11 AAC 110.440. Proposed consistency response to a federal consistency certification.

(a) The office shall develop, using the process established in 11 AAC 110.255(a) - (d) and (j), a proposed consistency response to a federal consistency certification that meets the requirements of (b) and, as applicable, (c) or (d) of this section.

(b) On or before Day 44 of the consistency review, the office shall provide the applicant, the federal agency, each review participant, an agency that commented on the project, and a person who submitted timely program comments under 11 AAC 110.500(a) and, if applicable, 11 AAC 110.500(b) with a proposed consistency response that

(1) contains a description of the proposed project;

(2) contains a description of the scope of the project subject to consistency review;

(3) indicates whether

(A) a concurrence with the applicant's federal consistency certification is proposed; or

(B) an objection to the applicant's federal consistency certification is proposed; and

(4) contains a statement identifying the availability of an elevation under 11 AAC 110.600 and the deadline for submitting a request for elevation under 11 AAC 110.600.

(c) In addition to the requirements in (b) of this section, if a concurrence with the applicant's federal consistency certification is proposed, the proposed consistency response must include an explanation of how the proposed project is consistent with the applicable enforceable policies of the program.

(d) In addition to the requirements in (b) of this section, if an objection to the applicant's federal consistency certification is proposed, the office shall provide the proposed objection and any proposed alternative measure in the form and manner required by 15 C.F.R. 930.63(a) - (d). Any proposed alternative measure must include an explanation of how the alternative measure would achieve consistency with the applicable enforceable policies of the program. The alternative measure must be described with sufficient specificity to allow the applicant to determine whether to

(1) adopt the alternative measure;

(2) otherwise modify the project to achieve consistency with the enforceable policies of the program;

(3) abandon the project; or

(4) file an appeal under 15 C.F.R. 930.120 - 930.131.

(e) The office, with the applicant's concurrence, may issue a revised proposed consistency response

(1) based upon a project modification developed under (d)(2) of this section; or

(2) if the office is able to informally resolve an issue that has resulted or could result in the submission of a request for elevation under 11 AAC 110.600.

(f) The office may immediately issue a final consistency response under 11 AAC 110.445 so long as the review participants concur with the proposed consistency determination and the applicant adopts the alternative measures, if any, identified under (d) of this section.

(g) A proposed consistency response is not the final state agency concurrence or objection for purposes of 15 C.F.R. 930.62 - 930.63 and is subject to elevation under 11 AAC 110.600.

History: Eff. 7/1/2004, Register 170

Authority: AS 46.39.010

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