11 AAC 110.255. Proposed consistency determination

(a) In developing a proposed consistency determination, the coordinating agency shall give careful consideration to all comments. The coordinating agency shall give a commenting resource agency and coastal resource district with an approved plan due deference within that agency's or district's expertise or area of responsibility. In developing a proposed consistency determination and any applicable alternative measures, the coordinating agency must evaluate the applicability of the enforceable policies of the program to the proposed activity and decide how to afford due deference.

(b) Based on the comments received and other available information, the coordinating agency shall determine whether a consensus exists among the review participants regarding

(1) a project's consistency with the enforceable policies of the program; and

(2) any alternative measures that would achieve consistency with the enforceable policies of the program.

(c) If the comments indicate that a consensus does not exist among the review participants, the coordinating agency shall facilitate a discussion among the review participants to attempt to reach a consensus. If the review participants cannot reach consensus, the coordinating agency shall develop a proposed consistency determination that is based on the comments and positions of the resource agencies and affected coastal resource districts.

(d) If the coordinating agency substantially modifies or rejects an alternative measure requested by a commenting review participant within that participant's respective expertise or area of responsibility, the coordinating agency shall consult with the review participant and provide a brief written explanation stating the reasons for rejecting or modifying the alternative measure before issuing the proposed consistency determination.

(e) On or before Day 24 in a 30-day consistency review or Day 44 in a 50-day consistency review, the coordinating agency shall distribute a proposed consistency determination to the review participants, the applicant, and any person who submitted timely program comments under 11 AAC 110.510(a) and, if applicable, 11 AAC 110.510(b) .

(f) The proposed consistency determination must

(1) contain a description of the proposed project;

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

(3) propose to concur with or object to the applicant's consistency certification;

(4) contain a statement identifying the availability of an elevation under 11 AAC 110.600 and the deadline for submitting a request for elevation under that section; and

(5) be issued by electronic mail or facsimile to the applicant and each review participant that may request elevation under 11 AAC 110.600(a) .

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

(h) In addition to the requirements in (f) of this section, if an objection to the applicant's consistency certification is proposed, the coordinating agency shall notify the applicant of the objection and shall include in the proposed consistency determination

(1) an identification of the specific enforceable policies and the reasons why the proposed project is to be found inconsistent with those enforceable policies; and

(2) any alternative measure that, if adopted by the applicant, would achieve consistency with the specific enforceable policies identified under (1) of this subsection and an explanation of how the alternative measure would achieve consistency with those specific enforceable policies; the alternative measure must be described with sufficient specificity to allow the applicant to determine whether to

(A) adopt the alternative measure;

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

(i) If the applicant modifies the project under (h)(2)(B) of this section, or if the coordinating agency 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, the coordinating agency, with the applicant's concurrence, may issue a revised proposed consistency determination.

(j) The coordinating agency may immediately issue a final consistency determination under 11 AAC 110.260 if the review participants concur with the proposed consistency determination and the applicant adopts the alternative measures, if any, identified under (h)(2) of this section.

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

Authority: AS 46.39.010

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