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Notes

15 C.F.R. §§ 923.42–923.44

3 sections in range

§923.42. State establishment of criteria and standards for local implementation—Technique A.

15 C.F.R. § 923.42

(a)
The management program must provide for any one or a combination of general techniques specified in subsection 306(d)(11) of the Act for control of land uses and water uses within the coastal zone. The first such control technique, at subsection 306(d)(11)(A) of the Act, is state establishment of criteria and standards for local implementation, subject to administrative review and enforcement (control technique A).
(b)
There are 5 principal requirements that control technique A must embody in order to be approved:
(1)
The State must have developed and have in effect at the time of program approval enforceable policies that meet the requirements of § 923.3. These policies must serve as the standards and criteria for local program development or the State must have separate standards and criteria, related to these enforceable policies, that will guide local program development.
(2)
During the period while local programs are being developed, a State must have sufficient authority to assure that land and water use decisions subject to the management program will comply with the program's enforceable policies. The adequacy of these authorities will be judged on the same basis as specified for direct State controls or case-by-case reviews.
(3)
A State must be able to ensure that coastal programs will be developed pursuant to the State's standards and criteria, or failing this, that the management program can be implemented directly by the State. This requirement can be met if a State can exercise any one of the following techniques:
(i)
Direct State enforcement of its standards and criteria in which case a State would need to meet the requirements of this section which address the direct State control technique;
(ii)
Preparation of a local program by a State agency which the local government then would implement. To use this technique the State must have statutory authority to prepare and adopt a program for a local government, and a mechanism by which the State can cause the local government to enforce the State-created program. Where the mechanism to assure local enforcement will be judicial relief, the program must include the authority under which judicial relief can be sought;
(iii)
State preparation and enforcement of a program on behalf of a local government. Here the State must have the authority to:
(A)
Prepare and adopt a plan, regulations, and ordinances for the local government and
(B)
Enforce such plans, regulations and ordinances;
(iv)
State review of local government actions on a case-by-case basis or on appeal, and prevention of actions inconsistent with the standards and criteria. Under this technique, when a local government fails to adopt an approvable program, the State must have the ability to review activities in the coastal zone subject to the management program and the power to prohibit, modify or condition those activities based on the policies, standards and criteria of the management program; or
(v)
If a locality fails to adopt a management program, the State may utilize a procedure whereby the responsibility for preparing a program shifts to an intermediate level government, such as a county. If this intermediate level of government fails to produce a program, then the State must have the ability to take one of the actions described above. This alternative cannot be used where the intermediate level of government lacks the legal authority to adopt and implement regulations necessary to implement State policies, standards and criteria.
(4)
A State must have a procedure whereby it reviews and certifies the local program's compliance with State standards and criteria. This procedure must include provisions for:
(i)
Opportunity for the public and governmental entities (including Federal agencies) to participate in the development of local programs; and
(ii)
Opportunity for the public and governmental entities (including Federal agencies) to make their views known (through public hearings or other means) to the State agency prior to approval of local programs; and
(iii)
Review by the State of the adequacy of local programs consideration of facilities identified in a State's management program in which there is a national interest.
(5)
A State must be able to assure implementation and enforcement of a local program once approved. To accomplish this a State must:
(i)
Establish a monitoring system which defines what constitutes and detects patterns of non-compliance. In the case of uses of regional benefit and facilities in which there is a national interest, the monitoring system must be capable of detecting single instances of local actions affecting such uses or facilities in a manner contrary to the management program.
(ii)
Be capable of assuring compliance when a pattern of deviation is detected or when a facility involving identified national interests or a use of regional benefit is affected in a manner contrary to the program's policies. When State action is required because of failure by a local government to enforce its program, the State must be able to do one or a combination of the following:
(A)
Directly enforce the entire local program;
(B)
Directly enforce that portion of the local program that is being enforced improperly. State intervention would be necessary only in those local government activities that are violating the policies, standards or criteria.
(C)
Seek judicial relief against local government for failure to properly enforce;
(D)
Review local government actions on a case-by-case basis or on appeal and have the power to prevent those actions inconsistent with the policies and standards.
(E)
Provide a procedure whereby the responsibility for enforcing a program shifts to an intermediate level of government, assuming statutory authority exists to enable the immediate of government to assume this responsibility.
Notes, amendments, and revision history

Source

Source: 61 FR 33809, June 28, 1996, unless otherwise noted.

Authority

Authority: 16 U.S.C. 1451 et seq.; 31 U.S.C. 6506; 42 U.S.C. 3334; Sections 923.92 and 923.94 are also issued under E.O. 12372, July 14, 1982, 3 CFR 1982 Comp. p. 197, as amended by E.O. 12416, April 8, 1983, 3 CFR 1983 Comp. p. 186.

Source

Source: 44 FR 18595, Mar. 28, 1979, unless otherwise noted.

§923.43. Direct State land and water use planning and regulation—Technique B.

15 C.F.R. § 923.43

(a)
The management program must provide for any one or a combination of general techniques specified in subsection 306(d)(11) of the Act for control of land and water uses within the coastal zone. The second such control technique, at subsection 306(d)(11)(B) of the Act, is direct state land and water use planning and regulation (control technique B).
(b)
To have control technique B approved, the State must have the requisite direct authority to plan and regulate land and water uses subject to the management program. This authority can take the form of:
(1)
Comprehensive legislation— A single piece of comprehensive legislation specific to coastal management and the requirements of this Act.
(2)
Networking— The utilization of authorities which are compatible with and applied on the basis of coastal management policies developed pursuant to § 923.3.
(c)
In order to apply the networking concept, the State must—
(1)
Demonstrate that, taken together, existing authorities can and will be used to implement the full range of policies and management techniques identified as necessary for coastal management purposes; and
(2)
Bind each party which exercises statutory authority that is part of the management program to conformance with relevant enforceable policies and management techniques. Parties may be bound to conformance through an executive order, administrative directive or a memorandum of understanding provided that:
(i)
The management program authorities provide grounds for taking action to ensure compliance of networked agencies with the program. It will be sufficient if any of the following can act to ensure compliance: The State agency designated pursuant to subsection 306(d)(6) of the Act, the State's Attorney General, another State agency, a local government, or a citizen.
(ii)
The executive order, administrative directive or memorandum of understanding establishes conformance requirements of other State agency activities or authorities to management program policies. A gubernatorial executive order will be acceptable if networked State agency heads are directly responsible to the Governor.
(3)
Where networked State agencies can enforce the management program policies at the time of section 306 approval without first having to revise their operating rules and regulations, then any proposed revisions to such rules and regulations which would enhance or facilitate implementation need not be accomplished prior to program approval. Where State agencies cannot enforce coastal policies without first revising their rules and regulations, then these revisions must be made prior to approval of the State's program by the Assistant Administrator.
Notes, amendments, and revision history

Source

Source: 61 FR 33809, June 28, 1996, unless otherwise noted.

Authority

Authority: 16 U.S.C. 1451 et seq.; 31 U.S.C. 6506; 42 U.S.C. 3334; Sections 923.92 and 923.94 are also issued under E.O. 12372, July 14, 1982, 3 CFR 1982 Comp. p. 197, as amended by E.O. 12416, April 8, 1983, 3 CFR 1983 Comp. p. 186.

Source

Source: 44 FR 18595, Mar. 28, 1979, unless otherwise noted.

§923.44. State review on a case-by-case basis of actions affecting land and water uses subject to the management program—Technique C.

15 C.F.R. § 923.44

(a)
The management program must provide for any one or a combination of general techniques specified in subsection 306(d)(11) of the Act for control of land and water uses within the coastal zone. The third such control technique, at subsection 306(d)(11)(C) of the Act, is state administrative review for consistency with the management program of all development plans, projects, or land and water use regulations, including exceptions and variances thereto, proposed by any state or local authority or private developer, with power to approve or disapprove after public notice and an opportunity for hearings (control technique C).
(b)
Under case-by-case review, States have the power to review individual development plans, projects or land and water use regulations (including variances and exceptions thereto) proposed by any State or local authority or private developer which have been identified in the management program as being subject to review for consistency with the management program. This control technique requires the greatest degree of policy specificity because compliance with the program will not require any prior actions on the part of anyone affected by the program. Specificity also is needed to avoid challenges that decisions (made pursuant to the management program) are unfounded, arbitrary or capricious.
(c)
To have control technique C approved, a State must—
(1)
Identify the plans, projects or regulations subject to review, based on their significance in terms of impacts on coastal resources, potential for incompatibility with the State's coastal management program, and having greater than local significance;
(2)
Identify the State agency that will conduct this review;
(3)
Include the criteria by which identified plans, projects and regulations will be approved or disapproved;
(4)
Have the power to approve or disapprove identified plans, projects or regulations that are inconsistent with the management program, or the power to seek court review thereof; and
(5)
Provide public notice of reviews and the opportunity for public hearing prior to rendering a decision on each case-by-case review.
Notes, amendments, and revision history

Source

Source: 61 FR 33809, June 28, 1996, unless otherwise noted.

Authority

Authority: 16 U.S.C. 1451 et seq.; 31 U.S.C. 6506; 42 U.S.C. 3334; Sections 923.92 and 923.94 are also issued under E.O. 12372, July 14, 1982, 3 CFR 1982 Comp. p. 197, as amended by E.O. 12416, April 8, 1983, 3 CFR 1983 Comp. p. 186.

Source

Source: 44 FR 18595, Mar. 28, 1979, unless otherwise noted.