BILL SHEFFIELD
GOVERNOR 

 STATE OF ALASKA
OFFICE OF THE GOVERNOR
JUNEAU

December 20, 1983

ADMINISTRATIVE ORDER NO. 78

Procedures for the Alaska Coastal Management Program
Project Consistency Reviews

A. ORGANIZATION, PURPOSE AND IMPLEMENTATION OF THE ORDER

1. This Administrative Order is organized in seven parts:
                                                                                           Page #
     A. Organization, Purpose and               1
        Implementation of the order.
     B. Definitions.                            3
     C. Types of Consistency Reviews.           6
     D. Agency Responsibility for
        Consistency Reviews.                    8
     E. Procedures for Consistency Reviews.    10
     F. Procedures for Granting Extensions.    24
     G. Public Hearing Procedures
        and Timeframes.                        27

2. This Administrative Order (AO) sets out the specific steps of the interagency permit review process established by the Memorandum of Understanding (MOU) agreed to by the State resource agencies, the Departments of Natural Resources (DNR), Environmental Conservation (DEC), Fish and Game (DFG), and the Office of Management and Budget (OMB) on September 6, 1983. These procedures are designed to expedite the State review and decisions about resource-related land and water uses and activities in coastal areas, and to provide for determinations of consistency with the Alaska Coastal Management Program (ACMP) for all projects which are located within or may affect the coastal zone of Alaska as required by AS 44.19.145(a)(11), the Alaska Coastal Management Act (AS 46.40), and the Federal Coastal Zone Management Act of 1972, Pub. L. No. 92-583, 86 Stat. 1280 (1972), as amended, 16 USC §1451 et. seq. This order supercedes Sections 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, of Administrative Order 54, dated April 23, 1979. Administrative Order 54 remains in force except in so far as it is inconsistent with this order. Review of projects shall take place in an orderly and timely fashion according to the principles set out in this order. Typically, a routine project review shall be completed in either 30 or 50 days depending on the type of project being considered. Nothing in this Administrative Order shall be construed as conferring standing upon any party, public or private, to institute litigation against the State government or any agency thereof, nor to diminish or expand the existing statutory authorities of the State agencies or coastal resource districts.

3. This order will be effective on December 31, 1983. The resource agencies, with OMB/Division of Governmental Coordination (DGC), will identify a list of permits, or other approvals which are subject to consistency review and designate the appropriate review schedule for each by December 31, 1983. Agencies will review their existing regulations for conformance with this order and propose any necessary changes by March 1, 1984.

B. DEFINITIONS

1. "ACMP" means the Alaska Coastal Management Program, as approved by the Secretary of the United States Department of Commerce under authority of the Coastal Zone Management Act of 1972, § 305, 16 U.S.C. § 1454, and includes AS 46.40, 6 AAC 80, 6 AAC 85, and all coastal resource district approved plans;

2. "affected coastal resource district" means a coastal resource district as defined by AS 46.40.210(2) in which a project is proposed to be located, or which may experience a direct and significant impact from a proposed project;

3. "approved plan" means a coastal resource district plan that has been approved by the Alaska Coastal Policy Council and filed with the Lt. Governor's office;

4. "commenting agency" means an agency which comments or makes recommendations to the coordinating agency.

5. "consistency" means compliance with the standards of the ACMP, including the enforceable rules or policies of an approved coastal resource district plan;

6. "consistency determination" means a document issued by the coordinating agency containing a brief description of the project, the findings of the consistency review together with any stipulations, conditions or modifications to the project, if any, which must be attached to the applicable permits, and a brief justification for those necessary modifications, conditions, or stipulations.

7. "consistency review" means the evaluation of a project against the ACMP standards;

8. "coordinating agency" means the agency responsible for coordinating and facilitating the consistency review;

9. "DGC" means Division of Governmental Coordination within the Office of Management and Budget in the Office of the Governor;

10. "direct and significant impact" means an effect of a project which may contribute or lead to a change or alteration in the natural, social, cultural or economic characteristics of a coastal district;

11. "disposal of interest in state land" means the sale, lease or other disposition of state-owned or managed land or resources by the Department of Natural Resources;

12. "OMB" means the Office of Management and Budget in the Office of the Governor;

13. "permits" means any permit, lease, authorization, license or any other determination necessary for completion of a project or a discrete phase of a project;

14. "project" means any activity or use which will be located in or may affect the coastal zone of Alaska and

(A) which is subject to consistency review under sec. 307 of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. § 1456); or

(B) which requires the issuance of one or more state permits.

When a land or water activity is developed or authorized in discrete phases, and each phase requires agency decision(s) about permits, each phase shall be considered a "project.";

15. "resource agency" means the Alaska Department of Environmental Conservation, or the Alaska Department of Fish and Game, or the Alaska Department of Natural Resources.

C. TYPES OF CONSISTENCY REVIEWS

1. A project will be reviewed for consistency as follows:

a. Categorical Approval

A project requiring one or more state or federal permits, each of which has been categorically determined by OMB/DGC, to have no significant impact on the coastal zone, and which requires no additional state or Federal approvals, is deemed to have been conclusively approved by OMB/DGC as consistent with the ACMP. OMB/DGC will publish, and amend as necessary, a list of state and federal permits, which have been categorically approved. Before publishing or amending this list, OMB/DGC will distribute the proposed list or amendment for comment in the manner provided in this order for a project consistency review.

b. General Concurrence

Any project which requires one or more state or federal permits which are considered routine and which can be effectively managed by a standard set of operating conditions or requirements may be deemed to be consistent with the ACMP. Subsequent activities defined and conditioned by the general concurrence consistency determination are deemed to be consistent with the ACMP. OMB/DGC will publish, and amend as necessary, a list of state or federal permits, which have been designated for a general concurrence classification. Before publishing or amending this list, OMB/DGC will distribute the proposed list or amendment for comment in the manner provided in this order for a project consistency review.

c. Individual Project Reviews

Any project which requires one or more state or federal permits not within the two classifications described above, is subject to review as an individual project in the manner provided in this order.

2. Any resource agency or coastal district may request OMB to amend, by addition or deletion, the lists of permits for categorical or general concurrence determinations based on new information about the impacts of these activities, including the cumulative impacts.

D. AGENCY RESPONSIBILITY FOR CONSISTENCY REVIEWS

1. When permits from two or more state agencies or one or more federal permits are required for a project to proceed, OMB is the coordinating agency and will render a consistency determination, which is conclusive and binding for all the required project permits, according to the procedures outlined in this order.

2. when only one state and no federal agency permit is required for a project to proceed, that agency which is responsible for the permit is the coordinating agency and will conduct the consistency review for that project according to the procedures outlined within this order. The Office of Management and Budget will routinely review single agency consistency determinations to insure uniform interpretation of the coastal standards, to insure adequate public notice of project reviews and for consistency with the ACMP. Cf. Hammond v. North Slope Borough, 645 P.2d 750, 762 n.8 (Alaska 1982).

3. In single agency permit projects, OMB/DGC will participate in the same manner as other commenting agencies. If however, the single agency permit is a disposal of interest in State land, OMB will review the agency consistency determination and either concur with the determination, or require modifications to allow for concurrence.

4. The coordinating agency will give careful consideration to all comments, and will give due deference to the comments of resource agencies and affected coastal districts with approved plans. Due deference means deference to the opinion of a resource agency or an affected coastal district with an approved plan which is appropriate in the context of the commenter's expertise and area of responsibility, and all the evidence available to support any factual assertions. A coastal resource district with an approved plan is deemed to have expertise in the interpretation of its plan.

5. If stipulations or recommendations which have been requested by a resource agency or an affected district with an approved plan are excluded from the consistency determination, then the reasons for the exclusion must be recorded by the coordinating agency and provided to the agency or district on request.

E. PROCEDURES FOR CONSISTENCY REVIEWS

1. Preapplication Activities

a. ONE and resource agency representatives will be available in designated regional offices in Juneau, Anchorage, and Fairbanks for preapplication consultation with any applicant. A project questionnaire prepared by OMB/DGC in consultation with the resource agencies, will be used to determine the scope of the project and the relevant resource agency permits required for a project. Based on information provided in the project questionnaire and additional consultation with the applicant, designated personnel within each resource agency will inform the applicant of permits required by that agency, provide appropriate application forms, and discuss the general information requirements required for the review. Also, based on the responses to the project questionnaire, each agency will inform the applicant if permits from other state or federal resource agencies may be required, and will provide the applicant with the names and addresses of people who will be able to provide the more specific permit application information. The DEC Permit Information Centers, located at the DEC regional office locations in Juneau, Fairbanks, and Anchorage, will also be available to provide general information about permit requirements of other agencies.

b. Each agency responsible for issuing a permit will make the final determination on whether a permit is required for a specific project. If there is disagreement among agencies about the appropriate scope of the project to be reviewed, OMB will make the final decision.

c. Project questionnaires will not be required for placer mining activity covered by the Annual Placer Mining Application (Tri-Agency Placer Mining Application). These applications must be submitted to DNR, and DNR will distribute the Annual Placer Mining Application for the coordinating agency according to the procedures within this order.

2. Application for Project Review

a. A project consistency review begins with the acceptance of a packet including the completed application forms for the project, and the completed project questionnaire. The packet must be submitted to the State as follows:

i. Projects which require permits from two or more state agencies, or one or more federal permits, must be submitted to the OMB office within the region in which the project is to occur, except that projects affecting more than one region must be submitted to the OMB central office in Juneau.

ii. Project application packets which require the payment of fees or contain confidential information must be sent to the resource agency which requires either the fees or the confidential information. In this case, the agency will extract the fees or the confidential information and immediately forward the packet to the appropriate coordinating agency office.

iii. Projects which require only a single agency permit must be submitted to the agency responsible for issuing the permit.

b. Upon receipt, agency staff will review the packet to determine if application forms have been properly completed for agency permits which the project questionnaire indicates may be required.

c. If a single permit application is received, the agency can accept the application for processing only if the applicant's answers to the project questionnaire indicate that no other permits are necessary, or if the applicant furnishes evidence that the other agencies have been contacted and have determined that no additional permits are required.

d. For projects which require only one permit, the agency acceptance of a completed application packet for the project initiates the consistency review. For a project that require two or more state permits or a federal permit, OMB acceptance of a completed application packet initiates the consistency review except as provided for in section E 3(c) below.

3. Project Review Schedules

a. Projects will be reviewed and approved according to either a 30 or 50-day review schedule. The 50-day schedule will be used except when all necessary permits must be issued in 30 days. For a single agency consistency review coordinated by a resource agency, each agency, in conjunction with OMB, will determine by December 31, 1983, which schedule is most appropriate.

b. The time periods in this order apply to the review and decisions about project consistency and, to the degree possible under existing law, to the associated agency permits except as provided for in E 3(d) below. They are designed to insure timely public and agency participation within a sound and routine consistency review process. The number of days allotted for each step of the review as described below represents calendar days. Reviewers should move through the procedures quickly, insuring that all requirements are met and appropriate parties are involved in concert with public notice requirements. Note the application of procedures for granting extensions in Part F as well as the public hearings provisions in Part G.

c. OMB and DNR will jointly agree when the consistency review will commence when a project with multiple permits includes a DNR disposal of interest.

d. For department initiated projects (e.g., state oil and gas lease sale), the coordinating agency shall establish the schedule for the consistency review. The deadlines shall not be shorter than those included in this order.

e. If an emergency as described in AS 26.23 or AS 46.04.080 or other applicable law causes an applicant to need an expedited agency permit or consistency review, or if the head of the coordinating agency finds that an expedited review is necessary for the preservation of the public peace, health, safety, or general welfare, the head of the coordinating agency may modify the review process established in this administrative order as necessary to meet the emergency. Any modifications made according to this section shall be made in writing by the head of the coordinating agency based upon a clear and convincing need for such modification.

4. Regional Level Review and Decision

a. Review Start-up

               50-Day Schedule        30-Day Schedule
                     (Day 1-2)                           (Day 1-2)

The completed project application packet, excluding any confidential information and fees, will be distributed by the coordinating agency to the appropriate state agencies, any affected local coastal districts, and other interested parties. For 30-day permits distribution may be more limited. Thirty-day permits shall be distributed to affected coastal districts with approved plans on request. OMB will encourage the joint public notice of project reviews when two or more state or federal permits are required.

b. Staff Research and Comment

               50-Day Schedule        30-Day Schedule
                    (Day 3-34)                          (Day 3-17)

Each agency/affected coastal district shall conduct its internal review of the project. Agencies, coastal districts, and the applicant are encouraged to informally discuss the project and exchange additional information while pertinent comments are developed. Comments must be received by the coordinating agency on or before day 34 in a 50 day review or day 17 in a 30 day review. Each commentator shall send copies of the comments to the resource agencies and, if requested, to the applicant and affected coastal districts. Verbal comments are acceptable but must be followed up by written comments postmarked within five working days of the verbal comments. If stipulations are recommended, a brief written justification must be provided. Upon request, the coordinating agency will send copies of comments to the applicant and other interested parties.

c. Additional Information Requested

               50-Day Schedule        30-Day Schedule
                  (by Day 20)                        (by Day 10)

Based on the initial review, agencies or affected coastal districts with approved coastal plans may request from the applicant through the coordinating agency any additional information pertinent to their statutory authorities or primary area of expertise. The review deadline may be extended from the date of the request until adequate information is provided by the applicant according to the procedures for extending deadlines, Part F.

d. Consideration of Comments

               50-Day Schedule        30-Day Schedule
                (by Day 34-44)                  (by Day 18-24)

The coordinating agency is responsible for facilitating discussion, defining consistency issues, and seeking agreement on alternative measures which would allow the project to proceed in a manner consistent with the Alaska Coastal Management Program standards, including the enforceable rules of approved plans. The coordinating agency will identify unresolved project issues on the basis of project comments and dialogue among reviewers. Agencies will also use this forum for identification of project issues pertinent to their specific statutory authorities.

e. Consistency Agreement

               50-Day Schedule        30-Day Schedule
                   (by Day 44)                        (by Day 24)

When OMB is the coordinating agency, it will render a consistency determination when agreement is reached among the resource agencies, the applicant, affected coastal districts with approved plans, and OMB on the consistency of a project, or on the additional measures necessary for consistency. If OMB, the resource agencies, the applicant, and affected districts with approved plans are unable to reach agreement by the day indicated above, the coordinating agency will elevate the project to director-level review outlined at part E5 below.

f. Agency Permits Issued

50-Day Schedule (Day 50, or not more than five days after consistency determination received.)  30-Day Schedule (Day 30, or of more than five days after consistency determination received.)

Each resource agency responsible for issuing a project permit, will, in addition to meeting all its specific statutory and regulatory provisions, comply with the project consistency determination. This may require that stipulations related to an agency's respective area of expertise or statutory authority developed during the consistency review be made part of the appropriate agency permits.

5. Director-Level Review

Project review at the director-level will begin when issues cannot be resolved at the regional-level or when a public hearing is scheduled, or the review enters Day 44 or Day 24, as applicable. To the extent possible, the resource agencies, the applicant, affected coastal resource districts and other parties are encouraged to resolve their differences prior to director-level and subsequent reviews.

a. Issue Paper

               50-Day Schedule        30-Day Schedule
                   (by Day 45)                         (by Day 25)

The coordinating agency will develop a brief project issue paper which identifies the unresolved issues. This issue paper shall be distributed, at a minimum, to designated persons within the resource agencies, OMB/DGC, the applicant and any affected coastal resource district with an approved plan.

b. Position Papers

              50-Day Schedule        30-Day Schedule
                   (by Day 50)                    (Not applicable)

A commenting agency, applicant, and affected coastal resource district may develop and distribute a brief project position paper on the unresolved issues which should include proposed mitigation or alternative measures which could allow the project to proceed in a manner consistent with the ACMP standards, including the enforceable rules of affected coastal districts with approved plans if any exist.

c. Negotiation

              50-Day Schedule        30-Day Schedule
                (by Day 50-55)                  (by Day 25-29)

Representatives from coastal districts with approved plans and agency directors, in consultation with their commissioner's office and regional staff and the applicant may enter into a project negotiation process facilitated by the coordinating agency. Any agency, applicant or an affected district with an approved plan may request the coordinating agency hold meetings to resolve the issues.

d. Consistency Agreement

              50-Day Schedule        30-Day Schedule
                   (by Day 55)                         (by Day 29)

The coordinating agency will render a consistency determination when agreement is reached among the resource agencies, the applicant, affected coastal districts with approved plans, and OMB on the consistency of a project, or on the additional measures necessary for consistency.

If the agencies, the applicant or the affected districts with approved plans are unable to reach agreement during the project negotiation, they may request the project be elevated to cabinet level review outlined at part E 6 below.

e. Agency Permits Issued

50-Day Schedule (Day 60, or not more than five days after consistency determination received.)  30-Day Schedule (Day 30, or of more than five days after consistency determination received.)

Each resource agency responsible for issuing a project permit will, in addition to meeting all its specific statutory and regulatory provisions, comply with the consistency determination. This may require that stipulations related to an agency's respective area of expertise or statutory authority developed during the consistency review be made part of the appropriate agency approvals.

6. Cabinet Level Review

a. Issue Paper and Recommendations

              50-Day Schedule           30-Day Schedule
                   (by Day 57)                           (by Day 30, if
                                 extension granted.)

The coordinating agency in conjunction with the agencies will summarize and present issues which are not resolved and recommendations or options for their resolution, to the resource agency commissioners and director of OMB/DGG. Affected districts with approved plans and the applicant may also present their written recommendations for cabinet level consideration.

b. Policy Direction

              50-Day Schedule        30-Day Schedule
                   (by Day 63)                         (by Day 37)

The resource agency commissioners will review the issues and recommendations presented and give appropriate policy direction.

c. Consistency Determination Issued

              50-Day Schedule        30-Day Schedule
                   (by Day 65)                         (by Day 39)

The coordinating agency will issue the project consistency determination to the applicant and distribute copies to all affected coastal districts, resource agencies, and other interested parties unless the time period has been extended as provided in Part F of this order.

d. Agency Permits Issued

50-Day Schedule (Day 65, or not more than five days after consistency determination received.)  30-Day Schedule (Day 39, or ot more than five days after consistency determination received.)

Each resource agency responsible for issuing a project permit will, in addition to meeting all its specific statutory and regulatory provisions, comply with the project's consistency determination. This may require that stipulations related to an agency's respective area of expertise or statutory authority developed during the consistency review be made part of the appropriate agency permits.

F. PROCESS FOR GRANTING EXTENSIONS

1. An associate director within OMB or a division director within the coordinating agency may grant an extension of a consistency review for any reason stated below except that no extension may be granted which would cause the total review period to exceed a time limit imposed by federal law or regulation:

a. if a project is located in the unorganized borough the commenting and decision deadlines will without request be extended by 10 days;

b. if a resource agency requests time to schedule and perform a field review, comment and decision deadlines may be extended up to 10 days;

c. if consensus cannot be reached at the regional level of review by the resource agencies, OMB-DGC, the affected coastal districts with approved plans, and the applicant on the stipulations and measures necessary to ensure that a project is consistent with the AGMP and the project review is elevated to the director and/or commissioner levels, an extension for up to 15 days will be granted at each elevation;

d. if a disposal of interest in state land or resources is required for the project to proceed, the DNR may obtain on request an extension for the consistency review to insure that the OMB consistency review process is coordinated with the DNR disposal process in a logical and efficient manner. For a project which is subject to the Surface Mining Control and Reclamation Act of 1977 (SMCRA), Pub. L. No. 95-87, 91 Stat. 445 (1977), 30 U.S.C. § 1201 et. seq., the consistency review schedule will conform to the requirements of SMCRA and the Alaska Surface Mining Control and Reclamation Act, Alaska Stat. § 27.21.

e. if a public hearing is held, both the comment and decision deadlines timeframe may be extended as necessary according to the procedures described in part G of this order;

f. if it is found by day 15 of a 30-day review or by day 25 of a 50-day review, that additional information is necessary from the applicant for project review, the review will be suspended for the time period requested by the applicant or until requested information is provided;

g. if it is found that the issues involved in project review are unusually complex (e.g. a pipeline or hydroelectric project), the commenting and decision deadlines may be extended as necessary. In this event, by day 50 of an extended 30-day project review or by day 70 of an extended 50-day project review a written statement must be issued which describes the issues which require further review. This statement will be distributed to the applicant, all agencies which have commented, and any affected coastal resource district.

h. if the applicant requests an extension for any reason, the comment and decision deadlines will be extended for any period which is mutually agreeable.

2. Discretionary extensions (extensions other than F (1) (a) above) of the consistency review must be made in writing by the appropriate state official and shall be authorized only when there is a clear and convincing need for such extension.

G. PUBLIC HEARINGS PROCEDURES AND TIMEFRAMES

1. Request for Public Hearing

A request for a public hearing must be made by day 17 of a 30-day review or by day 34 of a 50-day review. The request must be made to the coordinating agency.

2. Decision to hold a Public Hearing

A decision to hold a public hearing must be made within five (5) days of the receipt of a request for a public hearing.

3. Notice of Hearings

A public notice of the hearing will be published as soon as possible following the decision to hold a public hearing in at least one newspaper which receives general distribution in the community affected by the project. The coordinating agency shall also provide written notice of the public hearing to appropriate state and local elected officials. A project located in the unorganized borough should receive an additional notice of public hearings by radio and/or television announcements when available and appropriate. A representative from the coordinating agency must attend the hearing. The notice of the public hearing shall be given not less than 15 days prior to the public hearing nor more than 30 days prior to the public hearing. If a decision is made to hold a public hearing, the hearing shall be held in the affected coastal resource district.

4. Review of Public Hearing

If new information or issues are presented at a public hearing that have not been considered or resolved by project reviewers, the coordinating agency will summarize those portions of the hearing testimony and distribute the summary to other project reviewers including the applicant within five days following the hearing.

5. Additional Project Review

The coordinating agency, commenting agencies, and districts with approved plans may recommend additional stipulations on the basis of the hearing summary. Such recommendations must be submitted in the form of a position paper presented within seven days of the receipt of the hearing summary.

ORDER:

I, Bill Sheffield, Governor of the State of Alaska, order all executive agencies to comply with this order. I further order that all agencies shall make the best use possible of all available telecommunications or electronic communication systems and any other means available to expedite the transmission of information and comments regarding project consistency determinations. In addition, I order the Office of Management and Budget, Division of Governmental Coordination to provide me on or before July 30, 1984, with a written report prepared in accordance with the procedures established in this order for project consistency reviews, on the implementation and success, as well as necessary modifications desirable to carry out the implementation of this order.
DATE: Dec 20, 1983

  S/S Bill Sheffield                          
Bill Sheffield                                  
Governor of the State of Alaska     



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