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TITLE 31NATURAL RESOURCES AND CONSERVATION
PART 16COASTAL COORDINATION COUNCIL
CHAPTER 506COUNCIL PROCEDURES FOR FEDERAL CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM GOALS AND PRIORITIES
RULE §506.12Federal Agency Actions, Federal Agency Activities and Development Projects, and Outer Continental Self Plans Subject to the Coastal Management Program

(a) For purposes of this section, the following federal actions within the CMP boundary may adversely affect coastal natural resource areas (CNRAs):

  (1) Federal Agency Activities and Development Projects:

    (A) United States Department of the Interior. Modifications to the boundaries of the Coastal Barrier Resource System under 16 United States Code Annotated, §3503(c);

    (B) United States Environmental Protection Agency. Selection of remedial actions under 42 United States Code Annotated, §9604(c);

    (C) United States Army Corps of Engineers:

      (i) small river and harbor improvement projects under 33 United States Code Annotated, §577;

      (ii) water resources development projects under 42 United States Code Annotated, §1962d-5;

      (iii) small flood control projects under 33 United States Code Annotated, §701s;

      (iv) small beach erosion control projects under 33 United States Code Annotated, §426g;

      (v) operation and maintenance of civil works projects under the Code of Federal Regulations, Title 33, Parts 335 and 338;

      (vi) dredging projects under the Code of Federal Regulations, Title 33, Part 336;

      (vii) approval for projects for the prevention or mitigation of damages to shore areas attributable to federal navigation projects pursuant to 33 United States Code Annotated, §426i; and

      (viii) approval for projects for the placement on state beaches of beach-quality sand dredged from federal navigation projects pursuant to 33 United States Code Annotated, §426j;

    (D) Federal Emergency Management Agency:

      (i) model floodplain ordinances; and

      (ii) approval or suspension of a community's eligibility to sell flood insurance under the Code of Federal Regulations, Title 44, Part 59, Subpart B;

    (E) General Services Administration:

      (i) acquisitions under 40 United States Code Annotated, §602 and §603; and

      (ii) construction under 40 United States Code Annotated, §605; and

    (F) All federal agencies:

      (i) all other development projects; and

      (ii) natural resource restoration plans developed pursuant to the Oil Pollution Act of 1990 (33 United States Code Annotated §§2701-2761) and the Comprehensive Environmental Response, Compensation and Liability Act (42 United States Code Annotated §§9601-9675);

  (2) Federal Agency Actions:

    (A) Environmental Protection Agency:

      (i) National Pollution Discharge Elimination System (NPDES) permits under 33 United States Code Annotated, §1342;

      (ii) ocean dumping permits under 33 United States Code Annotated, §1412;

      (iii) approvals of land disposal of wastes under 42 United States Code Annotated, §6924(d);

      (iv) development of total maximum daily loads (TMDLs) and associated federally developed TMDL implementation plans under 33 United States Code Annotated, §1313; and

      (v) approvals of National Estuary Program Comprehensive Conservation Management Plans under 33 United States Code Annotated, §1330f;

    (B) United States Army Corps of Engineers:

      (i) ocean dumping permits under 33 United States Code Annotated, §1413;

      (ii) dredge and fill permits under 33 United States Code Annotated, §1344;

      (iii) permits under §9 of the River and Harbor Act of 1899, 33 United States Code Annotated, §401;

      (iv) permits under §10 of the River and Harbor Act of 1899, 33 United States Code Annotated, §403; and

      (v) Memoranda of Agreement for mitigation banking;

    (C) United Stated Department of Transportation:

      (i) approvals under §7(a) of the Federal-Aid Highway Amendments Act of 1963, 23 United States Code Annotated, §106; and

      (ii) approvals under §502 of the General Bridge Act of 1946, 33 United States Code Annotated, §525;

    (D) Federal Aviation Administration. Airport operating certificates under 49 United States Code Annotated, §44702;

    (E) Federal Energy Regulatory Commission:

      (i) certificates under §7 of the Natural Gas Act, 15 United States Code Annotated, §717f;

      (ii) licenses under §4 of the Federal Power Act, 16 United States Code Annotated, §797(e); and

      (iii) exemptions under §403 of the Public Utility Regulatory Policies Act of 1978, 16 United States Code Annotated, §2705(d);

    (F) Nuclear Regulatory Commission. Licenses under §103 of the Atomic Energy Act of 1954, 42 United States Code Annotated, §2133.

  (3) State and Local Government Applications for Federal Assistance. Federal assistance for state and local government activities that may adversely affect CNRAs. Federal assistance does not include applications from local governments and subdivisions to the Texas Water Development Board for financial assistance through the State Water Pollution Control Revolving Fund or the Colonia Wastewater Treatment Assistance Program.

(b) For purposes of this section, the following are federal actions outside the CMP boundary but within OCS waters, or on excluded federal land located within the coastal zone, that may adversely affect CNRAs.

  (1) Federal Activities and Development Projects for all federal agencies: Activities in OCS waters or within the coastal zone occurring within federal lands excluded from the CMP boundary buat which may adversely affect CNRAs.

  (2) Federal Agency Actions:

    (A) United States Department of the Interior:

      (i) permits under §11 of the Outer Continental Shelf Lands Act, 43 United States Code Annotated, §1340, in OCS waters; and

      (ii) rights-of-way under §5(e) of the Outer Continental Shelf Lands Act, 43 United States Code Annotated, §1334(e), in OCS waters;

    (B) Environmental Protection Agency:

      (i) NPDES permits under 33 United States Code Annotated, §1342, in OCS waters;

      (ii) ocean dumping permits under 33 United States Code Annotated, §1412, in OCS waters;

    (C) United States Army Corps of Engineers. Ocean dumping permits under 33 United States Code Annotated, §1413, in OCS waters;

    (D) United States Department of Transportation: Deep water port licenses under 33 United States Code Annotated, §1503, in OCS waters.

  (3) OCS Exploration, Development, and Production Activities. United States Department of the Interior:

    (A) Federal agency actions described in detail in OCS plans, including pipeline activities, that may adversely affect CNRAs;

    (B) OCS lease sales within the western and central Gulf of Mexico under 43 United States Code Annotated, §1337.

(c) In the event that a proposed activity requiring a state agency or subdivision action that falls below thresholds for referral approved under Chapter 505, Subchapter B of this title (relating to Council Certification of State Agency Rules and Approval of Thresholds for Referral) requires an equivalent federal permit or license under this chapter, the council may only determine the state agency or subdivision action's consistency by using the process provided in Chapter 505 of this title (relating to Council Procedure for State Consistency with Coastal Management Program Goals and Policies). The council's determination regarding the consistency of an action under this subsection constitutes the state's determination regarding consistency of the equivalent federal action.

(d) If an activity requiring a state agency or subdivision action above thresholds requires an equivalent federal permit or license, the council may determine the consistency of the state agency or subdivision action or the federal license or permit, but not both.

(e) The determinations regarding the consistency of an action made by the council under subsections (c) and (d) of this section constitute the state's determination regarding consistency of the equivalent agency or subdivision action or federal action.

(f) On a one-time basis, and subject to the provisions of paragraph (1) of this subsection and federal law, the council may elect to review a proposed federal agency activity of a type that is not listed in subsection (a)(1) of this section, a proposed federal license or permit action of a type that is not listed in subsection (a)(2) of this section, or a state or local government application for federal assistance of a type that is not listed in subsection (a)(3) of this section.

  (1) Once the council has reviewed a proposed federal agency activity of a type that is not listed in subsection (a)(1) of this section, the council may not review any other proposed federal agency activity of that type under this subsection.

  (2) Once the council has reviewed a proposed federal license or permit action of a type that is not listed in subsection (a)(2) of this section, the council may not review any other proposed federal license or permit action of that type under this subsection.

  (3) Once the council has reviewed a state or local government application for federal assistance of a type that is not specifically listed in subsection (a)(3) of this section, the council may not review any other state or local government application for federal assistance of that type under this subsection.

  (4) Except as provided in this subsection, the list of federal actions described in subsection (a) of this section is an exclusive list of federal agency activities, licenses and permits, and state and local government applications for federal assistance that are subject to council review. The council may amend the list of actions and activities described in subsection (a) of this section from time to time, and any federal actions or activities described in such amended lists shall be subject to council review.

(g) If the council determines a federal agency action or application for federal assistance to be consistent with the CMP goals and policies, subsequent actions taken by state agencies or subdivisions or federal agencies to implement the activity described in the application shall not be subject to review by the council if the application for the federal agency action or federal assistance describes the activity in sufficient detail to determine consistency of the completed activity


Source Note: The provisions of this §506.12 adopted to be effective June 15, 1995, 19 TexReg 7695; amended to be effective November 3, 1995, 20 TexReg 8676; amended to be effective June 9, 1998, 23 TexReg 5987; amended to be effective September 20, 1998, 23 TexReg 9407; amended to be effective August 27, 2000, 25 TexReg 8046; amended to be effective January 28, 2004, 29 TexReg 639

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