26.0226 Federal Consistency.

Cite as [A.S.A.C. § 26.0226]

A. Application. Federal actions (including direct federal activities and development projects, federal license or permit activities, and federal assistance activities) shall be conducted consistent the provisions of this chapter, if the action is reasonably likely to affect any land or water use of natural resource of American Samoa’s coastal zone, pursuant to the federal regulations, 15 C.F.R. part 930 and any federal consistency guidance provided by the American Samoa Coastal Management Program.

B. American Samoa Coastal Management Program responsibility. The Manager is responsible for reviewing a federal agency’s consistency determination, an applicant’s consistency certification, and a territorial or local government’s application for financial assistance, and shall inform the Board of the undertaking and shall inform all other government agencies with relevant jurisdiction and permitting authority to apply the goals, purposes, policies and objectives of the Act and the provisions of this chapter; and applicable territorial air and water quality standards, rules, and regulations.

C. Public comment. Public comments are invited on the American Samoa Coastal Management Program’s review of a federal agency’s consistency determination and an applicant’s consistency certification.

1. Direct federal activities. The American Samoa Coastal Management Program shall publish in a newspaper of general circulation in the Territory, a public notice in accordance with the provisions of this chapter on major projects, which will include: a summary of the proposal; state that the information submitted by the federal agency is available for public inspection; and that public comments may be made to the Manager within thirty (30) days of the first publication.

2. Federal license or permit activities. An applicant for a federal approval that is subject to the requirements of this chapter shall publish, on forms provided by the American Samoa Coastal Management Program, in a newspaper of general circulation in the Territory, a public notice which shall include: a summary of the proposal; state that the information submitted by the applicant agency is available for public inspection; and that public comments may be made to the Manager within thirty (30) days of the first publication.

D. Territorial permits. If any federal action subject to this chapter also requires a land use permit or any other permit or approval from the Territorial Government, the project proponent shall prepare a land use permit application simultaneously with their federal consistency determination or certification.

E. Listed Federal licenses or permits. The federal agency licenses and permits that the Manager shall review for consistency with the American Samoa Coastal Management Program are:

1. Permits required from the Department of Commerce, Office of Ocean and Coastal Resource Management, Sanctuaries and Reserves Division, for activities within Marine Sanctuaries under 33 USC 1401-1444;

2. Permits required from the Department of Defense, U.S. Army Corps of Engineers for:

a. Permits under sections 9 and 10 of the Rivers and Harbors Act, authorizing the construction of dams and dikes, and the obstruction of navigable waters.

b. Permits under section 4(F) of the Outer Continental Shelf Lands Act and amendments, authorizing artificial islands or fixed structures on the Outer Continental Shelf.

c. Permits under section 103 of the Marine Protection Research and Sanctuaries Act, authorizing the transport of dredged material for ocean dumping.

d. Permits under section 404 of the Clean Water Act, authorizing discharges of dredged and fill material into navigable waters (also subject to state certificate of reasonable assurance, under section 401 of the Clean Water Act).

3. Permits required by the Department of Energy and the Federal Energy Regulatory Commission for:

a. Licenses required for non-Federal hydroelectric projects and primary transmission lines under section 3(ll), 4(e), and 15 of the Federal Power Act, 16 USC 796(ll), 797(e) and 808).

b. Certificates of public convenience and necessity for the construction and operation of natural gas pipeline facilities, including both interstate pipeline and liquid natural gas terminal facilities under section 7 (c) of the Natural Gas Act, 15 USC 717(f)(c) ).

4. Permits required by the Environmental Protection Agency for:

a. Permits required under section 402 of the 1972 Federal Water Pollution Control Act and amendments, authorizing discharge of pollutants into navigable waters. (Also, subject to state certificate of reasonable assurance, Clean Water Act section 401.)

b. Permits required under section 405 of the 1972 Federal Water Pollution Control Act and amendments, authorizing disposal of sewage sludge.

c. Permits for new sources or for modification of existing sources and waivers of compliance allowing extensions of time to met air quality standards under section 112(c)(1) of the 1972 Clean Air Act.

d. Exemption granted under the Clean Air Act for stationary sources.

5. Permits and licenses required for the Nuclear Regulator Commission for the siting, construction, and operation of nuclear facilities.

6. Permits required for the Department of Transportation. United States Coast Guard for:

a. Permits for construction of modification of bridge structures and causeways across navigable waters.

b. Permits for siting, construction, and operation of deep water ports.

c. If, in the future, it is found that the issuance of other types of federal permits and licenses cause direct and significant impact on coastal land and water resources, the Manager will either seek to review the activity as an unlisted activity pursuant to 15 CFR 930.54 and/or the Manager will seek to amend this list.

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