§ 49:214.32 — Intergovernmental coordination and consistency

Louisiana § 49:214.32

• Jurisdiction: Louisiana
• Title 49: State Administration

Text

A. Deep water port commissions and deep water port, harbor, and terminal districts, as defined in Article 6, Sections 43 and 44 of the Louisiana Constitution of 1974, shall not be required to obtain coastal use permits. Provided, however, that their activities shall be consistent to the maximum extent practicable with the state program and affected approved local programs.
B. The governor, through the secretary, shall ensure that any activity within or outside the coastal zone that affects any land or water use or natural resources of the coastal zone which is undertaken, conducted, or supported by any governmental body is consistent with the state program and any affected approved local program having geographical jurisdiction over the action to the maximum extent practicable and, with respect to federal agencies, to the fullest extent allowed under federal law, particularly 16 U.S.C. 1456 and 15 C.F.R. 930.1-930.154 and amendments thereto. The governor, through the secretary, shall also ensure that such governmental body has considered the sustainability of any activity in the coastal zone and has accounted for potential impacts from hurricanes and other natural disasters.
C.(1) Consistency determinations shall be made by the secretary except that consistency determinations for uses carried out under the secretary's authority shall be made by the governor.
(2) The following schedule of fees shall be charged for the processing and evaluation of consistency determinations required by R.S. 49:214.32 to the person conducting an activity subject to consistency review. A nonrefundable processing fee of three hundred dollars shall accompany each application or request for consistency determination submitted to the Coastal Management Division.
(3) The schedule of fees shall become effective October 1, 1992.
(4) If the appropriate application fees are not included along with the application or request for consistency determination, the application or request shall be considered incomplete, and returned to the applicant.
(5) The following activities are exempted from consistency fees:
(a) The processing and evaluation of any consistency determinations relative to all matters concerning the Oil Spill Prevention and Response Act (R.S. 30:2451 et seq.) and any amendments thereto.
(b) The processing and evaluation of consistency determinations for activities performed by the Louisiana Department of Wildlife and Fisheries on wildlife management areas and refuges maintained or managed by the Department of Wildlife and Fisheries.
(c) The processing and evaluation of consistency determinations for activities performed by the Louisiana Department of Recreation and Tourism on state parks and cultural sites maintained and/or managed by the Louisiana Department of Recreation and Tourism.
(d) The processing and evaluation of consistency determinations for any portions of federally permitted activities which are also subject to the state coastal use permitting requirement.
(e) The processing and evaluation of consistency determinations for federal loans and grants.
(f) The processing and evaluation of consistency determinations for activities performed by the U.S. Fish and Wildlife Service on refuges maintained and/or managed by the U.S. Fish and Wildlife Service.
(g) The processing and evaluation of consistency determinations for activities performed by the U.S. Park Service in national parks.
(h) The processing and evaluation of consistency determinations for maintenance of existing Outer Continental Shelf mineral facilities, pipelines, and other structures.
(i) The processing and evaluation of consistency determinations for relocation and removal of existing Outer Continental Shelf mineral facilities, pipelines, and other structures when such relocation or removal is required by federal or state statute or regulation.
(6) The monies generated from the collection of consistency determination fees shall be allocated and expended to employ sufficient personnel to process and evaluate consistency determinations in an expeditious manner.
(7) Decisions on consistency determinations shall be made within three months of receipt of the consistency determination by the Coastal Management Division, except as provided by federal regulations at 15 CFR 930.79 and 15 CFR 930.63.
(8) All other procedural and substantive requirements for consistency determinations are to be carried out in accordance with federal law, particularly 16 U.S.C. 1456 and 15 C.F.R. Sections 930.1-930.154, and amendments thereto.
D. Governmental bodies shall fully coordinate their activities affecting the coastal zone with the state program and affected approved local programs. When the secretary finds that governmental actions not subject to the coastal use permitting program may significantly affect land and water resources within the coastal zone, he shall notify the secretary of the Department of Wildlife and Fisheries or his designee and the concerned governmental body carrying out the action. Any governmental body so notified shall coordinate fully with the secretaries or their designees, acting jointly, at the earliest possible stage of the proposed action. The secretaries or their designees, shall make comments to such other agencies in order to assure that such actions are consistent with the state program and affected local programs. These comments shall, to the maximum extent practicable, be incorporated into the action commented upon.
E. Provided that neither the state nor any local government having an approved local program shall be liable for any damages resulting from activities occurring in connection with the granting of any coastal use permit pursuant to this Section; and provided further that any person undertaking any use within the coastal zone in accordance with the terms and conditions of a coastal use permit issued pursuant to this Section shall be considered in full compliance with the purposes and provisions of this Subpart.
F.(1) In order for the state to fulfill its obligation under the public policy provisions of this Subpart, the secretary shall insure that whenever a proposed use or activity requires the dredging or disposal of five hundred thousand cubic yards or more of any waterbottom or wetland within the coastal zone, the dredged material shall be used for the beneficial purposes of wetland protection, creation, enhancement, or combinations thereof, in accordance with a long term management strategies plan for each existing or proposed channel as developed by the secretary and adopted pursuant to the provisions of the Louisiana Administrative Procedure Act.
(2) When a proposed use or activity involves dredging to construct or maintain a channel or canal greater than one mile in length in the coastal zone and where the secretary determines that failure to maintain and stabilize the banks of such channel or canal will result in direct or indirect loss of wetlands or adverse impacts to wetlands or waterbottoms, the secretary shall require that such banks be maintained and stabilized using dredged materials or structural stabilization measures, or both. In areas where the secretary determines that dredged material placement alone is insufficient to maintain and stabilize the banks along all or part of the canal or channel, the use of structural stabilization measures, including, but not limited to rock breakwaters, shall also be required. Any dredged material disposal and channel bank stabilization shall be in accordance with a long term management strategies plan for each proposed or existing channel as developed by the secretary and adopted pursuant to the provisions of the Louisiana Administrative Procedure Act.
(3) In developing a long term management strategies plan for each existing or proposed channel as provided in Paragraphs F(1) and (2), the secretary shall consult with and address the concerns of the following:
(a) The local sponsor of the existing or proposed channel.
(b) The governing authority for the parish in the coastal zone through which the channel is to be constructed or maintained.
(c) Representatives of the affected or potentially affected port or waterway facility operators.
(d) Representatives of the affected or potentially affected waterway user groups.
(e) Appropriate state and federal agencies.
(4) The plan shall address beneficial use of dredged material disposal for the purposes of wetland protection, creation, enhancement, combinations thereof, and channel bank stabilization, where deemed appropriate by the secretary from a long-range perspective and shall incorporate structural, management, institutional, and economic components for a particular existing or proposed navigation channel. The plan shall include but not be limited to the following:
(a) A list of projects, programs, or structural channel bank stabilization measures required for the conservation, restoration, or creation of wetlands lost, adversely affected, or with the potential to be lost as a result of existing or proposed navigation channels and the action required of each state or federal agency, port authority, user group, or other responsible party to implement said project, program, or channel bank stabilization measure.
(b) A schedule, estimated cost, and source or sources of funding for the implementation of each project, program, or channel bank stabilization measure included in the plan for a particular existing or proposed navigation channel.
(c) Scientific data and other reasons, including but not limited to economic, social, geographic, and biological considerations and parameters as to why each project, program, or structural measure was selected for inclusion. Specifically this will include an explanation as to how each project, program, or channel bank stabilization measure advances the plan's objectives with respect to beneficial use of dredged material disposal for the purposes of wetland protection, creation, enhancement, a combination thereof, and channel bank stabilization, where deemed appropriate by the secretary.
(d) Provisions which address emergency situations, including but not limited to instances of force majeure, acts of God, acts of war, and other problems or situations not anticipated in the plan.
(5) Any plan approved by the secretary and adopted in accordance with the Louisiana Administrative Procedure Act shall be consistent with the provisions of R.S. 49:214.27 and 214.32, and the rules, regulations, and guidelines adopted thereunder. Any project, program, or structural channel bank stabilization measures included in an approved and promulgated plan for a particular existing or proposed navigation channel shall be deemed to be consistent with the Louisiana Coastal Resources Program, provided, however, actual construction and implementation is done in accordance with the plan, design memorandum, local cooperation agreement, and local cooperation agreement for a particular existing or proposed navigation channel. Consistency determinations for projects, programs or channel bank stabilization measures implemented or constructed on a channel or canal, or any segment thereof, which has not been made part of any plan approved and adopted pursuant to the provisions herein shall be made on a case-by-case basis in accordance with R.S. 49:214.27 and 214.32 and the rules, regulations and guidelines adopted thereunder. The provisions herein shall be made on a case-by-case basis in accordance with R.S. 49:214.27 and the rules, regulations, and guidelines adopted thereunder.
(6)(a) Any long term management strategies plan shall have, as a matter of law a term of not more than ten years. At the end of the term, the secretary may, in accordance with applicable statutory law, rules, and regulations:
(i) Extend or reissue a plan for another term of up to ten years.
(ii) Require a modification to incorporate terms and conditions deemed necessary for the wetland protection, conservation, restoration, enhancement, creation, any combination thereof, and channel bank stabilization, or to reflect regulatory changes which have been specified by rule or regulation.
(b) The secretary may not revoke the consistency determination for any provision of a plan approved and adopted pursuant to the provisions herein unless notice is given to the sponsor assuring agency not less than one calendar year prior to the revocation. Upon such notice, the secretary shall consult with and respond in writing to the concerns of the local sponsor of the existing or proposed channel, the governing authority for the parish in the coastal zone through which the channel is constructed or maintained, representatives of the affected or potentially affected port or waterway facility operators, representatives of the affected waterway user groups, and appropriate state and federal agencies.
(c) At the end of the term of any plan, the provisions of this Subsection shall apply to any request for an extension or renewal. No plan shall be terminated pursuant to this Section if the secretary has taken no action to extend, modify, or revoke the grant of authority. The grant of authority shall remain until such action is taken.
(7) Until a long term management strategies plan is adopted for a particular proposed or existing channel, the secretary shall continue to act in accordance with the provisions of R.S. 49:214.27 and 214.32 and the rules, regulations, and guidelines adopted thereunder in determining whether channel construction, maintenance, and associated dredged material disposal is consistent with Louisiana's Coastal Management Program.
(8)(a) The secretary may grant variances for consistency determinations for any project, program, or structural channel bank stabilization measure for which no funds are available to construct or implement same from the funding sources identified in a plan approved and adopted in accordance with this Section. Such variances may be granted upon presentation of reasonable evidence that compliance with the provisions of a plan will result in significant economic losses to any lawful business, occupation, or activity without sufficient corresponding benefit or advantage to the people of the state.
(b) In determining under what conditions and to what extent a variance from a plan approved and adopted pursuant to the provisions of the Section is granted, the secretary shall give due consideration to progress which the person, entity, sponsor, assuring agency, or state or federal agency requesting the variance shall have made in complying with and implementing a plan, the efforts made by the person, entity, sponsor, assuring agency, or state or federal agency requesting the variance to acquire adequate funding from the funding sources identified in a particular plan, and the degree and nature of the adverse ecological impacts caused by the failure to implement the project, program, or structural channel bank stabilization measure for which the variance is requested.
(c) The secretary may grant such variance which shall be conditioned to require the inclusion of the particular project, program, or channel bank stabilization measure, for which the variance is granted in the subsequent dredging cycle for that particular channel, and upon the requirement to provide a level of compensatory mitigation in accordance with the provisions of R.S. 49:214.41 for the ecological impacts resulting from the failure to implement the project, program, or structural channel bank stabilization measure for which the variance is granted. Any variance granted pursuant to the provisions of this Section shall be granted for a period of time not to exceed two years, as shall be specified by the secretary. Any variance which may be granted shall be under the condition that the sponsor or assuring agency shall make such periodic reports to the secretary as to the progress made toward acquiring adequate funding. Upon failure of the secretary to take action within sixty days after receipt of a request for a variance, or upon failure of the secretary to enter a final order or determination within sixty days after final argument in any hearing under this Subpart, then for all purposes the person, entity, sponsor, assuring agency, or state or federal agency affected shall be entitled to treat such failure to act as a grant of the variance or of a finding favorable to the party requesting the variance.

Legislative History

Acts 1978, No. 361, §1, eff. Jan. 1, 1979. Acts 1983, No. 705, §4, eff. Sept. 1, 1983; Acts 1991, No. 637, §1; Acts 1992, No. 1075, §1; Acts 2006, No. 548, §1, eff. June 22, 2006.