§ 49:214.5.2 — Functions and responsibilities; Coastal Protection and Restoration Authority

Louisiana § 49:214.5.2

• Jurisdiction: Louisiana
• Title 49: State Administration

Text

§214.5.2. Functions and responsibilities; Coastal Protection and Restoration Authority
Board
A. The board shall:
(1) Represent the state's position in policy relative to the protection, conservation,
enhancement, and restoration of the coastal area of the state through oversight of integrated
coastal protection projects and programs and by addressing activities which require a coastal
use permit which could significantly affect integrated coastal protection projects and
programs, all consistent with the legislative intent as expressed in R.S. 49:214.1.
(2) Develop, coordinate, make reports on, and provide oversight for a comprehensive
coastal protection master plan and annual plans, working in conjunction with state agencies,
political subdivisions, including flood protection authorities, levee districts, and federal
agencies. The master plan shall include a comprehensive strategy addressing the protection,
conservation, enhancement, and restoration of the coastal area through the construction and
management of integrated coastal protection projects and programs, all consistent with the
legislative intent as expressed in R.S. 49:214.1. The annual plan shall be developed as the
annual implementation of the comprehensive master plan and shall be submitted to the
legislature for approval as set forth in R.S. 49:214.5.3. The annual plan shall include a
description and status of all projects and programs pertaining to integrated coastal protection,
including privately funded wetland enhancement projects or plans, and addressing those
activities requiring a coastal use permit which significantly affect projects set forth in the
plan, all consistent with the legislative intent as expressed in R.S. 49:214.1.
(3) Submit to the House Committee on Natural Resources and Environment and the
Senate Committee on Natural Resources and the House Committee on Transportation,
Highways and Public Works and the Senate Committee on Transportation, Highways and
Public Works the integrated coastal protection plans developed pursuant to R.S. 49:214.5.3.
Upon approval of the plans by the legislative committees and prior to implementation of the
plans, in whole or in part, the plans shall be approved by the legislature as provided in R.S.
49:214.5.3(E).
(4) Have the discretion to approve all requests for integrated coastal protection
programs and projects in the coastal area, insofar as such requests are for funds to be
appropriated from the Coastal Protection and Restoration Trust Fund.
(5) Be authorized to delegate any of its powers, duties, and functions to the chairman
of the board, to the executive director of the Coastal Protection and Restoration Authority,
or to state agencies, political subdivisions, including flood protection authorities, or levee
districts.
(6) Develop procedures in accordance with the Administrative Procedure Act and
take actions against any entity, including political subdivisions, to enforce compliance with
the comprehensive master coastal protection plan. Such procedures and actions may include
but are not limited to determinations of noncompliance; appeal from such determinations;
the taking of administrative action, including the withholding of funds; and civil action,
including the seeking of injunctive relief, or any other remedy necessary to ensure
compliance with the plan.
(7) Have the power and authority to enter into any contract with the federal
government or any federal agency or any political subdivision of the state or private
individual for the study, planning, engineering, design, construction, operation, maintenance,
repair, rehabilitation, or replacement of any integrated coastal protection project and to this
end, may contract for the acceptance of any grant of money upon the terms and conditions,
including any requirement of matching the grants in whole or part, which may be necessary.
(8) Have the power and authority to maximize the use of non-federal funds and
in-kind donations to provide for the costs associated with non-federal cost-share
requirements associated with integrated coastal protection projects.
(9) Develop guidelines for cost-sharing agreements with public and private entities
participating in approved integrated coastal protection projects.
(10) Be the responsible party for the Westbank Hurricane Protection projects in
accordance with R.S. 38:100 et seq., and the Lower Atchafalaya River Interim Flood
Protection projects in accordance with R.S. 38:106 et seq.
(11) Have the power to enter into any agreement with a parish governing authority
located wholly or partially within the coastal area but which is not part of a levee district for
the construction, operation, maintenance, repair, rehabilitation, or replacement of any coastal
protection, conservation and restoration, hurricane protection, infrastructure, storm damage
reduction, integrated coastal protection, or flood control project. The board shall have the
power to provide in the agreement for the use and exercise by the parish governing authority
of any and all powers of levee districts or levee and drainage districts.
B. The board may:
(1) Accept and use, in accordance with law, gifts, grants, bequests, endowments, or
funds from any public or private source for purposes consistent with responsibilities and
functions of the board and take such actions as are necessary to comply with any conditions
required for such acceptance.
(2) Utilize the services of other executive departments of state government upon
mutually agreeable terms and conditions.
(3) Take such other actions not inconsistent with law as are necessary to perform
properly the functions of the board.
(4) Adopt rules and regulations in accordance with the Administrative Procedure Act
to implement the provisions of this Subpart.
(5) Delegate signing authority for contracts to the chairman of the board, the
executive director of the Coastal Protection and Restoration Authority, or an authorized
designee of either. Such designation by the chairman or the executive director shall be by
authentic act.
C. Approval by the board shall be required for any request by a state agency or
department for any funds to finance research, programs, mitigation, or projects involving
integrated coastal protection, including hurricane protection or the conservation and
restoration of coastal wetlands resources; however, this Subsection shall not affect
self-generated or dedicated funds.
D. No state agency or entity shall enter into a contract with the United States Army
Corps of Engineers which would require the state to assume liability for or provide the cost
of operations and maintenance for a hurricane protection project unless the contract provides
for independent third-party review and evaluation in accordance with the best available
science and technical capabilities to confirm the project's anticipated level of protection
against hurricane flooding prior to the state or political subdivision assuming liability and
operations and maintenance obligations. The independent third-party reviewer and evaluator
provided for in the contract shall be approved by both the United States Army Corps of
Engineers and the nonfederal sponsor. However, the provisions of this Subsection shall not
apply to contracts for routine maintenance or other minor construction or repairs, or in cases
where there is imminent threat to life or property, or when the chairman of the Coastal
Protection and Restoration Authority Board, with the approval of the board, determines that
an emergency exists whereby compliance with the provisions of this Subsection would create
an unreasonable hardship.
E. Notwithstanding any other provision of law to the contrary, the Department of
Wildlife and Fisheries may enter into a cooperative endeavor agreement with the authority,
board, or a levee district to allow the use of the department's personnel, equipment or lands
owned or leased by the state to satisfy wetland mitigation requirements imposed upon the
authority or levee district by federal, state, or local law.
F. Upon the approval by the board, and notwithstanding any law to the contrary, the
authority, the state, or any political subdivision thereof, may use its own resources for
satisfying any mitigation requirements resulting from or related to an integrated coastal
protection project.
G. Notwithstanding any law to the contrary, the Coastal Protection and Restoration
Authority, upon approval by the board, may enter into a contract for the study, investigation,
and cleanup of, or response to, hazardous substances directly with any person or entity who
has entered into a contract with the United States Army Corps of Engineers for an integrated
coastal protection program or project where the hazardous substance is located and if federal
law, rules, regulations, guidance, or the terms of a cooperative, partnership, or other
agreement for the program or project require the state of Louisiana to directly take action
with regard to the study, investigation, and cleanup of, or response to, the hazardous
substance. Nothing in this Section shall prevent the authority from contracting with any
person or entity in any other manner permitted by law. In approving the contract with the
United States Army Corps of Engineers contracting entity or person, the board shall do all
of the following:
(1) Make a determination that the United States Army Corps of Engineers entered
into the contract with its contractor through a public bid process.
(2) Obtain from contractors other than the one under contract with the United States
Army Corps of Engineers, at least two estimates for the needed work to be conducted under
the contract for study, investigation, and cleanup of, or response to, hazardous substances
from persons or entities qualified to conduct such work, as determined by the board.
(3) Obtain an estimate for the needed work from the United States Army Corps of
Engineers contractor.
(4) Make a determination that contracting directly with the United States Army
Corps of Engineers contractor is economical, feasible, and in the best interest of the health,
safety, and welfare of the citizens of the state of Louisiana.
H.(1) The board may establish a natural resource damages restoration banking
program as an alternative method to offset injuries to natural resources sustained as a result
of oil spills in coastal areas as defined in R.S. 49:214.2, consistent with the Oil Pollution Act
of 1990 and the Oil Spill Prevention and Response Act, R.S. 30:2451 et seq. A "restoration
bank" is a site where land or resources are restored, created, enhanced, or preserved for the
purpose of restoring natural resources injured by oil spills in Louisiana's coastal areas.
"Restoration" is an umbrella term whose meaning encompasses the creation, enhancement,
preservation, rehabilitation, or replacement of natural resources. Such restoration bank
program shall be established through the promulgation of rules and regulations under the
Administrative Procedure Act and shall be submitted to the House Committee on Natural
Resources and Environment and the Senate Committee on Natural Resources for oversight.
The rules and procedures developed by the board shall do the following:
(a) Set forth a process and procedures for the certification and establishment of
restoration banks in the state, including criteria for adoption of a restoration banking
instrument. "Restoration banking instrument" is the documentation of state and bank
sponsor agreement on the objectives and administration of the bank that describes in detail
the physical and legal characteristics of the bank, including the service area, the types and
numbers of restoration credits expected to be generated, and how the bank will be established
and operated. "Restoration credit" means a unit of trade generated by a restoration bank
certified by the state and representing the increase in the ecological value of the bank site,
as measured by acreage, ecological function, or another recognized assessment method.
(b) Ensure certification is provided only to restoration banks meeting the
requirements of this Chapter and the rules and procedures promulgated by the board.
(c) Ensure priority for certification is given to restoration banks that enhance the
resilience of coastal resources to inundation and coastal erosion.
(d) Ensure certification is provided only to restoration banks for which the
restoration banking sponsor has secured adequate financial assurance and permanent legally
enforceable protection for any restored lands or resources. "Financial assurance" means the
money or other form of financial instrument required of the sponsor of a restoration bank to
ensure that the functions of the bank are achieved and maintained over the long term.
(e) Establish criteria for determining service areas for restoration banks.
(f) Establish criteria for operation and monitoring of restoration banks.
(g) Establish ecological success criteria or performance standards for restoration
banks.
(h) Establish a system for calculating the number and type of restoration credits
generated by a restoration bank.
(i) Establish a system for the transfer or sale of restoration credits to a responsible
party or natural resource trustee and for the transfer of liability for restoration from a
responsible party to the restoration bank sponsor in a manner that provides natural resource
trustee agencies with certainty as to restoration outcomes.
(2) Neither the state nor any state agency may act as a natural resource damage
restoration bank sponsor under the provisions of this Subsection. For the purposes of this
Subsection, a "bank sponsor" is a person or entity responsible for developing and operating
a natural resource damage restoration bank.
I. The board may adopt rules establishing a compensation schedule for the
unauthorized discharge of oil in coastal areas. The compensation schedule shall be adopted
under the provisions of the Administrative Procedure Act and submitted to the House
Committee on Natural Resources and Environment and the Senate Committee on Natural
Resources for oversight. "Unauthorized discharge of oil" means any actual or threatened
discharge of oil not authorized by a federal or state permit as provided in R.S. 30:2451 et
seq., the Oil Spill Prevention and Response Act. Any compensation schedule adopted
pursuant to this Section shall reflect adequate compensation for unquantifiable damages or
for damages not quantifiable at reasonable cost and shall take into account the following:
(1) Characteristics of any oil spilled, such as toxicity, dispersibility, solubility, and
persistence, that may affect the severity of the effects on the receiving environment, living
organisms, and recreational and aesthetic resources.
(2) The sensitivity of the affected areas as determined by such factors as the
following:
(a) The location of the spill.
(b) Habitat and living resource sensitivity.
(c) Seasonal distribution or sensitivity of living resources.
(d) Areas of recreational use or aesthetic importance.
(e) The proximity of the spill to important habitats for birds, aquatic mammals, fish,
or to species listed as threatened or endangered under state or federal law.
(f) Significant archaeological resources as determined by the division of archaeology
of the Department of Culture, Recreation and Tourism.
(g) Other areas of special ecological or recreational importance, as determined by the
authority.
(3) Actions taken by the party who spilled oil or any other responsible party for the
spill that include the following:
(a) Demonstrating a recognition and affirmative acceptance of responsibility for the
spill, such as the immediate removal of oil and the amount of oil removed from the
environment.
(b) Enhancing or impeding the detection of the spill, the determination of the
quantity of oil spilled, or the extent of damage, including the unauthorized removal of
evidence such as injured fish or wildlife.
J. The board shall submit to the House Committee on Natural Resources and
Environment and the Senate Committee on Natural Resources by January fifteenth of each
calendar year a report listing each restoration bank certified under the provisions of
Subsection H of this Section, including the names of the principals involved in the bank,
every restoration credit traded over the past twelve months, and the two parties between
whom the credits were traded.
K.(1) The board shall broadcast over the internet live audio and video streams of all
its board meetings in which votes are scheduled to occur.
(2) All meetings broadcast in accordance with Paragraph (1) of this Subsection shall
be recorded, archived, and made accessible to the public for at least six years after the date
of the meeting.
(3) The provisions of this Subsection shall not apply to executive sessions held in
accordance with the Open Meetings Law as provided in R.S. 42:11 et seq.
(4) The audio and video records created pursuant to this Subsection shall not be
construed in a manner to be the official record, or any part of the official record, of the
proceedings of a meeting of the board.
(5) If the board is precluded from fulfilling the requirements of this Subsection due
to a technical problem beyond its control, or when the only meeting room available lacks the
equipment necessary to facilitate internet broadcast, the failure to broadcast or record the
proceedings of a meeting of the board shall not be construed to be a violation of the
provisions of this Subsection. However, the board shall take no votes at this meeting.

Legislative History

Acts 2009, No. 320, §1; Acts 2009, No. 523, §3, eff. July 10, 2009; Acts 2010, No. 734, §6; Acts 2012, No. 604, §3, eff. June 7, 2012; Acts 2014, No. 527, §1, eff. June 5, 2014; Acts 2015, No. 69, §1; Acts 2016, No. 362, §1; Acts 2018, No. 157, §1, eff. May 15, 2018.