[Code of Federal Regulations]

[Title 15, Volume 3]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 15CFR923.42]



[Page 207-208]

 

                  TITLE 15--COMMERCE AND FOREIGN TRADE

 

CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT 

                               OF COMMERCE

 

PART 923_COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS--Table of Contents

 

                 Subpart E_Authorities and Organization

 

Sec. 923.42  State establishment of criteria and standards for local 

implementation--Technique A.



    (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 

Sec. 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



[[Page 208]]



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.