identification of the means by which the State proposes to exert control over land and water uses referred to in (§ 920.12) including a listing of relevant constitutional provisions, legislative enactments, regulations, and judicial decisions." A fundamental purpose of this

by which decisions affecting the coastal zone are made to incorporate a statewide view. Congress in section 306 (e) provided