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26.0220 Standards and criteria for review.

Cite as [A.S.A.C. § 26.0220]

A. As a requirement for approval, all projects shall satisfy or be conditioned to satisfy the following criteria:

1. The Project Notification and Review System shall be sensitive to the fa’aSamoa which means the traditional Samoan way of life, including but not limited to:

a. recognizing the village council authority in regards to maintaining harmony and welfare of the community; and

b. considering the village mitigation ordinances, village wetland resolutions or other applicable policies approved by the village council.

2. The proposed project shall not cause or threaten a substantial, or potentially substantial, adverse impact in or upon coastal resources.

a. Adverse impact means an alteration or the sum of alternations which would impair the long-term function, stability, or quality of an ecosystem or human community; which curtail the range of beneficial uses of the natural and cultural environment; which are contrary to territorial environmental laws or provisions of this chapter; or which adversely affect the economic, health, safety or social welfare of a community or the Territory.

b. Adverse impact includes, but is not limited to:

(1) alteration of chemical or physical properties of coastal or fresh waters so that they no longer provide a suitable habitat for natural communities;

(2) accumulation of toxins, carcinogens, or pathogens which threaten the welfare of humans or aquatic or terrestrial organisms;

(3) disruption of the ecological balances in coastal or fresh waters upon which natural biological communities depend;

(4) disruption or burial of marine or stream bottom communities;

(5) introduction of man-made substances foreign to the terrestrial or marine environment;

(6) disruption of archaeological/cultural/historic resources, properties of sites;

(7) disruption of agricultural, fishing activities or recreational opportunities; and

(8) disruption of the natural protective and beneficial functions of coastal resources.

3. The proposed project shall be compatible with existing adjacent uses and adopted plans;

4. That no alternative site exists for the proposed project and that no alternative construction methods exist which could avoid or lessen any adverse impacts to coastal resources;

5. The proposed project shall not cause an excessive demand on existing facilities and services.

B. The following standards of the Board shall be met for approval of a land use permit, provided that due deference shall be given to the Board member with jurisdiction of specific criteria and that the project, use or activity is consistent with the provisions of this chapter and the sections on Special Management Areas, wetlands, and coastal hazards:

1. Archaeological/cultural/historic resources

2. Commerical agricultural development

3. Major facility siting

4. Marine resources, reef, and fisheries protection and development

5. Recreation and public access

6. Water and air quality

7. Unique areas

C. Archaeological/cultural/historic resources.

1. The significant archaeological/cultural/historic resources of the Territory shall be protected and preserved.

a. Archaeological/cultural/historic resources means those sites, structures, and artifacts which possess material evidence of human life and culture of the prehistoric and historic past, or which have a relationship, including legendary, to events or conditions of the human past.

b. Protection and preservation shall be accomplished by the following procedures, provided that any federal undertaking as defined in the National Historic Preservation Act of 1966, as amended, 16 USC 470, et. seq., shall comply with section 106 of the Act.

(1) For projects over $250,000, the applicant is responsible for ensuring that the section 106 process is carried out.

(2) For projects under $250,000 dollars the Board will assume responsibility for identification, evaluation, assessment and mitigation. In this case the applicant will allow the Board access to the project area when necessary to carry out these procedures.

2. All archaeological/cultural/historic resources within the project, use or activity area shall be identified and evaluated for significance by a trained cultural resource specialist.

a. A trained cultural resource specialist includes an archaeologist; historian, or anthropologist who shall possess at least a masters of arts in their field and have one year of supervisory experience in their field.

b. The identification and evaluation shall be documented in a report following the American Samoa Historic Preservation Office guidelines. The report shall be submitted to the Board for review with a cover letter signed by the applicant.

3. An archaeological/cultural/historic resource is significant if the resource is:

a. at least fifty (50) years old, possesses historic integrity, and

b. is associated with events that have made a significant contribution to the broad patterns of Samoan history; or

c. is associated with the lives of persons significant in Samoan past; or

d. embodies the distinctive characteristics of a type, period, or method of construction, or that represents the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

e. has yielded, or may be likely to yield, information important in prehistory or history.

4. If the archaeological/cultural/historic resource is significant, an assessment shall be made as to whether the project may affect the historic resource. If the project may affect the historic resources, an assessment shall be made as to whether that effect will be adverse.

a. A project has an effect on an archaeological/cultural/historic resource when the project, use or activity may alter characteristics of the resource that qualify the resource as significant.

b. A project, use or activity is considered to have an adverse effect when the effect on an archaeological/cultural/historic resource may diminish the integrity of a location, design, settling, materials, workmanship, feeling, or association of a resource. Adverse effects on archaeological/cultural historic resources include, but are not limited to:

(1) Physical destruction, damage, or alteration of all or part of the resource.

(2) Isolation of the resource from or alteration of the character of the property’s setting when that character contributes to the significance of the resource.

(3) Introduction of visual, audible, or atmosphere elements that are out of character with the property or alter its setting.

(4) Neglect of a property resulting in its deterioration or destruction.

c. The assessment shall be documented in a letter report to the Board prepared by a cultural resource specialist and signed by the applicant. The letter report shall make and justify one of the following determinations:

(1) No effect; or

(2) No adverse effect (there will be an effect, but not an adverse one, e.g. repairing a roof on a historic structure with historically accurate materials and not altering the roof line); or

(3) Adverse effect.

5. If the effect on the historic resource may be adverse, mitigation shall be conducted by the applicant.

a. The applicant, in consultation with the Board, shall enter into a mitigation agreement that determines what mitigation shall occur.

b. Mitigation may include, but is not limited to:

(1) Avoidance of the historic property.

(2) Monitoring with data recovery.

(3) Data recovery.

(4) Museum displays related to the historic property adversely affected.

(5) Educational videos related to the historic property adversely affected.

(6) Research projects related to the historic property adversely affected.

6. If the effect will be adverse and no mitigation agreement can be reached, the Board may deny a permit to protect the historic resource.

7. The Board shall not grant a land use permit to an applicant who, with intent to avoid the requirements of this section, has intentionally adversely affected an archaeological/cultural/historic resource to which the land use permit would relate, or having legal power to prevent it, allowed such an adverse effect to occur; provided that the Board, after consultation with the applicant, determines that circumstances justify granting a land use permit despite the adverse effect created or permitted by the applicant and the applicant enters into a mitigation agreement with the Board.

D. Commercial agricultural development

1. Agricultural development shall be promoted in a manner consistent with sound agricultural practices which means the use of methods and technologies that maximize the potential for the long-term maintenance of soil fertility, and which minimize the escape of soil particles or agricultural chemicals to receiving waters.

2. Commercial and subsistence agriculture shall be encouraged on lands suitable for cultivation. Agricultural action shall be accompanied by best management practices designed to protect land and water resources and maintain crop yields, which include:

a. cultivation on suitable slopes;

b. use of adequate ground cover to prevent soil erosion;

c. proper use of pesticides, herbicides, and fertilizers;

d. techniques to maintain soil fertility; e.g. fallow periods; and

e. techniques to reduce non-point source pollution and protect water quality.

E. Major facility siting.

1. Major facility means, but is not limited to, construction or major repair of the following:

a. water supply systems;

b. water or sewage treatment plants;

c. solid-waste disposal areas and facilities;

d. power production, distribution and transmission facilities;

e. roads, highways, seaports, airports, aids to navigation;

f. major recreation areas; and

g. national defense installations.

2. Major facilities shall be sited and designed to minimize adverse environmental and social impacts and promote orderly and efficient economic development.

a. Major facilities not dependent on a waterfront location shall be located elsewhere, unless no feasible alternative sites exist;

b. All efforts shall be made so that water-dependent major facilities are accommodated through planning.

3. The Territory shall recognize identified regional benefits and national interests in the siting of major facilities and shall adequately consider them in major facility siting decisions.

4. A public hearing as provided by this chapter shall be required for all major facilities.

F. Marine resources, reef, and fisheries protection and development

1. Living marine resources and their habitats shall be protected from over harvesting or degradation, in accordance with ASCA §§ 24.0300 et. seq., the Department of Marine and Wildlife Resources Act.

2. Coral reefs shall be protected and restored.

a. Coral means any living aquatic organism of the subphylum cnidaria that are capable of secreting hard skeletal parts or can incorporate stony secretions within or around their tissues, including, but not limited to, hermatiyic corals, black coral, organpipe corals, fire corals, and lace corals.

b. Coral reef means a structure which may or may not be adjacent to the shoreline, formed and bounded by the gradual deposition and calcareous secretions of coralline materials.

c. Coral reefs and other submerged lands shall not be dredged, filled, or otherwise altered or channeled unless it can be demonstrated that there is a public need, there are no feasible, environmentally preferable alternatives, and unless measures are taken to minimize adverse impacts.

d. Coral reefs shall be protected from sedimentations, over fishing, runoff, and the impacts resulting directly and indirectly from other activities to the maximum extent feasible. Degraded reefs shall be restored wherever feasible.

3. Fisheries development shall be promoted in a manner consistent with sound fisheries management.

a. Shoreline areas suitable and necessary for the support of fishery development shall be reserved for such use.

b. Fisheries development shall be guided by a fisheries management program which conserves stocks, protects marine habitats, and maintains sustained yields.

4. Permissible uses for marine resources and habitats:

a. maintenance of highest levels of water quality;

b. non-structural projects preserving fish and wildlife habitat, and

c. creation of underwater preserves.

5. Conditional use for marine resources and habitats:

Dredging of low or moderately productive corals and reefs associated with permitted uses and activities for which there is a demonstrated public need.

6. Prohibited uses for marine resources and habitats:

a. destruction of reefs and corals not associated with permitted projects; and

b. taking corals for other than scientific study.

7. Ofu Territorial Marine Park, Fagatele Bay National Marine Sanctuary, and the National Park of American Samoa

a. The irreplaceable marine and coastal resources of Ofu Territorial Marine Park, Fagatele Bay National Marine Sanctuary, and the National Park of American Samoa shall be protected as a resources for present and future Samoans to the greatest content possible.

b. Land use permit applications for sites adjacent to Ofu Territorial Marine Park and Fagatele Bay National Marine Sanctuary, shall be rigorously reviewed to ensure minimum adverse impact to marine and coastal resources, including water-quality, habitat, fish and wildlife, and recreational opportunities.

G. Recreation and public access

1. Recreation opportunities and shorefront public access shall be improved and increased for the public.

a. The acquisition, siting, development, and maintenance of varied types of recreation facilities that are compatible with their surrounding landscape and land uses, and which serve the recreation and shorefornt public access needs of villages shall be promoted.

b. Acquisition and/or use agreements and minimal development of passive recreation sites such as marine and wildlife conservation areas, scenic overlooks, trails, parks, and historic sites shall be promoted.

1. Public access to and along the ocean shall be maintained, improved and increased in accordance with ASCA §§ 18.0100 et. seq., the Department of Parks and Recreation Act., including:

a. shorefront areas suitable for recreation use shall be reserved for such use and physical access to these areas shall be provided where feasible; and

b. visual access to the ocean from the road parallel to and near the shoreline shall be maintained where feasible.

2. Public lands shall be managed to maintain physical and visual public access. Where public access must be eliminated because of security or other reasons, similar access shall be created as near as practical to the curtailed access.

H. Water and air quality

1. Water quality shall be maintained.

a. Territorial water quality standards shall be the standards of the American Samoa Coastal Management Program and land use permit applications shall adhere to those standards, in accordance with ASCA §§ 24.0100 et. seq., the Environmental Quality Act.

b. Consistent with Territorial water quality standards, degraded water quality shall be restored to acceptable levels and potential threats to water quality shall be prevented where feasible.

c. Non-point source pollution shall be controlled through implementation of best management practices.

2. Safe drinking water shall be protected and maintained.

a. Territorial safe drinking water standards shall be the standards of the American Samoa Coastal Management Program and land use permit applications shall adhere to those standards, in accordance with ASCA §§ 24.0100 et. seq., the Environmental Quality Act.

b. Drinking water sources, including aquifer recharge areas, above and below ground, shall be protected from contamination due to sedimentation, saltwater intrusion, or other sources of pollution.

c. Drinking water systems shall be improved to protect public health and welfare.

3. High standards of air quality shall be maintained.

a. Territorial air quality standards shall be the standards of the American Samoa Coastal Management Program and land use permit applications shall adhere to those standards, in accordance with ASCA §§ 24.0100 et. seq., the Environmental Quality Act.

b. Consistent with Territorial air quality standards, degraded air quality shall be restored to acceptable levels and potential threats to air quality shall be prevented when feasible.

I. Unique Areas

1. Unique areas and their values shall be protected from adverse impacts. Development in areas adjacent to unique areas shall be rigorously reviewed to prevent impacts that would significantly degrade such areas.

2. Critical habitats shall be protected, conserved and managed in the Territory.

a. Critical habitat means a land or water area where sustaining the natural characteristics is important or essential to the productivity of plant and animal species, especially those that are threatened or endangered.

b. Threatened or endangered species means a species listed by the Department of Marine and Wildlife Resources as being threatened, or endangered, in accordance with ASCA §§ 24.0700 et. seq., the Endangered Species Act and ASCA §§ 24.2300 et. seq., the Conservation of Flying Foxes Act.

c. No taking of endangered or threatened species shall be allowed.

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