Title 26
Chapter 2
ADMINISTRATIVE RULES
(Adopted pursuant to the American Samoa Coastal
Management Act of 1990, ASCA § 24.0506, July 9, 1997.)
TABLE OF CONTENTS
26.0201 Adoption authority
26.0202 Purpose
26.0203 Construction
26.0204 Definitions
26.0205 Interagency coordination
26.0206 Establishment of the Project Notification and Review System;
jurisdiction, members, conduct of meetings, voting
26.0207 Land use permit application procedures,
fees, and penalties
26.0208 Types of activities: grandfathered, exempt, minor and major
projects
26.0209 Review of land use permit applications
26.0210
Land use permit: issuance, duration, and contents
26.0211 Land use permits: amendment
26.0212 States of emergency and emergency land use
permits
26.0213 Monitoring and regulation, authority and
duty
26.0214 Stop work orders
26.0215
Citations
26.0216 Revocation of land use permit
26.0217
Standing
26.0218 Motion for reconsideration and special land
use permits
26.0219 Appeals
26.0220 Standards and criteria for review
26.0221 Special Management Areas
26.0222 Wetlands
26.0223 Coastal hazards
26.0224 Territorial environmental assessments
26.0225
National Environmental Policy Act
26.0226 Federal Consistency
26.0227 Public Information and Education
26.0228 Public records
26.0229 Severability
ADMINISTRATIVE RULES
26.0201 Adoption
authority. The American Samoa Coastal
Management Program administrative code is adopted pursuant to authority granted
the Department of Commerce under Public Law 21-35, the American Samoa Coastal
Management Act of 1990, ASCA §§ 24.0501 et. seq.
26.0202 Purpose. The provisions of this chapter govern the
administration of the American Samoa Coastal Management Program. The Act mandates the establishment of a
system of environmental review, along with economic and technical
considerations, at the territorial level intended to ensure that environmental
concerns are given appropriate consideration in the land use decision-making
process. The provisions of this chapter
establish a consolidated land use permitting process, known as the Project
Notification and Review System, including development standards, procedures for
the designation, planning and management of Special Management Areas,
procedures for environmental assessments, and procedures for determination of
federal consistency. The provisions of
this chapter are not intended to negate or otherwise limit the authority of any
agency of the Territory, provided that actions by agencies shall be consistent
with the provisions contained herein.
The provisions of this chapter are consistent with the Coastal Zone
Management Act of 1972, as amended, 16 USC §§ 1451 et.
seq.
26.0203 Construction. The provisions of this chapter shall be
construed to secure the just and efficient administration of the Act. In any conflict between a general provision
and a specific provision, the specific shall control over the general.
26.0204 Definitions. The following definitions shall apply:
A. Act means the American Samoa Coastal Management Act of
1990, ASCA §§ 24.0501 et. seq.
B. Agency means any executive, autonomous, or legislative
board, department, office, commission, committee, or other instrumentality
created by the Revised Constitution of American Samoa of 1967, the American
Samoa Code Annotated, the American Samoa Administrative Code, or by executive
order of the Governor.
C. Applicant means any person or agency of the
territorial or federal government who, pursuant to the Act and provisions of
this chapter, files an application for a land use permit.
D. Best management practices means economically
achievable measures through the application of the best available practices,
technologies, processes, siting criteria, operating methods, or other
alternatives that will reduce, limit, or improve developmental impacts within
the coastal zone.
E. Board means the Project Notification and Review System
Board.
F. Chair means the Chair of the Project Notification and
Review System Board.
G. Coastal resource means the land, air, water, minerals,
flora, fauna, and objects of historic or aesthetic significance of the
Territorial coastal zone. Coastal
resources include, but are not limited to, submerged lands, reef systems,
groundwater recharge areas, archaeological/cultural/historic resource sites and
properties, Special Management Areas, pristine ecosystems, mangroves, wetlands,
beaches, areas of scientific interest, recreational areas, undisturbed native
vegetation, and critical habitat.
H. Container mans a single rigid, intermodal dry cargo,
insulated refrigerated, flat rack, liquid tank, or open door container,
demountable, without wheels or chassis attached, furnished or approved by ocean
carriers for transportation of commodities aboard ocean going vessels. Modules are generally known as 20-footers and
40-footers, even though they may be less than twenty (20) or forty (40) feet in
length. Sean vans (types used for
household goods) or other similar shipping container or cargo boxes are
excluded from this definition.
I. Days mean normal calendar days, including holidays,
unless otherwise indicated “business days.”
J. Director means the Director of the Department of
Commerce or his designee.
K. Environment means humanity’s surroundings, inclusive
of all the physical, economic, and social conditions that exist within the area
affected by a proposed action, including land, human, and animal communities,
air, water, minerals, flora, fauna, and objects of historic or aesthetic
significance.
L. Feasible means capable of being accomplished in a
reasonable period of time, taking into account economic, social, technological,
and environmental factors. Use of this
word includes, but is not limited to, the concept of reasonableness and
likelihood of success in achieving the project goal or purpose.
M. Feasible alternatives means alternatives to the proposed project, use or
activity, and applies both to locations or sites, to methods of design or
construction, and includes a “no action” alternative.
N. Federal government means the government of the
O. Manager means the American Samoa Coastal Management
Program Manager who is responsible for the overall implementation and
administration of the American Samoa Coastal Management Program.
P. Matai means the titled head of a Samoan extended
family, the Sa’o.
Q. Person means any individual, partnership, firm,
association, trust, estate, private corporation, an
agency of the territorial or federal government or other legal entity.
R. Public need means a need of the people of the
Territory as opposed to the needs of an individual or group of
individuals. In assessing whether there
is a public need, one must look at the basic service provided and to whom the
service is provided. The basic purpose
must be one for which a village, group of villages, county, district, or the
Territory, has a demonstrated need.
S. Pulenu’u means the official representing central
government in a village; the village mayor.
T. Sami means shoreline and refers directionally towards
the ocean or away from the mountains.
U. Sustained yield means resource management used to
achieve a balance between the rates of renewable resource consumption and
renewal, recruitment, or productivity.
V. Territory means the United States Territory of
American Samoa.
W.Water-dependent means a project, use or action, which
can be carried out only on, in, or adjacent to water
areas because it requires access to water.
X. Water-related means a project, use or action which is
not directly dependent upon access to a water body, but which provides goods or
services that are directly associated with a water-dependent use.
26.0205 Interagency coordination.
A. All territorial agencies and their employees shall
conform to the provisions of this chapter.
These agencies shall ensure that their activities, or any possible
indirect result of their activities, shall further the purposes, objectives and
policies of the Act.
B. The Director shall schedule periodic meetings or
workshops with the Board member agencies in order to ensure that practices and
procedures under the provisions of this chapter are fully understood to
maximize coordination, thoroughness, and attainment of the purposes, objectives
and policies of the Act and the provisions of this chapter.
26.0206 Establishment
of the Project Notification and Review System:
jurisdiction, members, conduct of meetings,
voting.
A. There is established and consolidated within the
Department of Commerce a steamlined land use permit system that integrates the
permitting requirements of each of the territorial agencies concerned with
environmental management and shall be known as the Project Notification and
Review System.
B. The jurisdiction of the Project Notification and
Review System shall be the coastal zone of American Samoa.
1. Coastal zone or coastal zone area means the coastal
waters, including the waters therein and thereunder, in proximity to the
shorelines of the Territory, and includes islands, transitional and intertidal
areas, salt marshes, wetlands, and beaches.
The coastal zone extends inland from the shorelines to the extent
necessary to control the shore, the use of which has a direct and significant
impact on the coastal waters. Excluded
from the coastal zone are lands the use of which is by law subject solely to
the discretion of or which is held in trust by the federal government, its
officers or agents, and to control those geographical areas which are likely to
be affected by or vulnerable to sea level rise.
2. The
C. Members of the Project Notification and Review System:
1. The Project Notification and Review System shall be
administered by the Project Notification and Review System Board.
2. Members of the Board shall be the directors or their
designee of the Territory agencies which have permitting or regulatory
authority on land use development and environmental matters in the coastal
zone.
3. The Board includes the following:
a. Department of Commerce;
b.
c.
d.
e. Department of Health;
f. Department of Marine and Wildlife Resources;
g. Department of Parks and Recreation; and
h. Department of Public Works.
4. The Director shall appoint an ex-officio Chair who
shall chair regular and special meetings and public hearing, but who shall not
vote, provided that if the Board is evenly divided, then the Chair shall cast
the deciding vote.
5. The American Samoa Coastal Management Program shall
provide support staff for the Board and all necessary supplies.
D. Meetings
1. The Board shall convene regular meetings or special
meetings at times and places as determined by the Chair. Minutes of all meetings shall be kept and
shall be reviewed and approved by the Board and made available to the public
upon request. Board proceedings shall be
informal and presided over by the Chair.
The presence of five (5) members shall constitute a quorum.
a. Regular meetings shall be scheduled for the first and
third Wednesday of each month, unless the Director determines that rescheduling
is appropriate due to a public holiday or a government function.
b. Special meetings may be scheduled by the Director upon
receiving a written request from a land use permit applicant that the Board’s
review of a project, use or activity is necessary rather than at the regular
meeting dates. All procedures and
policies shall be applied to special meetings.
2. All meetings of the Board shall be open to the public
and public notice shall be given. The
Board may adjourn and reconvene in executive session for the purpose of
consulting with staff regarding legal, technical, and personnel matters. Minutes of the executive session are
confidential and shall be stored in such a manner to protect confidentiality.
E. Voting
1. All sections by the Board shall be by vote and
publicly cast.
2. Each member agency shall have one vote.
3. Unless otherwise provided by the provisions of this
chapter all actions taken by the Board shall be by majority vote of those
present.
4. All Board members participating in decisions regarding
land use permits shall do so in a fair and impartial manner.
a. Board members shall not participate in decisions on
land use permit where there exists and appearance or an actual conflict of
interest.
b. If any member agency of the Board submits a land use
permit application, that member agency shall be recused
from voting on the proposed project.
c. A representative of a Board member agency who is
recused hereunder shall be counted for purposes of determining a quorum.
F. Pursuant to ASCA § 24.0506, any agency of the
Territory may be called upon by the Board to advise on projects relevant to
their particular authority or jurisdiction.
26.0207 Land use permit application procedures,
fees, and penalties
A. Applicability.
All persons proposing to undertake any action which may cause or
threaten an adverse impact to coastal resources shall apply for a land use
permit, except where specifically exempted by law.
1. A land use permit means a written authorization signed
by the Director on an approved form that authorizes a specified party to
undertake a specified project, use or action.
2. A land use permit application is necessary for all
physical project work, including, but not limited to, site preparation,
filling, grading, dredging, excavation, and erection or siting of
structures.
B. Burden on applicant.
In all cases, the burden is on the applicant to obtain the proper
permits and signatures required for the project prior to commencement of the
work. Federal permits may also be
necessary for certain projects. The
American Samoa Coastal Management Program will make reasonable attempts to
assist a land use permit applicant with federal permit application
requirements; however obtaining federal and territorial permits and approvals,
such as from the Zoning Board and the Territorial Planning Commission, remains
the responsibility of the applicant.
C. Preapplication consultation. A preapplication consultation may be held
between prospective land use permit applicants and the American Samoa Coastal Management
Program to determine the likelihood of the project, use or action being
proposed having an adverse impact on coastal resources requiring a land use
permit. If so determined, the American
Samoa Coastal Management Program shall make a preliminary determination whether
the project constitutes a major or minor project and shall assist the applicant
in identifying the information required to submit a land use permit
application. The American Samoa Coastal
Management Program shall also assist the applicant in understanding the
applicable provisions and procedures of the Act and the provisions of this
chapter and shall assist the applicant in scheduling any necessary subsequent
meetings.
D. Scoping meetings for major projects. For those projects, uses or activities of
sufficient complexity that benefits might be derived from preliminary
assessment by several agencies, a scoping meeting of the Board, and other
invited agency and members of the public, may be requested by the prospective
applicant or any member of the Board.
Such scoping meetings shall be solely for the purpose of discussing
conceptually the proposed project, in order to obtain preliminary feedback as
to the type and degree of impact analysis that may be required, and to
determine, if possible, any other local and federal permits that may be
required.
E. When to file.
Land use permit application forms shall be made available at the
Department of Commerce. The completed
land use permit application shall be filed with the Department of Commerce for
review at any time during normal business hours.
F. Application package.
1. The land use permit application shall be accompanied
by the following documents:
a. a vicinity map;
b. a fully dimensioned site plan that shall include
topographic data at a scale appropriate to discern the principal features of
the site, a functional floor plan, a container plan, and a parking plan;
c. an erosion control plan necessary to reduce non-point
source pollution that includes existing contours and proposed final grading of
the site, existing and proposed drainage, a description of adjacent and down
slope sites, and a narrative of how the proposed drainage plan will impact
those sites;
d. a federal
consistency certification (or if a federal agency, a consistency determination)
and an environmental assessment, if applicable; and
e. any other supporting documentation that may be required
by law or by the provisions of the chapter.
2. All information submitted with the application or at
any other time in the review process shall be public information, provided that
certain proprietary information, not material to a review of project
compliance, may be withheld if requested in writing to the Chair and such
request is approved.
G. Information requirements. The land use permit application shall contain
at a minimum the following information:
1. applicant’s name, mailing address, and telephone
number;
2. applicant’s representative, if any, and architect,
engineer or contractor, if any, including their mailing address and telephone
number;
3. applicant’s interest in the project site, e.g., owner,
lessee;
4. name of the landowner or the matai for the project
site;
5. signature of the matai, if communal land;
6. signature of the pulenu’u, if communal land;
7. signature of the secretary of Samoan Affairs if,
communal land;
8. signature of the Governor, if government land;
9. copy of the legal title to the land, if privately
owned land;
10.
copy of lease or
license agreement, if title is held under such agreement;
11.
project name and
description;
12.
concise written
narrative describing the project and its function;
13.
site description
and location;
14.
construction
methods, including dredge, fill or excavation requirements, if any;
15.
total project
cost for all projects and, if federal funds are involved, funding source;
16.
distance of
project from the shoreline, if project is located within two hundred feet
(200’) of the shoreline;
17.
current and
projected utility requirements and connections, including streets, sewer,
water, electricity, fuel (including storage on site) and all existing and
proposed line locations, including size and engineering requirements;
18.
statement of
compliance with the policy objectives of the American Samoa Coastal Management
Program
19.
copies of all
correspondence on the project with the Board member agencies or any other
governmental agency; and
20.
copies of all federal permits or applications or
documentation from the appropriate agency showing that the project is being
carried out pursuant to an existing federal permit, license, or grant.
H. Declaration of applicant. A land use permit application shall include a
signed declaration by the applicant that the information supplied in the land
use permit application, including all exhibits and attachments, is true and
correct, under penalty of law.
I. Administrative fees and penalties. At the time of filing a land use permit
application, payment of an administrative fee is required. The “Cost of Project” shall be determined in
accordance with the Uniform Building Code as adopted in the Territory, and
shall include all improvements associated with the project. There shall be no administrative fee for
government agency-funded projects or projects of not-for-profit U.S. Internal
Revenue Code § 501(c)(3) corporations; however,
penalties shall be assessed for government and not-for-profit projects that
commence prior to the Director issuing a land use permit.
1. Administrative fees shall be set in accordance with
the following fee schedule: