26.0208 Types of activities; grandfathered, exempt, minor and major projects.

Cite as [A.S.A.C. § 26.0208]

A. Grandfathered use.

1. Grandfathered use means any non-conforming structure that was a previously lawful project, use or activity existing as of May 29, 1980, the date that the Act was enacted, but that is not in conformity with the current provisions.

2. Grandfathered uses may be continued, provided that any grandfathered use or building shall conform with the provisions of this chapter, if the project, use or activity:

a. Changes to another use.

b. Resumes after discontinuance for a period of one year or more.

c. Alters or extends the footprint of the structure.

3. The American Samoa Coastal Management Program shall certify that the structure is grandfathered under the provisions of this chapter for utility connection.

B. Exempt activity.

1. Exempt activities means projects which do not adversely impact coastal resources, and thus shall not require a land use permit.

2. Exempt activities include:

a. constructing and maintaining a Samoan umu or cook house, or a faleo’o or small guest house;

b. maintaining or repairing an existing single family home or other structure, that does not change the footprint, increase dimensions, or change the use of the structure;

c. connecting utilities, including water, sewer, and electricity, provided that a valid land use permit or a grandfather certificate exists for the structure for which the connection is requested;

d. siting intermodal containers or freezer containers for the purposes of loading and off-loading which does not exceed thirty (30) days; provided that if siting exceeds thirty (30) days, placement of containers shall be classified as a major project;

e. landscaping, including clearing and grading, that does not exceed ten (10) cubic yards of topsoil, provided that cider shall not be used;

f. erecting non-permanent structures for political campaign, public service or fund raising activities and government sponsored cultural celebrations, events or activities that do not exceed seventy-two [72] hours;

g. traditional Samoan uses which means low-intensity or low-density traditional subsistence or communal uses and practices, which use traditional methods and materials. Such uses may not surpass the sustained yield of any given resource; and

h. subsistence taking and gathering of animals, fish, sea creatures or vegetation historically used in the Samoan islands by traditional methods for the personal use of the immediate family; except that:

(1) animal husbandry, including piggeries, shall be classified as a major project;

(2) subsistence hunting, fishing, and agricultural activities do not include commercial, for profit or for barter activities.

(3) subsistence activities, while exempt from the need for a land use permit, are not exempt from compliance with other federal or territorial laws or regulations.

3. If a person assumes that the project, use or activity is exempt, and the American Samoa Coastal Management Program later determines that the project is not exempt, but rather that the project, use or activity is a minor or major project, the person is responsible for administrative fees, after-the-fact penalties for building without a valid land use permit, and any possible citations that may have been issued as consistent with this chapter.

C. Minor projects.

1. Minor projects means any project, use or action that may have an adverse impact on coastal resources, particularly when viewed within the context of the cumulative or secondary impacts; provided that, where the location of project has the potential for significant adverse impacts on coastal resources, the project, use or activity shall be deemed a major project.

2. Minor projects include:

a. constructing a single family home;

b. constructing Samoan cultural facilities including: fautasi boat houses, faletalimalo or guest house, and fale leoleo or guardhouses;

c. constructing structures or extensions to existing non-commercial structures that do not exceed one hundred twenty (120) square feet; and

d. erecting non-permanent structures that shall not exceed thirty (30) days, provided that this section shall not apply to the placement of intermodal containers or freezer containers.

D. Major projects.

1. Major projects means a proposed project, use or action which is likely to have significant adverse impact on coastal resources.

2. Major projects include, but are not limited to:

a. creating, expanding, or extending any commercial activity;

b. siting permanently or continually replacing intermodal containers or freezer container, including enclosing, connecting utilities, or any other permanent action which exceed thirty (30) days;

c. creating a new, or relocating an existing, discharge of pollutants to ocean, surface, or ground waters;

d. substantially increasing the volume of discharge or the loading of pollutants, including air pollution, from an existing source or from new facilities to receiving waters;

e. significantly impacting the quality of the human environment, either individually or cumulatively;

f. siting major facilities;

g. landfilling, excavating, disposing of dredged materials, mining, quarrying;

h. incinerating private, municipal or medicinal wastes;

i. dredging or filling marine or fresh waters, point source discharging of water or air pollutants, ocean dumping, or constructing artificial reefs;

j. establishing or expanding agriculture or livestock facilities, including:

(1) silviculture or timber operations;

(2) aquaculture facilities, which means the culture or commercial production of freshwater or marine plants or animals for research or food production; and

(3) subsistence animal husbandry, including piggeries.

k. contaminating ground water, including underground injection of hazardous wastes or fluids used for extraction of minerals or oil, or of certain other fluids with potential to contaminate ground water;

l. projects, uses or activities under the direct or indirect jurisdiction of a federal agency, including:

(1) those carried out by or on behalf of the agency;

(2) those carried out with federal financial assistance;

(3) those requiring a federal permit, license, or approval; and

(4) those subject to territorial or local regulation administered pursuant to a delegation or approval by a federal agency.

m. locating any project use or action within or adjacent to a Special Management Area, or any other designated resource management area of the Territory, including but not limited to the following;

(1) Fagatele Bay National Marine Sanctuary;

(2) American Samoa Tia Seu Lupe Monument;

(3) National Park of American Samoa; and

(4) Ofu-Vaota Marine Park.

n. project, uses or activities the cost of which is greater than $250,000;

o. project, uses or activities that have the potential for significant adverse impacts on floodplains, coastal hazards areas or erosion prone sites; or

p. in the view of any single agency member of the Board, are found to have the potential for a significant adverse impact on coastal resources.

History: Rule 8-80 (Ex. Ord. 03-80); ASCMP Reg. (Ex. Ord. 07-88); Rule 2-97, eff 4 Aug 97.