Alaska Statutes: AS 46.40.096. Consistency Reviews and Determinations.

Alaska Statutes. Title 46. Water, Air, Energy, and Environmental Conservation Chapter 40. The Alaska Coastal Management Program Section 96. Consistency Reviews and Determinations.

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AS 46.40.096. Consistency Reviews and Determinations.

(a) The department shall, by regulation, establish a consistency review and determination process that conforms to the requirements of this section.
(b) If a consistency review is not subject to AS 46.39.010 because the project for which a consistency review is made requires a permit, lease, or authorization from only one state resource agency, that state resource agency shall coordinate the consistency review of the project. The state resource agency shall coordinate the consistency review according to the requirements of the regulations adopted by the department under this section.
(c) The regulations adopted by the department under this section must include provisions for public notice and provide the opportunity for public comment. The regulations adopted under this subsection may make distinctions relating to notice based upon differences in project type, anticipated effect of the project on coastal resources and uses, other state or federal notice requirements, and time constraints. However, a notice given under this subsection must contain sufficient information, expressed in commonly understood terms, to inform the public of the nature of the proposed project for which a consistency determination is sought, and must explain how the public may comment on the proposed project.
(d) In preparing a consistency review and determination for a proposed project, the reviewing entity shall

(1) request consistency review comments for the proposed project from state resource agencies, affected coastal resource districts, and other interested parties as determined by regulation adopted by the department;

(2) prepare proposed consistency determinations;

(3) coordinate subsequent reviews of proposed consistency determinations prepared under (2) of this subsection; a subsequent review of a proposed consistency determination under this paragraph

(A) is limited to a review by the department;

(B) may occur only if requested by

(i) the project applicant;

(ii) a state resource agency; or

(iii) an affected coastal resource district; and

(C) shall be completed by the department within 45 days after the initial request for subsequent review under this paragraph;

(4) render the final consistency determination and certification.
(e) [Repealed, Sec. 9 ch 29 SLA 2002].
(f) [Repealed, Sec. 9 ch 29 SLA 2002].
(g) The reviewing entity shall exclude from the consistency review and determination process for a project

(1) an activity that

(A) is authorized under a general or nationwide permit that has previously been determined to be consistent with the Alaska coastal management program; or

(B) is subject to authorization by the Department of Environmental Conservation under the requirements described in AS 46.40.040 (b);

(2) activities excluded from a consistency review under AS 41.17; and

(3) the issuance of an authorization or permit issued by the Alaska Oil and Gas Conservation Commission.
(h) Notwithstanding any other provision of law, and except with respect to an appeal filed by the applicant or an affected coastal resource district, or a claim based on the United States Constitution or the Constitution of the State of Alaska, a consistency determination made under this section is

(1) not subject to review, stay, or injunction by any court; and

(2) effective immediately.
(i) For purposes of those activities of a proposed project that are subject to (g)(1)(B) of this section, the consistency of those activities is determined by the issuance of the applicable permits, certifications, approvals, and authorizations by the Department of Environmental Conservation.
(j) Except as provided in AS 41.17, 16 U.S.C. 1456, and 15 C.F.R. Part 930, a consistency review of a project under this section is triggered by an activity within the areas described in (l) of this section that is subject to a state resource agency permit, lease, authorization, approval, or certification.
(k) Except as provided in (g) of this section, AS 41.17, AS 46.40.040(b), and AS 46.40.094 , the scope of a consistency review of a project, once triggered under (j) of this section, is limited to activities that are located within the areas described in (l) of this section and that either are subject to a state resource agency permit, lease, authorization, approval, or certification or are the subject of a coastal resource district enforceable policy approved by the department under this chapter. The scope of a consistency review subject to 16 U.S.C. 1456 is determined under 16 U.S.C. 1456 and 15 C.F.R. Part 930.
(l) The regulations adopted under (a) of this section apply, as authorized by 16 U.S.C. 1456(c), to

(1) activities within the coastal zone; and

(2) activities on federal land, including the federal outer continental shelf, that would affect any land or water use or natural resource of the state's coastal zone; for purposes of this paragraph, those activities consist of any activity on the federal outer continental shelf and any activity on federal land that are within the geographic boundaries of the state's coastal zone notwithstanding the exclusion of federal land in 16 U.S.C. 1453(1).
(m) As part of the regulations adopted under (a) of this section, the department shall establish a list of permits, certifications, leases, approvals, and authorizations issued by a state resource or federal agency that will trigger a consistency review under (j) of this section. In addition, the department shall establish in regulation categories and descriptions of uses and activities that, for purposes of evaluating consistency with the Alaska coastal management program, are determined to be categorically consistent or generally consistent after the inclusion of standard alternative measures. These categories of uses and activities must be as broad as possible so as to minimize the number of projects that must undergo an individualized consistency review under this section.
(n) Except as provided in (o) of this section, a consistency review under this section shall be completed within 90 days after the receipt of a complete application by the state. If a consistency review is not completed by the time specified in this subsection, the activity subject to review is conclusively presumed consistent.
(o) The time limitations in (n) of this section

(1) do not apply to a consistency review involving the disposal of an interest in state land or resources;

(2) are suspended

(A) from the time the reviewing entity determines that the applicant has not adequately responded in writing within 14 days after the receipt of a written request from the reviewing entity for additional information, until the time the reviewing entity determines that the applicant has provided an adequate written response;

(B) during a period of time requested by the applicant;

(C) during the period of time a consistency review is undergoing a subsequent review under (d)(3) of this section.
(p) A consistency review and determination for those activities of a project not excluded under (g) of this section may not be delayed or withheld pending issuance of the permits, certifications, approvals, and authorizations referred to in (g) of this section but shall proceed regardless of the status of those permits, certifications, approvals, and authorizations.
(q) In this section,

(1) "affected coastal resource district" means a coastal resource district in which a project is proposed to be located or which may experience a direct and significant impact from a proposed project;

(2) "reviewing entity" means the

(A) Department of Natural Resources, for a consistency review subject to AS 46.39.010 ;

(B) state agency identified in (b) of this section, for a consistency review not subject to AS 46.39.010 .

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